Filed: May 11, 1999

Corrected order filed: May 19, 1999

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 98-2513

(CA-96-1005-L)

Angela L. Brown,

Plaintiff - Appellant,

versus

Donna E. Shalala, etc.,

Defendant - Appellee.

CORRECTED ORDER

The court amends its opinion filed May 3, 1999, as follows:

On page 3, 4, and 5 - all references to “EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION, WASHINGTON, D.C.” are corrected to read

“EEOC.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
Filed: May 11, 1999

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 98-2513

(CA-96-1004-L)

Angela L. Brown,

Plaintiff - Appellant,

versus

Donna E. Shalala, etc.,

Defendant - Appellee.

ORDER

The court amends its opinion filed May 3, 1999, as follows:

On page 3, 4, and 5 - all references to “EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION, WASHINGTON, D.C.” are corrected to read

“EEOC.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANGELA J. BROWN,

Plaintiff-Appellant,

v.

No. 98-2513

DONNA E. SHALALA, SECRETARY,

UNITED STATES DEPARTMENT OF

HEALTH AND HUMAN SERVICES,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Benson E. Legg, District Judge.

(CA-96-1005-L)

Argued: April 8, 1999

Decided: May 3, 1999

Before WILKINS, WILLIAMS, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Alice Patricia Frohman, Washington, D.C., for Appellant.

Albert David Copperthite, Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia,

United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Angela Brown filed suit in the United States District Court claiming that her employer, the National Institutes of Health (the NIH), had

breached a settlement agreement that resolved earlier discrimination

claims by releasing confidential personnel records to the Department

of Labor and to the Postal Inspector. Additionally, Brown claimed

that the NIH's release of this information was discriminatory and

retaliatory and thus violated Title VII, 42 U.S.C.A. §§ 2000e-3 (West

1994) & 2000e-16 (West 1994 & Supp. 1998).

After determining that the settlement agreement required that the

personnel information be kept confidential only from prospective

employers, and that neither the Department of Labor nor the Postal

Inspector were prospective employers, the district court granted summary judgment to the NIH. The district court also concluded that

Brown failed to establish a prima facie case of a Title VII violation.

Brown appeals these rulings. Finding no error, we affirm.

Summary judgment is appropriate when a party who will bear the

burden of proof at trial fails to make a factual showing sufficient to

establish an element essential to the case. See Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). We review the district court's

grant of summary judgment de novo and view the facts in the light

most favorable to Brown. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986) (noting that the facts and all inferences reasonably drawn therefrom are to be viewed in favor of the non-moving

party).

Brown, a black female, was employed at NIH as a GS-6, step 10,

Secretary-Typist. When she began work at the NIH, she advised the

personnel department that she had a workers' compensation claim

pending from her prior employment at the Post Office based upon

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tendinitis in her wrists, which affected her joints and fingers, and carpal tunnel syndrome. As a result of those conditions, she requested

that she be assigned primary duties other than typing. Nevertheless,

after her first month of employment, the NIH increased Brown's typing duties. Shortly thereafter, Brown's neurologist issued letters

describing her carpal tunnel syndrome and stating that typing was

contraindicated for her condition. Brown's supervisor continued to

require that she type.

Brown's supervisor also put her on special leave procedures under

which she was required to sign in and out whenever she left the office

for more than five minutes. Because allegedly insufficient medical

documentation had been provided in support of an absence, Brown

was put on leave without pay and charged with being AWOL. Additionally, Brown was suspended for three weeks without pay for failing to follow the special leave procedures and for insubordinate

behavior. Following these disciplinary actions, Brown was injured in

a car accident, and, although she submitted letters from her doctor

stating that she could not return to work for an extended period of

time, her supervisor found them to be insufficient. As a result, Brown

was terminated for failing to follow the special leave procedures, producing insufficient documentation, and remaining AWOL for two

months after the car accident.

During the course of her employment at the NIH, Brown had filed

several EEO complaints, alleging discriminatory treatment on the

basis of race and disability. Additionally, Brown had filed an EEO

complaint alleging that her supervisor had retaliated against her for

filing the previous EEO complaints. All of the EEO complaints were

settled pursuant to an agreement between the NIH and Brown dated

March 31, 1992.

The settlement agreement provided, inter alia, that Brown would

submit an SF-52 form, Request for Personnel Action, that would indicate resignation, and that the suspensions and AWOL references

would be expunged from her personnel folder and changed to leave

without pay notations. Additionally, the NIH agreed:

[T]o provide Ms. Brown with a written letter of reference.

This letter of reference provided by the Agency is designed

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to preclude the necessity of Ms. Brown's prospective

employers contacting the [NIH] directly. No future references will be provided by the [NIH] for Ms. Brown. Information contained in any of Ms. Brown's files at the NIH

will remain confidential.

(J.A. at 21 (¶ 6).)

Three months later, in July 1992, Brown filed another disability

claim. In response to the claim, the Department of Labor requested

Brown's leave records. The NIH answered the request and submitted

Brown's leave records showing the original AWOL and suspension

notations, as well as additional markings noting that the suspensions

had been changed to leave without pay pursuant to a settlement agreement. The Department of Labor eventually denied Brown's claim for

benefits because she had been dismissed for cause. Later, Brown discovered that similar information had been revealed by the NIH to a

Postal Inspector in the course of his work gathering information

regarding Brown's initial workers' compensation claim filed while

she was working for the Post Office.

As a result of the release of the information contained in her personnel file, Brown filed a complaint at the EEOC alleging

that the NIH had breached the settlement agreement. The EEOC

found that no breach of the settlement agreement had

occurred because the confidentiality provisions in the agreement

applied only to prospective employers.

Thereafter, Brown filed a complaint in district court claiming that

the NIH breached the settlement agreement by failing to keep

Brown's records confidential as required in paragraph six of the

agreement. In addition, Brown alleged that the breach of the agreement constituted a pattern of continuing discrimination on the basis

of race and retaliation in violation of Title VII. In response to the

complaint, the NIH filed a "Motion to Dismiss, or in the Alternative,

Motion for Summary Judgment." (J.A. at 22.) The district court construed all allegations contained in the complaint as true and determined that Brown did not raise a genuine issue of material fact on her

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claim of breach of the settlement agreement. Furthermore, the district

court ruled that Brown could not make out a prima facie case under

Title VII, because the NIH's actions did not constitute adverse

employment action.

In its review of the NIH's motion for summary judgment, the district court viewed paragraph six of the settlement agreement as a

whole and concluded that the paragraph should not be interpreted as

Brown urged, providing a blanket confidentiality requirement applicable to all parties seeking Brown's leave information. Rather, the district court determined, as the EEOC had, that

the paragraph was intended to apply only to prospective employers.

Because the Department of Labor and Postal Inspector were seeking

information regarding Brown's leave time in order to assess workers'

compensation claims and not for any reason related to prospective

employment, the district court ruled that no breach of paragraph six

of the settlement agreement had occurred.

Brown filed a timely notice of appeal. Before us, Brown asserts

that the district court erred in granting summary judgment to the NIH

because the plain language of paragraph six of the agreement requires

that Brown's personnel records remain confidential. Further, Brown

argues that the NIH violated paragraph two of the agreement, in

which it agreed to expunge the negative attendance references from

Brown's personnel records. Additionally, Brown claims that the district court erred in reaching the conclusion that Brown had suffered

no adverse employment action.

We have reviewed the record, briefs, and pertinent case law in this

matter, and we have had the benefit of oral argument. Our careful

review persuades us that the rulings of the district court were correct.

Accordingly, we affirm on the reasoning set forth in the district

court's opinion. See Brown v. Shalala, C. No. L-96-1005 (D. Md.

Aug. 6, 1998).

AFFIRMED

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