The opinion of the court was delivered by: Judge Blanche M. Manning
Susan Krueger filed suit against the Secretary of the Department of Veterans Affairs alleging various federal and state law claims related to her April 2006 involuntary commitment at the Department's Edward Hines Jr. Hospital ("Hines"). After the government's motion to dismiss, Krueger's federal Privacy Act claim survived.*fn1 The government has moved for summary judgment as to this claim, which, for the reasons stated below, the court grants.
I. Current Posture of Case and Plaintiff's Pro Se Status
After the parties had briefed and submitted their papers on the government's motion for summary judgment, the court struck those papers because the government failed to authenticate the documents upon which it was relying for summary judgment. The government subsequently filed affidavits authenticating the documents, and sought to reinstate its original motion for summary judgment. The government's motion to reinstate was granted and the court permitted Krueger to revise her responses to the motion for summary judgment and the government's statement of fact, which she did. While the government notes that Krueger's response brief on the CM/ECF docket appears to be cut off at only 13 pages, it received a 20-page response brief (not including the certificate of service) directly from Krueger, as did this court. The court will therefore consider Krueger's entire 20-page response and directs the clerk to place this document on the docket. The government then filed a new reply brief. The court now addresses the fully briefed motion*fn2 , but first comments on Krueger's pro se status.
Krueger requested appointment of counsel at the beginning of the case; however, the court denied it based on its careful consideration under the factors articulated in Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995); Dkt. #6-1. The court notes that, in any event, Krueger did not appear to be indigent at the time the court considered her motion as she advised the court that her monthly income was over $4,000. Dkt. ## 4-1 and 5-1, Krueger's Motion for Leave to Proceed In Forma Pauperis and Motion for Appointment of Counsel. Krueger has proceeded in a competent fashion throughout this case, including capably defending a motion to dismiss filed by the government as well as affirmatively bringing a motion to compel discovery she sought from the government. The court urged the parties to resolve the motion to compel on their own, which they apparently were able to do as there were no subsequent requests by Krueger to renew the motion.
Pursuant to Rule 56.2, the government provided the required notice to Ms. Krueger regarding her pro se summary judgment filings. Dkt. #52-1. Nevertheless, the government notes in its reply that Krueger has failed to properly respond to the government's statement of material facts. For example, Krueger denied many of the statements of fact largely based on her own view of events, but fails to support these denials with any citation to the record, contrary to Local Rule 56.1(b)(3(B), which requires that "in the case of any disagreement [by the respondent], specific references to the affidavits, parts of the record, and other supporting materials relied upon" must be made. Moreover, she did not file her own statement of additional facts pursuant to Local Rule 56.1(b)(3)(c).
Krueger's failure to comply with the Local Rules is not excused by her pro se status. See Stevens v. Navistar Int'l Transp. Corp., 244 F. Supp. 2d 906, 910 (N.D. Ill. 2002) (holding that even though the court reads a pro se plaintiffs pleadings liberally, pro se status does not excuse a failure to comply with Local Rule 56.1). Nevertheless, given Krueger's pro se status, the court will construe her filings liberally. The court will consider the factual assertions she makes in her response to the defendants' statement of facts but only to the extent that the plaintiff could properly testify about the matters asserted. See Fed R. Evid. 602 (a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter).
In addition, construing Krueger's responses liberally, the court has attempted to include all of the relevant facts that are properly supported and note relevant disagreements. To the extent Krueger appears to deny or contradict immaterial facts, the court disregards those denials as they do not affect the outcome of the case. As such, the court addresses the government's motion.
Krueger was employed as a systems and procedures analyst at Hines' service and distribution center from January 2002 until her retirement in September 2006.*fn3 On April 28, 2005, Krueger and Hines human resources employee, Victoria Jones-Khalil, corresponded via e-mail regarding Krueger's receipt on April 27, 2005, of a written reprimand from supervisor Teresita Larican. The reprimand concerned Krueger's unauthorized use of her government travel card to obtain a $350.00 cash advance. The reprimand explained that if Krueger believed it was unjustified, she could appeal pursuant to her union agreement. It also stated that any appeal had to be filed through Krueger's supervisor within 15 days of receiving the reprimand and that Krueger could contact Jones-Khalil for assistance in that process.
In the e-mail exchange between Krueger and Jones-Khalil, Jones-Khalil stated that Krueger was "obligated to go to the union first." After several e-mail exchanges with Krueger on the grievance issue and Krueger's indication that she wanted to appeal the letter of reprimand to personnel at the human resources department, Jones-Khalil faxed a copy of the reprimand letter to Krueger's union representative, Brenda Woodall. Jones-Khalil requested that Woodall contact Krueger as soon as possible about the proper grievance process. Krueger contends that she was not required to seek union help, did not want this help and, in any event, the union did not offer to represent her. Plaintiff Exh. B at pages 12-13.
On April 4, 2006, supervisor Annette Crayton issued Krueger a letter of counseling admonishing Krueger for yelling and being generally disrespectful towards Crayton when she confronted Krueger about her poor performance. In that letter, Crayton reminded Krueger about the Employee Assistance Program ("EAP"), a counseling program maintained by federal agencies. Krueger contends that she never yelled at or was disrespectful towards Crayton. Krueger also asserts that the letter from Crayton was about Krueger being three minutes late to work, not poor performance.
On April 7, 2006, Krueger attended a counseling session with EAP social worker, Carlos Anchondo. According to Achondo's notes from that meeting, Krueger reported feeling stressed and anxious about her work, and further stated that she coped by drinking and exercising, and had thoughts of hurting others. Anchondo noted, however, that she was "without a plan." Krueger denies that she had a counseling session with Anchondo on April 7, 2006, and in support, compares her timecard from April 7, 2006, which contains no special notations, with one from April 13, 2006, which indicates an "authorized absence" for a counseling session she had with Achondo that day. The court notes that in contradiction to Krueger's assertion that she did not have a counseling session with Achondo on April 7, 2006, her own set of exhibits which were attached to her original responses to the government's statement of facts contained the "Counseling and Contact Report" from the April 7, 2006, visit. See Plaintiff's original Exhibit A at page 21.
On April 13, 2006, Krueger attended another EAP counseling session with Anchondo. The parties' version of events as to this counseling session differs. Anchondo's notes from that session indicate that Krueger quickly became insistent that she needed to get out of her current job and when asked how she was coping stated, "I'm homicidal" and that she "felt angry enough to hurt someone." Anchondo noted during the meeting that Krueger became increasingly upset, tearful and then much quieter and that when asked about her feelings, she twice repeated that she was homicidal and that "maybe" she had suicidal ideations.
According to Anchondo, he then sought assistance from EAP employees Maryanne Blacconiere and Michael Rauen. Blacconiere, a social worker, assisted Achondo in calming Krueger down and convinced her to report to the Hines emergency room. Hines police officers responded to a call made by the EAP office and escorted Krueger, with her agreement, to the emergency room.
In Krueger's response, she disagrees with various parts of the above statements of fact, but does not refer to any portion of the record in support. According to Krueger, she never said she was homicidal or felt angry enough to hurt anyone and she never discussed "repeated homicidal comments" with Anchondo. She also states that she did not feel comfortable with Anchondo because he acted bizarrely by abruptly leaving the room when they were talking. She refers to Blacconiere as a "disheveled" looking woman who "interrupted" the counseling session and denies that Blaconniere helped her calm down. Krueger contends that she has never seen Rauen and that when she left Achondo's office, she was surprised to see a police officer there but was under the "erroneous impression" that he would treat her fairly. Krueger also contends that she felt forced to go to the Hines emergency room.
While in the Hines emergency room, Krueger reported to the psychiatrist, Dr. Christopher Adams, a history of alcohol abuse since 1988. She also refused to let physicians contact her family or supervisor for additional information regarding her medical history. Although Krueger denies that she told anyone she had a history of alcohol abuse, the psychiatric evaluation that was done at Hines states that "the pt admits to drinking regularly since 1988." See Government Exh. E at 8. The emergency room physicians, Dr. Adams and Dr. K. Tummula, concluded that Krueger needed to be involuntarily committed for evaluation at a private hospital. A social worker at Hines, Deborah Strzok, contacted Krueger's insurer and obtained a list of providers, which included MacNeal Hospital in Berwyn. Krueger was later transported in an ambulance to MacNeal Hospital on that same day and was discharged the following week on April 20, 2006.
In response to several of the government's statements relating the above facts, Krueger discusses various other topics, including the propriety of her involuntary commitment, alleged violations of Illinois law, and apparent billing issues between her insurer and MacNeal. However, as these arguments are not relevant to her Privacy Act claim, the court will not further recount them here.
Krueger returned to work at Hines in mid-June 2006 but was denied access to her workplace because she did not have the appropriate documentation from a mental health provider indicating that she was capable of returning to work. Krueger states that this was the first time that she was informed that she needed such medical documentation.
While the parties debate whether it was two days or a few weeks later, Krueger returned to work soon thereafter when she obtained a proper note from her physician. Krueger initiated this pro se lawsuit in June 2006 and then filed a second amended complaint in November 2006 raising various other claims in addition to her claim under the Privacy Act of 1974, 5 U.S.C. § 552a.
In March 2007, this court dismissed three of Krueger's four claims as alleged in her second amended complaint with only the Privacy Act surviving. Dkt. #30-1. Nevertheless, Krueger's summary judgment papers appear to contain allegations with respect to claims that were not previously alleged or that already have been disposed of. To the extent that Krueger attempts to raise new claims at this stage of the litigation, such attempt is improper and the court will not consider them. Only the Privacy Act claims are properly at issue at this point.
III. Krueger's Allegations
Based on a liberal reading of all of the issues raised in the summary judgment papers, the court construes the following allegations as implicating the Privacy Act:*fn4
* when Jones-Khalil, without Krueger's permission, sent a fax to Brenda Woodall, the union representative, regarding Krueger's supposed desire to file a grievance ...