LAWRENCE F. STENGEL, District Judge.
Plaintiff Richard Boandl, a former IRS agent, claims he was the victim of employment discrimination based on his disability, age, and gender while an employee of the Treasury Department. Defendant Timothy Geithner, Secretary of the Treasury, has filed a motion for partial summary judgment. For the reasons set forth below, I will grant the motion in part and deny it in part.
Richard Boandl was born on October 21, 1948 and began working for the Internal Revenue Service ("IRS"), an arm of the United States Department of the Treasury, in 1973. Because he was infected with polio at a young age, Richard Boandl has been disabled for most of his life. Boandl Affidavit, Ex. 39 to Pl.'s Mem. In Opp'n to Def.'s Mot. To Dismiss, 1. He has a severe limp, he cannot stand for more than a few minutes at a time, and he requires a cane to walk short distances and a wheelchair to travel distances more than twenty yards. Id. at 1-2; Report of Dr. Norman Stempler, Pl.'s Ex. 16. From 1983 until October 1, 2004, Mr. Boandl was employed by the IRS as an Internal Revenue
In March of 2003, Mr. Boandl applied for a promotion to a vacant position as a Revenue Agent. Id. at ¶ 6. Eleven individuals applied for the position, and the selecting official, Duane Briggs, convened a three member ranking panel to evaluate the applications. Id. at ¶¶ 7, 8. A fifty-two year-old man, a fifty-five year-old man, and a forty year-old woman sat on the ranking panel.
In May of 2003, Mr. Boandl applied to another vacant Revenue Agent position. Id. at ¶ 18. The same general procedure that had taken place to fill the first vacancy was utilized again. Duane Briggs was again the selecting official, but the three-member ranking panel was made up of different individuals: a fifty-three year old man, a forty-one year old woman, and Diane Heasley, who became one of Mr. Boandl's supervisors and who was forty at the time. Id. at ¶ 22. The cut-off score for best qualified applicants for this position was 48.67,
Each applicant's ranking score for the positions was computed by adding two numbers: the total score from the applicant's last performance appraisal and a score for potential that each panel member awarded him or her. See id. at ¶¶ 29-30. Mr. Boandl's performance appraisal score was therefore based on a review conducted in 2002, the year before he applied for the vacant positions and before Ms. Heasley became his supervisor. Id. at ¶ 30.
On August 27, 2003, Mr. Boandl filed an Equal Employment Opportunity (EEO) complaint with the Treasury Department challenging his non-selection for both positions. Id. at ¶ 35.
Ms. Heasley became Mr. Boandl's supervisor in June 2003, and some time later in 2003, Mr. Boandl approached her to request a government-issued cell phone as a reasonable accommodation for his disability. Def.'s SMF ¶¶ 34, 36, 43; Pl's Resp. To Def.'s SMF, ¶ 36. The defendant claims Mr. Boandl did not make a cell phone request until December 11, 2003, while Mr. Boandl claims he did so earlier, in a verbal request made to Ms. Heasley on or about October 23, 2003. Def.'s SMF ¶ 36; Boandl Affidavit, 7. Because I am required to view the facts presented in the light most favorable to Mr. Boandl, I will assume that Mr. Boandl first made his request in October, 2003.
Mr. Boandl claimed he needed the cell phone to assist in his investigative duties, which required traveling outside his office to locate tax non-filers and visit witnesses. He averred that he told Ms. Heasley that "disability related barriers caused [him] much difficulty, such as, getting in and out of [his] car, walking, and standing; then, repeating the process until [he] was able to find a working pay phone." Boandl Affidavit, 7. According to Mr. Boandl, Ms. Heasley immediately denied his request. Id. Mr. Boandl then contacted an EEO Counselor who instructed him to email the cell phone request to Ms. Heasley. Pl.'s Resp. To Def.'s SMF, ¶ 41. Mr. Boandl did so, and claims that the December 11, 2003 email he sent to Ms. Heasley was therefore a second request. Id. Ms. Heasley provided Mr. Boandl a memorandum officially denying his request for a cell phone on January 20, 2004. Boandl Affidavit, 8; Def.'s SMF ¶ 41. On February 19, 2004, Mr. Boandl filed a second EEO complaint based on Ms. Heasley's refusal to issue him a cell phone. Id. at ¶ 51.
Mr. Boandl claims that a period of "unrelenting retaliation and harassment," primarily from Ms. Heasley, began about a month after he filed his first EEO complaint in August of 2003. Boandl Affidavit, 5. On September 24, 2003, Ms. Heasley issued a negative performance evaluation of Mr. Boandl's work. Id. On January 26, 2004, she noted in another review that Mr. Boandl sent a taxpayer a complimentary letter in violation of IRS procedures.
On February 3, 2004, Ms. Heasley informed Mr. Boandl during a meeting that his overall performance was unacceptable and specifically cited the complimentary taxpayer letter. Def.'s SMF ¶ 45. On February 10, 2004, Ms. Heasley and Mr. Boandl's "second line" supervisor, Mr. Briggs, referred the taxpayer letter to the Treasury Inspector General for Tax Administration (TIGTA) for investigation. While the defendant claims Mr. Boandl's issuance of a complimentary letter to a taxpayer violated IRS policy, Mr. Boandl disagrees, arguing that the IRS policy against sending letters to taxpayers applied only to initial contacts. Def.'s SMF ¶ 48; Pl.'s Resp. To Def.'s SMF ¶ 44.
Ms. Heasley issued Mr. Boandl an opportunity to improve letter on March 25, 2004. Def.'s SMF ¶ 52. In the letter, she informed him that he was failing to perform at an acceptable level, that he had 120 days to improve his performance, that his work would be subject to periodic review during the 120 day improvement period, and that he faced termination if he did not improve. Id. Ms. Heasley provided reasons for this negative evaluation, including Mr. Boandl's failure to complete work assignments on time, failure to spend the appropriate amount of time on assignments, issuance of taxpayer summonses without prior authorization, issuance of third-party letters, visits to taxpayer homes, and failure properly to document audit trails. Id. at ¶ 53. Mr. Boandl confirms that these were the reasons provided in the letter, but denies that these reasons were valid. Pl.'s Resp. To Def.'s SMF ¶ 53. In a memorandum dated March 25, 2004, Mr. Boandl was also informed that, because of his negative performance evaluation, he was no longer permitted to take part in the IRS' Flexiplace program, which had allowed him to perform certain work from home. Def. SMF ¶ 56. Prior to Ms. Heasley becoming his supervisor, Mr. Boandl had received generally satisfactory reviews of his work. Pl.'s SMF ¶ 22. For example, Mr. Boandl's performance was evaluated in May of 2002 by Kathleen Navarre. Her evaluation shows that on a scale from 1 to 5, Mr. Boandl scored either a 3 or a 4 on each of five essential job elements. Performance Evaluation, Boandl Ex. 20. The "summary level" for his job performance was "exceeds fully successful." Id.
On August 13, 2004, TIGTA completed a report concerning Mr. Boandl's issuance of the complimentary taxpayer letter, in which it concluded that Mr. Boandl had issued the letter but that he had not done so for financial gain. Id. at ¶¶ 62, 63. The TIGTA report also revealed that, in contravention of IRS rules, Mr. Boandl had issued taxpayer summonses without first receiving management approval. Id. ¶ 64. Mr. Boandl filed a third complaint of discrimination with the EEOC on November 11, 2004, concerning the TIGTA referral. Id. at ¶ 71.
On July 8, 2004, Mr. Boandl went on sick leave from his position with IRS. Id. at ¶ 58. On July 12, 2004, while Mr. Boandl was still on leave, Ms. Heasley issued another negative performance evaluation for him, rating his work as unacceptable. Id. at ¶ 59. On July 13, 2004, Mr. Boandl submitted a written memorandum to his supervisors stating that he planned to retire. Id. at ¶ 60. He formally applied for retirement on July 26, 2004. Id. at ¶ 61. On August 30, 2004 (after issuance of the TIGTA investigative report), Mr. Boandl informed the IRS that he would retire effective October 1, 2004. Id. at ¶ 68. He claims that, during the period when he was under Ms. Heasley's supervision, he suffered "negative feelings, such as [] anxiety, depression, sleeplessness, guilt, sadness, dejection, and worthlessness" and that he was "unable to experience pleasure or enjoyment." Boandl Affidavit, 6.
On September 30, 2007, almost three years after his retirement from IRS became effective, Mr. Boandl applied to the Treasury Department's Office of Professional Responsibility ("OPR") for "Enrolled Agent status," which would allow him to represent taxpayers before the IRS. Def.'s SMF ¶ 72. OPR was authorized to grant enrolled agent status to any person who qualified for such enrollment based on past service and experience with the IRS "and who had not engaged in conduct that would justify censure, suspension, or disbarment." Id. at ¶ 73. On October 16, 2007, OPR's director, Michael Chesman, wrote to the Territory Manager of the Planning and Special Program concerning Mr. Boandl's application. Id. at ¶ 74. It was standard practice for OPR to request a recommendation from an IRS executive familiar with the work of a former IRS employee. Id. at ¶ 75. The Territory Manager of the Planning and Special Program sent information from Mr. Boandl's file to Charles Brantley, the Director of the Heavy Manufacturing and Transportation Department. Id. at ¶ 76; Pl.'s Resp. To Def.'s SMF ¶ 76. The information sent to Mr. Brantley regarding Mr. Boandl indicated that Mr. Boandl had a 30-day suspension from employment with the IRS in 2001 for misusing his position and collecting money from a taxpayer. Def.'s SMF ¶ 76; Pl.'s Resp. To Def.'s SMF ¶ 76. Based on this information, Mr. Brantley informed OPR that he did not believe Mr. Boandl was qualified for enrolled agent status, citing the 2001 suspension. Def.'s SMF ¶ 77. It is Mr. Boandl's position that this information was false. Pl.'s Resp. To Def. SMF, ¶¶ 76, 77. He claims he never received a 30 day suspension and that he never resigned from his position with the IRS because he was instead forced into retirement. Id.
OPR Director Michael Chesman wrote to Mr. Boandl on February 1, 2008, informing
Mr. Boandl filed a fourth complaint of discrimination with the EEOC on May 23, 2008, concerning the information sent to OPR from Mr. Brantley about his application. Id. at ¶ 82.
Mr. Boandl filed a three count complaint in this court on October 19, 2009. In Count I of his complaint, Mr. Boandl alleges the Treasury Department violated the Rehabilitation Act, codified at 29 U.S.C. §§ 706 et seq., when it denied his applications for promotion, denied his request for a cell phone as an accommodation, denied him proper evaluations, and retaliated against him by subjecting him to pretextual evaluations and discipline following the filing of his first EEO complaint. Compl. ¶ 27. He claims the Rehabilitation Act entitles him to special affirmative action as a disabled employee. Id. at ¶ 27(e). In Count I, he also alleges he was victim to a hostile work environment and that he was constructively discharged from his position with the IRS. In Count II of his complaint, Mr. Boandl alleges the Treasury Department violated the Age Discrimination in Employment Act when it used a "flawed evaluation process for promotion" that included a ranking on the basis of potential. Compl. ¶ 52. He claims the evaluation and ranking process used in the selection process for the promotions for which Mr. Boandl applied ignored Mr. Boandl's "greater credentials and professional skills." Id. at ¶ 53. He makes the same retaliation, hostile work environment, and constructive discharge claims in this count. In Count III of his complaint, Mr. Boandl alleges the Treasury Department violated Title VII. In support of this claim, Mr. Boandl again cites his rejections for promotion, arguing that females with less experience were chosen. Id. at ¶ 59. He makes the same retaliation, hostile work environment, and constructive discharge complaints in this count.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" when a reasonable jury could return a verdict for the non-moving party based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" when it could affect the outcome of the case under the governing law. Id.
A party seeking summary judgment initially bears responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's burden can be met simply by demonstrating "to the district court
Celotex sets forth the basic presumption that summary judgment is only appropriate "after adequate time for discovery." 477 U.S. at 322, 106 S.Ct. 2548. Indeed, on summary judgment, the nonmoving party is relieved of its burden to set forth facts showing there is a genuine issue for trial when it "shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition[.]" FED. R. CIV. P. 56(f);
Mr. Boandl argues the defendant's motion is premature, claiming essentially that the administrative record created as a result of Mr. Boandl's numerous EEO
Mr. Boandl's claim is unsupported by a Rule 56(f) affidavit specifying what particular information he seeks through additional discovery, how that information would preclude summary judgment at this stage, and why that information was not discovered during the administrative process. Instead, Mr. Boandl has provided all the information he claims was ignored at the administrative level, including citations to and copies of the laws he believes are relevant and a sworn affidavit from Mr. Bucci. Because Mr. Boandl has cured the very defects he identified in the administrative record, and has failed to pinpoint relevant discoverable information pursuant to Rule 56(f), I believe the Treasury's motion is not premature and is instead ripe for consideration.
It is well-settled law that federal employees are entitled to a trial de novo of their employment discrimination claims in federal court. Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976) (finding that Section 706 of Title VII of the Civil Rights Act of 1964 (codified at 42 U.S.C.A. § 2000e-5(f)) authorizes both private and federal employees to sue on their own behalf after they have exhausted their administrative remedies with the EEOC); see also Morris v. Rumsfeld, 420 F.3d 287, 290 (3d Cir.2005) (applying the standard in Chandler to claims of disability-based employment discrimination and stating that "[a] federal employee unhappy with the administrative decision may bring his or her claims to a district court, under Section 505(a) of the Rehabilitation Act, 29 U.S.C. § 794a(a), and receive the same de novo consideration that a private sector employee enjoys in a Title VII action, under 42 U.S.C. § 2000e-16(c)."). The Chandler Court found that the District Court erred when it ruled that "a trial de novo is not required... in all cases and that review of the administrative record is sufficient if an absence of discrimination is affirmatively established by the clear weight of the evidence in the record[.]" 425 U.S. at 843, 96 S.Ct. 1949 (internal quotations omitted). Rather, it held that trial de novo was the method specifically identified by Congress for consideration of federal employee employment discrimination claims. Id. at 863, 96 S.Ct. 1949.
A District Court faced with a well-developed administrative record, however, is not required to disregard it completely. Rather, the District Court's function in deciding a summary judgment motion "is to determine whether any issues of fact
The defendant cites little of the administrative record available in this case. Instead of relying on the evidence presented to the EEOC
I will assume the defendant's contention that Mr. Boandl has access to and will cite to relevant portions of the administrative record is correct, based on the fact that Mr. Boandl did rely on portions of the administrative record, including the deposition of Diane Heasley, in response to the motion for summary judgment. Moreover, as noted above, the Mr. Boandl has provided the information he claimed the administrative agencies failed to consider, including the Rehabilitation Act, EEOC management directives, and the affidavits of Mr. Boandl's co-workers.
Where necessary, I will refer to and rely on the statements of fact contained in the written administrative decisions. I will not, however, rely on agency conclusions of law.
The first count of Mr. Boandl's complaint asserts numerous violations under the Rehabilitation Act. "The Rehabilitation Act expressly makes the standards set forth in the 1990 Americans with Disabilities Act ... applicable to federal employers[.]" Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir.2007). Courts analyzing claims under the Rehabilitation Act have traditionally looked to the requirements of two distinct sections therein. Section 504 provides that a "qualified individual with a disability" may not be "excluded from the participation in, be denied the benefits of, or be subjected to discrimination under"
Section 501 of the Act creates even more stringent standards for the treatment of disabled employees, but applies only to federal agencies. See 29 U.S.C. § 791(b). Specifically, it requires that federal agencies utilize "affirmative action program plan[s] for the hiring, placement, and advancement of individuals with disabilities." Id. Such plans "shall include a description of the extent to which and methods whereby the special needs of employees who are individuals with disabilities are being met." Id.; see also Taylor v. Garrett, 820 F.Supp. 933, 936 (E.D.Pa.1993) ("It is understood that Section 501, in addition to requiring nondiscrimination in federal employment, `creates judicially enforceable rights to affirmative action in federal employment placement and promotion.'" (citing Davis v. United States Postal Serv., 675 F.Supp. 225, 231 (M.D.Pa.1987))).
The EEOC management directive pertaining to the requirements of the Rehabilitation Act provides that:
29 C.F.R. § 1614.203.
Defendant seeks summary judgment in its favor on Mr. Boandl's failure to accommodate claim. In this count, Mr. Boandl alleges that Ms. Heasley's refusal to issue him a cell phone as an accommodation for his disability violated the Rehabilitation Act.
The standards set forth in the Americans with Disabilities Act are to be used in evaluating accommodation claims under the Rehabilitation Act. See 29 U.S.C. § 794(d). Under the ADA, "an employer discriminates against a qualified individual with a disability when the employer does not make reasonable accommodations to the known physical or mental limitations of the individual unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer." Taylor v. Phoenixville School Dist., 184 F.3d 296, 306 (3d Cir. 1999) (citing 42 U.S.C. § 12112(b)(5)(A)). When making an accommodation claim, "[a]n employee can succeed under the Rehabilitation Act only if the employee can demonstrate that a specific, reasonable accommodation would have allowed [him] to perform the essential functions of [his] job." Donahue v. Consol. Rail Corp., 224 F.3d 226, 232 (3d Cir.2000) (internal
The Third Circuit has articulated the standard to be applied to reasonable accommodation claims under the Rehabilitation Act:
Donahue, 224 F.3d at 229 (citing Shiring, 90 F.3d at 831). Reasonable accommodations include "measures such as `job restructuring, part-time or modified work schedules ... acquisition or modification of equipment or devices ... and other similar accommodations for individuals with disabilities.'" Freeman v. Chertoff, 604 F.Supp.2d 726, 734 (D.N.J.2009) (citing 42 U.S.C. § 12111(9)(B)). It is also possible to state a claim for failure to accommodate based on an employer's failure to engage in the interactive process. "An employee can demonstrate that an employer breached its duty to provide reasonable accommodations because it failed to engage in good faith in the interactive process by showing that: (1) the employer knew about the employee's disability; (2) the employee requested accommodations or assistance for his or her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer's lack of good faith." Colwell v. Rite Aid Corp., 602 F.3d 495, 504 (3d Cir.2010) (citing Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir.2004)).
The defendant does not dispute that Mr. Boandl was a qualified individual with a disability and that he could perform the essential functions of his position with or without an accommodation. Rather, it seeks dismissal on the ground that there was no essential job function Mr. Boandl was unable to perform without the aid of a cell phone, relying on the EEOC's conclusion of the same. Def.'s Mem., 40; Def.'s SMF ¶ 38. It also relies on the EEOC decision for its argument that, during the relevant period, IRS did not issue cell phones to any employees holding Mr. Boandl's position. Def.'s SMF ¶ 39. However, ALJ Rodwell's findings of fact on this charge are sparse—she explains only that Mr. Boandl requested a cellular telephone as a reasonable accommodation and that Ms. Heasley denied his request. See EEOC Decision, Gov. Ex. 1. It is only in the analysis portion of the decision that ALJ Rodwell specifically mentions Ms.
Mr. Boandl responds that the government is not entitled to summary judgment on this claim because the evidence indicates that it failed to engage in the interactive process. Pl.'s Resp., 37. Mr. Boandl points to the report prepared by Reasonable Accommodation Specialist Michael Bailey in connection with Mr. Boandl's request. The Report indicates that:
Reasonable Accommodation Report, Pl.'s Ex. 41. Mr. Boandl claims this report is evidence that Ms. Heasley denied his request without first determining whether a cell phone was a reasonable and manageable accommodation and therefore failed to engage in the interactive process.
The defendant does not dispute that Mr. Boandl put it on adequate notice that he was requesting an accommodation for his disability, and I believe Mr. Boandl has provided evidence that would allow a factfinder to conclude that the defendant failed to engage in the interactive process because Ms. Heasley denied his request summarily. However, "[t]he interactive process does not dictate that any particular concession must be made by the employer; nor does the process remove the employee's burden of showing that a particular accommodation rejected by the employer would have made the employee qualified to perform the job's essential functions." Taylor, 184 F.3d at 317. In other words, even if the defendant failed to engage in the interactive process, Mr. Boandl still must ultimately show that a cell phone was required for him to perform the essential functions of his job as a revenue agent. Mr. Boandl claims that the reason identified by Ms. Heasley for his request—that he be able to immediately return pages from the office while in the field—was not the sole reason for his cell phone request. Rather, he claims that he had investigative duties outside the office requiring use of a cell phone, including locating tax non-filers and visiting witnesses. Pl.'s Resp. To Def.'s SMF, ¶ 38. He claims that his disability made finding and using pay telephones to perform these duties a hardship. Id.
The defendant does not present evidence that locating non-filers and witnesses was not an essential function of Mr. Boandl's position. It relies largely on the EEOC decision in support of its argument, and in that decision, the ALJ cited testimony from Ms. Heasley that Mr. Boandl did not need to return pages immediately and that cell phones were not issued to other Revenue Agents. EEOC Decision, 8. I believe summary judgment in favor of the defendant is not merited on this claim. Mr. Boandl has presented evidence sufficient to create an issue of fact whether a cell phone was a reasonable accommodation. Although Ms. Heasley and the defendant frame Mr. Boandl's request as relating only to his ability to return pages from the office while he was in the field, Mr. Boandl has identified other tasks— including locating non-filers and witnesses
Because Mr. Boandl has satisfied his prima facie burden, the government must show that his requested accommodation is unreasonable or would cause an undue hardship. Ms. Heasley's testimony, as described by the EEOC ALJ, does not establish "that the accommodations requested by [Mr. Boandl] are unreasonable or would cause an undue hardship." See Donahue, 224 F.3d at 229. Therefore, I will deny the government's motion for summary judgment on this claim.
Just as the Rehabilitation Act borrows the ADA's standards for accommodation claims, it borrows as well the ADA framework for retaliation claims. See 29 U.S.C. § 794(d); 42 U.S.C. § 12203; Venter v. Potter, 694 F.Supp.2d 412, 427 (W.D.Pa.2010). Therefore, the familiar McDonnell Douglas framework utilized in ADA cases is also applicable in this context.
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-501 (3d Cir.1997) (internal citations and quotations omitted); see also Ozlek v. Potter, 259 Fed.Appx. 417, 421-422 (3d Cir.2007) (nonprecedential opinion).
As to the first element of a retaliation claim, the defendant does not dispute that filing an EEO complaint and making a request for a reasonable accommodation are protected employee activities. See Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 188 (3d Cir.2003). The issue here is whether Mr. Boandl has met the second and third elements required to state a prima facie case.
It is well-settled that materially adverse employment actions are not necessarily "workplace-related or employment-related retaliatory acts and harm." Moore v. City of Phila., 461 F.3d 331, 341 (3d Cir.2006) (quoting Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 66, 126 S.Ct. 2405, 2412-2413, 165 L.Ed.2d 345 (2006)). Rather, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which ... means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington Northern, 548 U.S. at 68, 126 S.Ct. at 2415 (internal citations and quotations omitted).
The third prima facie element of a retaliation claim is the establishment of a causal connection. In order to establish a causal connection between engagement in protected activity and an adverse employment action, a plaintiff must demonstrate either (1) a temporal proximity between the two events that is "unusually suggestive" of retaliation, or (2) timing plus other evidence, such as evidence that the employer engaged in a "pattern of antagonism" with the plaintiff. Luckiewicz v. Potter, 670 F.Supp.2d 400, 411 (E.D.Pa. 2009) (citing Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 760 (3d Cir.2004), and Robinson v. Se. Pa. Transp. Auth., 982 F.2d 892, 895 (3d Cir.1993) (finding that even absent temporal proximity, an employee showed a causal connection where he was subjected to a barrage of written and verbal warnings, inaccurate point totalings, and disciplinary action)).
Mr. Boandl sets forth a number of acts he claims constituted retaliation for his filing of EEOC complaints in August of 2003 and February of 2004. He claims that after he was denied the promotions and the accommodation request, he was "subjected to retaliation and harassment, denied proper evaluations, such as recognition for commendations and special achievements, subjected to pretextual evaluations and discipline, [and] subjected to retaliatory investigations[.]" Boandl Compl. ¶ 28. He claims has was further retaliated against when he was given a negative evaluation in response to the OPR investigation into his application for enrolled agent status. Id. ¶ 29. Instead of setting forth each instance of retaliation individually, Mr. Boandl refers in his complaint to patterns of retaliation. See id. at ¶ 32 (complaining of subjection to "an unrelenting pattern of retaliation, harassment, and an ever increasing hostile work environment"); ¶ 37 ("Ms. Heasley's ongoing retaliatory harassment .. was followed by a pattern of intimidation designed to justify an illegal, intolerable, and hostile work environment[.]").
The government separates Mr. Boandl's Rehabilitation Act count into three distinct retaliation claims: (1) retaliation in the form of the TIGTA investigation and referral; (2) retaliation in the form of the negative performance reviews and the issuance of the opportunity to improve letter; and (3) retaliation in the form of the comments made to OPR in connection with Mr. Boandl's application for enrolled agent status. See Def.'s Mem., 42-52. I believe that this is a valid construction of Mr. Boandl's complaint, and I will discuss each claim in turn.
The defendant claims the referral of Mr. Boandl's issuance of a complimentary taxpayer letter to TIGTA did not constitute an adverse employment action. It argues that referral of an incident to an independent investigative body would not dissuade a reasonable worker from making a charge of discrimination. It support of its argument, the defendant cites Simmington v. Gates, where the reviewing court found that plaintiff's retaliation claim was not supported by the evidence where the alleged
Porter is more relevant to Mr. Boandl's negative performance evaluation claim than to his claim that referral to TIGTA was an adverse employment action. The consequences of the negative performance appraisal to the plaintiff in Porter were simply not present for Mr. Boandl as a result of the TIGTA referral. TIGTA is an independent agency whose audit and investigative duties are designed to detect and deter fraud and abuse in IRS programs and activities, and to protect IRS employees against external attempts at corruption. Def.'s SMF ¶ 47. Mr. Boandl has neither alleged nor shown that referral to this independent agency exposed him to removal from his position or reduction in grade. Mr. Boandl does attempt to dispute Treasury's characterization of TIGTA's role and the nature of the investigation initiated by Ms. Heasley and Mr. Briggs.
Instead, Mr. Boandl appears to claim that the TIGTA investigation was materially adverse because it encompassed not only his issuance of a complimentary letter to a taxpayer, but also the IRS's receipt of letters from taxpayers complimenting Mr. Boandl's work. Pl.'s Resp. To Def.'s SMF, ¶ 46. The TIGTA report confirms this allegation, revealing that Ms. Heasley told investigators Mr. Boandl violated IRS policy by issuing summonses to taxpayers without approval from management and that he conducted an audit in violation of established guidelines; and that Mr. Briggs expressed suspicion to investigators that Mr. Boandl asked a taxpayer to send the IRS a complimentary letter about him. TIGTA Report, Pl.'s Ex. 4. However, the fact that Mr. Boandl's supervisors spoke to investigators about other aspects of Mr. Boandl's work in connection with the investigation does not make the initiation of that investigation a materially adverse employment action.
The undisputed facts are that Mr. Boandl sent a complimentary letter to a taxpayer lauding the services of a tax preparer. IRS guidelines prohibit an IRS agent from recommending the services of a tax preparer. Mr. Boandl's supervisors sought the assistance of an external, independent body to determine whether Mr. Boandl's issuance of the letter violated IRS guidelines. Mr. Boandl has presented no evidence that the referral, in itself, could have or did alter the terms of his employment, and he has presented no evidence that this referral would have dissuaded an objective worker from pursuing a claim of discrimination; indeed, there were no ramifications of the investigation beyond the issuance of a report of investigation.
Therefore, I will not address whether Mr. Boandl has met the third element of a prima facie case.
The defendant argues that the negative performance evaluations Mr. Boandl received are not legally sufficient to constitute adverse employment action, but focuses its brief on the argument that "he cannot designate record facts creating a genuinely triable issue that Ms. Heasley's well-grounded business reasons for the at-issue performance evaluations and opportunity letter were pretexts for retaliation." Def.'s Mem., 50.
Along with the negative performance evaluation, Ms. Heasley issued Mr. Boandl an Opportunity to Improve letter affording him 120 days to improve his performance, informed him that his work would be periodically reviewed, and told him that if he did not improve his performance, he would face termination. Under the Burlington Northern standard, I believe an objective person would be dissuaded from pursuing a claim of discrimination following this treatment. Compare Counts v. Shinseki, No. 08-85, 2010 WL 3810662 at *10 (W.D.Pa. Sep. 23, 2010) (finding that a material fact existed whether work reassignments and retrieval of plaintiff's government issued laptop constituted adverse employment actions) with Clayton v. Pa. Dept. of Public Welfare ex. rel. Richman, No. 05-0768, 2007 WL 575677 at *10 (M.D.Pa. Feb. 20, 2007) (finding that "de minimis administrative decisions" such as moving plaintiff's mailbox, refusing to give him an office in the location he desired, and requiring him to follow a hospital-wide office hours policy did not constitute materially adverse actions) aff'd 304 Fed.Appx. 104 (3d Cir.2008).
Because Mr. Boandl has stated the first and second elements of a prima facie case, I must consider whether he has shown a causal connection between his activity and the retaliatory acts. I believe that he has. A causal connection is established with evidence of temporal proximity between the protected activity and a retaliatory act that is unusually suggestive of retaliation, or mixed evidence of the timing and other elements, such as evidence that the employer engaged in a pattern of antagonism with the plaintiff. The time that elapsed between Mr. Boandl's filing of his second EEO complaint and the issuance of the negative performance evaluation and improvement plan was about a month. That fact, combined with other evidence, including the TIGTA referral and antagonistic relations between Mr. Boandl and Ms. Heasley, could allow a factfinder to find a causal connection. See Krouse, 126 F.3d at 503-04 (holding that "when temporal proximity between protected activity and allegedly retaliatory conduct is missing, courts may look to the intervening period for other evidence of retaliatory animus.").
Because I believe Mr. Boandl has made a prima facie retaliation claim based on the issuance of a negative performance evaluation and improvement plan, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for Mr. Boandl's evaluation and performance plan. The defendant presents the written evaluation prepared by Ms. Heasley, arguing, in essence, that the document speaks for itself. Indeed, the letter includes six pages citing in great detail the problems with Mr. Boandl's work, including his issuing taxpayer summonses without management approval; failing to advise a taxpayer of
Therefore, the burden shifts back to Mr. Boandl to present evidence that would be sufficient to convince a factfinder that the reasons offered for the negative evaluation were false, and that retaliation was the real reason for the evaluation and performance plan. In order to meet this burden, he must either (i) "present sufficient evidence to meaningfully throw into question, i.e., to cast substantial doubt upon," the defendant's proffered reason for its adverse employment action; or (ii) "come forward with sufficient evidence from which a factfinder could reasonably conclude that an illegitimate factor more likely than not was a motivating or determinative cause of the adverse employment decision[.]" Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994). Although the plaintiff need not present evidence beyond that supporting his prima facie case to survive summary judgment, he must point to "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons [such] that a reasonable factfinder could rationally find them `unworthy of credence' and hence infer that the proffered non-discriminatory reason `did not actually motivate' the employer's action." Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644 (3d Cir. 1998) (citations omitted).
Mr. Boandl fails to address or discredit each of the elements of the negative performance evaluation he received. Rather, in support of his claim, he presents generalized evidence that: (1) the performance evaluation he received was a significant deviation from evaluations issued prior to Ms. Heasley's supervision of Mr. Boandl; (2) Mr. Boandl had a history of positive work evaluations and commendations from the IRS; (3) Ms. Heasley treated Mr. Boandl differently than others by singling him out for discipline due to his issuance of a complimentary taxpayer letter; (4) Ms. Heasley singled Mr. Boandl out for other demeaning treatment. The haphazard presentation of Mr. Boandl's brief makes it difficult to label his argument with any degree of certainty, but, because he fails to offer any evidence that Ms. Heasley's evaluation of his performance was unfounded, I will assume that he seeks to avoid summary judgment on the second ground articulated in Fuentes; that is, he claims Ms. Heasley relied on illegitimate factors in issuing the evaluation.
I believe Mr. Boandl has met his burden. In support of his claim, Mr. Boandl provided a copy of a letter of appreciation sent to him from Jerome Lisuzzo, the Special Agent in charge at the Criminal Investigation Section of the Philadelphia Field Office, on January 5, 2004, after Ms. Heasley's referral of Mr. Boandl's claim to TIGTA and before her issuance of the opportunity to improve letter. The letter of appreciation recognizes Mr. Boandl for providing information to the Criminal Investigation division which led to the filing of felony charges and successful prosecution of a tax non-filer. Id., Ex. 14 to Boandl Ex. 5. Mr. Boandl also includes evidence of commendations and positive recognition for his work dating back to the 1980's, arguing that because "analysis of the timing and sequence of events" is essential, Mr. Boandl's performance history must be taken into consideration in determining whether the defendant's performance
With regard to the choice to refer Mr. Boandl to TIGTA for investigation, Frank Bucci, an Internal Revenue Agent, attested that "there would be nothing unusual for an Agent to compliment a taxpayer or taxpayer representative where the audit revealed excellent tax books and records." Bucci Affidavit, Boandl Ex. 8. Adam Florkowski, a former co-worker of Mr. Boandl's who was also supervised by Ms. Heasley, claims he recalled times he complimented a taxpayer or a taxpayer's representative when records were well-prepared. Florkowski Affidavit, Boandl Ex. 10. Although I do not find the TIGTA referral constituted an adverse employment action, evidence that Mr. Boandl was treated differently than his coworkers for sending a complimentary letter could be construed by a factfinder as evidence of retaliatory animus. Mr. Boandl has also offered further evidence concerning Ms. Heasley's treatment of Mr. Boandl. In an affidavit, Mr. Florkowski testified that he observed Ms. Heasley scolding Mr. Boandl about an error on a payroll time report publicly and using an abusive tone. See Florkowski Affidavit. Mr. Boandl stated in his affidavit that, in late September, 2003, Ms. Heasley also accused Mr. Boandl of choosing a particular stamp in order to mock the addressee of a letter he had sent and that she made other accusations against him. Boandl Affidavit at 6-7.
I believe that Mr. Boandl's proffered evidence—that his past work evaluations were positive; that his work was exceeding the expectations of others only weeks prior to Ms. Heasley's issuance of the negative evaluation; and that Ms. Heasley singled Mr. Boandl out for negative treatment both publicly and in private around the time the negative performance evaluation was issued—creates an issue of fact whether Ms. Heasley's stated reasons for her evaluations of Mr. Boandl were pretextual. At least one other court in this District has accepted such reasoning. See Long v. Thomson Industries, Inc., No. 99-1693, 2000 WL 1586078 at *9 (E.D.Pa. Oct. 24, 2000) (finding that the timing of negative evaluations after plaintiff filed a complaint of discrimination, the transfer of plaintiff to a different department, and evidence of continuing altercations with management "provide sufficient circumstantial evidence for a reasonable jury to conclude that [defendant's justification for negative performance evaluations] is pretextual.").
Therefore, I will deny the defendant's motion for summary judgment on Mr. Boandl's retaliation claim based on issuance of the negative performance evaluation.
The defendant argues that Mr. Boandl's claim of retaliation in connection with the reference provided by Charles Brantley to the OPR does not constitute an adverse employment action. I agree.
In order to make a claim for post-employment retaliation, a plaintiff must show that he engaged in protected activity, that his former employer had influence over a subsequent employment-related decision, and that his former employer made a retaliatory use of that influence to the detriment of the plaintiff's employment opportunities." See Charlton v. Paramus Bd. Of Educ., 25 F.3d 194, 200-201 (3d Cir. 1994) ("[W]e ... hold that an ex-employee may file a retaliation action against a previous employer for retaliatory conduct occurring after the end of the employment relationship when the retaliatory act is in reprisal for a protected act
It is undisputed that Mr. Brantley, as an IRS director, provided information from Mr. Boandl's file to OPR at its request. Def.'s SUF ¶ 77. Even if that information was untrue or misleading, as Mr. Boandl claims it was, there was no adverse effect on Mr. Boandl. He was given the opportunity to provide additional information to OPR beyond that provided by Mr. Brantley, and after he did, he was granted enrolled agent status. Mr. Boandl has simply failed to allege a post-employment adverse action that caused harm to his employment opportunities.
In the second count of his complaint, Mr. Boandl sets forth a claim under the ADEA. He argues that "in the evaluation and ranking process for [his] application[s] for promotion ... his greater credentials and professional skills, under objective standards were ignored" and that he was "subjected to unequal evaluation standards as compared with younger employees lacking his broad range of experience." Boandl Compl. ¶ 53.
The ADEA protects federal employees over the age of 40 from age-based employment discrimination. Claims under the ADEA are analyzed under the McDonnell Douglas burden shifting framework. Barber v. CSX Distribution Serv., 68 F.3d 694, 698 (3d Cir.1995). A failure to promote claim under the ADEA is analogous to a failure to hire claim. Id. In order to state a prima facie case of discrimination, a plaintiff must show (1) that he belongs to the protected class; (2) that he applied for and was qualified for the job; (3) that he was rejected despite being qualified; and (4) under circumstances that raise an inference of discrimination, the employer continued to seek out individuals with qualifications similar to plaintiff's or treated more favorably those not in the protected class. Id. (citing Fowle v. C & C Cola, 868 F.2d 59, 61 (3d Cir.1989)); see also Maxwell v. Springer, 274 Fed.Appx. 186, 188 (3d Cir.2008). Once the plaintiff makes a prima facie case, the burden shifting framework comes into play. The defendant must articulate a legitimate, non-discriminatory reason for rejecting the plaintiff for the promotion, and if the defendant does so, the burden shifts back to the plaintiff to show, by a preponderance of the evidence, that the employer's explanation is pretextual. See Fuentes, 32 F.3d at 763; see also Sarullo v. United States Postal Serv., 352 F.3d 789, 797 (3d Cir.2003).
The defendant does not appear to dispute that Mr. Boandl has made a prima facie case of age discrimination. See Def.'s Mem., 53. Mr. Boandl was 54 years old at the time he applied for vacant Revenue Agent positions in March and May of 2003.
Therefore, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for rejecting Mr. Boandl for the positions. The defendant's burden here is "relatively light." Fuentes, 32 F.3d at 763. The defendant claims Mr. Boandl was not chosen for either position because the ranking scores he received were below the scores the respective ranking panels had designated as "best qualified." One part of his ranking score was based on a performance evaluation he received prior to applying for the job. The other part of his overall score was based on a subjective score for potential. The defendant has met its burden. Uniform reliance on past performance evaluations to make hiring or promotion decisions is legitimate and nondiscriminatory. See Bray v. Marriott Hotels, 110 F.3d 986, 993-97 (3d Cir.1997) (finding that use of evaluation scores was a legitimate reason for making promotion decisions, and that only evidence of discrepancies in the evaluation of the scores raised an inference of pretext); D'Amico v. Pulte Homes, Inc., No. 08-1099, 2009 WL 792344 at *3 (E.D.Pa. Mar. 23, 2009) (finding that reliance on poor performance scores in decision not to promote was legitimate and nondiscriminatory).
Therefore, the burden shifts back to Mr. Boandl to show that the government's stated reason for its rejection of his applications for promotion was pretextual and that the real reason he was denied the promotions was discrimination. Mr. Boandl relies on blanket assertions in arguing that the defendant's stated reasons are pretextual. For example, he states that the two females chosen for the positions were "younger [and] far less experienced[.]" Pl.'s Resp., 28. He fails to offer, in his brief or in his affidavit, an explanation for his argument that the individuals chosen for the position were far less experienced. He has knowledge about the other selectees' records, but makes no specific arguments concerning them, nor offers them as evidence in support of his claim. See Boandl Affidavit at 3-4 ("I recognized that under objective standards, I was far more qualified than the selectees.... I had more education, more diverse experience, and more years of experience.... In real contrast, the two younger selectees without disabilities lacked my years of diverse experience and special accomplishments. Their records do not show comparable commendations from the Commissioner of the IRS, or numerous complimentary letters from both taxpayers and tax preparers, or commendations from other segments of the IRS[.]"); Boandl SMF ¶ 28 ("Most of the experience of the two younger selectees was in the area of general enforcement[.] In sharp contrast, Boandl worked not only in general enforcement but, in addition, he had experience in special enforcement related to taxpayers found to be engaging in illegal activities, such as embezzlement, drug trafficking, illegal gambling, and other illegal activities."). Mr. Boandl does not explain how the absence of letters of commendation in the records of the selectees makes them less experienced than he, and nowhere has defendant argued that letters of commendation, or experience in criminal tax enforcement, were considered in making the promotion decisions. A plaintiff's reliance on factors he, but not the employer, deems important in making hiring and promotional decisions is not valid to show pretext. See Simpson, 142 F.3d at 648.
Mr. Boandl also claims the promotion selection process violated Title VII of the Civil Rights Act, which outlaws discrimination on the basis of sex. Although men are not traditionally the protected class under Title VII, they may still assert reverse discrimination claims. Such claims are governed by the McDonnell Douglas burden shifting framework. Iadimarco v. Runyon, 190 F.3d 151, 157 (3d Cir.1999). In order to make a prima facie case of reverse discrimination in violation of Title VII, a plaintiff must "present sufficient evidence to allow a fact finder to conclude that [the defendant] is treating some people less favorably than others based upon a trait that is protected under Title VII." Id. at 161.
The defendant does not appear to dispute that Mr. Boandl has stated a prima facie case of reverse discrimination in connection with his rejections for promotion. He was a male who applied and was qualified for the promotions, he was rejected, and women were chosen for both positions. The defendant again cites its ranking panel process in setting forth a legitimate, nondiscriminatory reason for its decision to offer the promotions to other applicants. Because I have already found that the explanation offered by defendant for its selection is legitimate, I will not discuss this element again. Just as Mr. Boandl failed to offer any evidence or identify any discoverable evidence supporting his claim that the defendant discriminated on the basis of age in making the promotion decisions, he has failed to do so with respect to gender. Moreover, the evidence strongly supports the defendant's contention that there was no discrimination in its decision. Of the applicants who were ranked "best qualified" for the March position, four were men and one was a woman; of the May applicants, three were men and one was a woman. Again, this evidence belies any inference of discrimination, and Mr. Boandl points to no evidence creating an issue of fact whether the defendant had discriminatory motives when it made its promotion decisions.
Mr. Boandl appears to assert hostile work environment claims in each count of his complaint. Courts in this Circuit have recognized a plaintiff's right to assert a hostile work environment claim under the Rehabilitation Act, see Miller v. Cohen, 52 F.Supp.2d 389, 400 (M.D.Pa.1998) aff'd, 185 F.3d 862 (3rd Cir.1999); Title VII, see Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir.1996); and the ADEA, see Fries v. Metro. Mgmt. Corp., 293 F.Supp.2d 498, 504 (E.D.Pa.2003) aff'd Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506 (3d Cir.2004).
"Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). In order to state a claim for hostile work environment, a plaintiff must prove five elements: (1) the plaintiff suffered intentional discrimination because of his disability, gender, or age; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected plaintiff; (4) the discrimination would have detrimentally affected a reasonable person of the same protected class in that position; and (5) the existence of respondeat superior liability. Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir.2001). "[H]arassment is pervasive when `incidents of harassment occur either in concert or with regularity.'" Andrews, 895 F.2d at 1484. To determine whether discrimination is sufficiently hostile to create employer liability, a reviewing court must look at the totality of the circumstances, including factors such as "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; whether it unreasonably interferes with an employee's work performance." Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir.2001) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). "[O]ffhanded comments and isolated incidents (unless extremely serious) are not sufficient to sustain a hostile work environment claim. Rather, the conduct must be extreme to amount to a change in the terms and conditions of employment." Mufti v. Aarsand & Co., Inc., 667 F.Supp.2d 535, 545 (W.D.Pa.2009) (citing Abramson v. William Paterson College of New Jersey, 260 F.3d 265 (3d Cir.2001)). Even conduct that is unquestionably offensive and rude will not rise to the level required to make out a hostile work environment claim unless it is sufficiently severe. See Saidu-Kamara v. Parkway Corp., 155 F.Supp.2d 436, 439-440 (E.D.Pa.2001) (finding that defendant's repeated making of suggestive sexual comments, patting plaintiff on the buttocks and breast, and making harassing comments about plaintiff's family background and poverty were not sufficient to state a claim for hostile work environment). Rather, the conduct must be objectively severe and serious.
Mr. Boandl's hostile work environment claim must be dismissed. First, he has failed to set forth any evidence that would allow a reasonable trier of fact to conclude that he was harassed because of his membership in a protected class. In other words, Mr. Boandl has not alleged that any of the harassment he allegedly suffered was based on his disability, age, or gender. Instead, almost every example Mr. Boandl provides supporting his hostile work environment claim concerns an interaction where Ms. Heasley criticized him based solely on his work performance or reprimanded him for an action he had taken in his capacity as a Revenue Agent.
Moreover, Mr. Boandl has failed to allege or provide evidence of conduct that, when viewed objectively, would allow a fact-finder to conclude that his working conditions were altered. Mr. Boandl describes conduct that was rude, undoubtedly insulted him, and caused him distress. However, even accepting his accusations as true, he has failed to describe the kind of conduct courts in this Circuit have accepted as stating a claim for hostile work environment. He claims Ms. Heasley criticized his work and failed to appropriately recognize him for his achievements. He does not allege physical contact from Ms. Heasley, he does not describe specific discriminatory statements made by her, and he does not allege conduct that took place with any great frequency. Rather, he describes isolated incidents where Ms. Heasley used a demeaning tone with him or questioned him concerning work-related mistakes or misconduct. He alleges approximately four incidents that took place over the course of a year and asserts multiple complaints concerning Ms. Heasley's failure to compliment and voice concern for him in the manner he wished. There is no requirement under any relevant law that a supervisor act with a particular degree of civility.
Mr. Boandl has failed to state a hostile work environment claim under the Rehabilitation Act, the ADEA, or Title VII. I will dismiss all three hostile work environment claims.
Courts reviewing constructive discharge claims must employ an objective standard, and ask whether "the conduct complained of would have the foreseeable result that working conditions would be so unpleasant or difficult that a reasonable person in the employee's shoes would resign." Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir.1993). The leading constructive discharge decision from the Supreme Court, Penn. State Police v. Suders, describes in detail the showing a plaintiff must make when alleging a compound hostile work environment constructive discharge claim. 542 U.S. at 130, 124 S.Ct. 2342. In this type of claim, the plaintiff must make an additional showing beyond that required for a simple hostile work environment claim. Id. ("A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign"); see also Stremple v. Nicholson, 289 Fed.Appx. 571, 573 (3d Cir. 2008) (non-precedential opinion).
However, a compound claim is only one type of constructive discharge claim. A plaintiff can prove constructive discharge independent of a hostile work environment based on the actions of a supervisor. See Stremple, 289 Fed.Appx. at 573-74 (affirming bench trial decision in favor of a surgeon in which the court rejected the surgeon's hostile work environment claim but found in his favor on a constructive discharge claim where the surgeon showed "a slow degradation of his responsibilities, status, and authority" and was "forced out of his position."). The factors relevant to whether a plaintiff can make this kind of supervisor-based constructive discharge claim, known as the Clowes factors, are "whether the employer (1) threatened [the employee] with discharge or urged or suggested that she resign or retire; (2) demoted her, (3) reduced her pay or benefits, (4) involuntarily transferred her to a less desirable position, (5) altered her job responsibilities, or (6) gave unsatisfactory job evaluations." Colwell, 602 F.3d at 503.
It is unclear whether Mr. Boandl makes a compound or supervisor-based constructive discharge claim. See Boandl Compl. ¶¶ 28-29 (Boandl . . . was denied promotions and then denied reasonable accommodation, subjected to retaliation and harassment, denied proper evaluations . . . subjected to pretextual evaluations and discipline, subjected to retaliatory investigations,
Mr. Boandl has presented evidence, however, of actions taken by his supervisors which, though not supportive of a hostile work environment claim, so degraded his professional life that a trier of fact could conclude that he was constructively discharged. As described in great detail above in connection with Mr. Boandl's retaliation claim, Mr. Boandl was referred to TIGTA for investigation in February of 2004 for the issuance of a complimentary letter to a taxpayer. In March of 2004, he was given a negative job evaluation, placed on a performance improvement plan that included periodic reviews of his work, and informed that if he did not improve his performance within 120 days, he faced termination. He was also removed from the IRS' Flexiplace program. He describes his decision to retire as follows:
Boandl Affidavit, 14-15.
Mr. Boandl therefore has alleged facts that meet at least three of the six Clowes factors: he was threatened with discharge and was urged by Mr. Briggs to retire; his benefits were reduced at least in the sense that his participation in the Flexiplace program was taken away, and he was given unsatisfactory job evaluations. I believe there is no evidence these actions were taken because of his age or his gender; however, insofar as this pattern of retaliatory behavior was connected to Mr. Boandl's disability-related request for an accommodation and his EEOC charges, I will allow his constructive discharge claim to proceed under the Rehabilitation Act.
I will grant the defendant's motion for summary judgment as to the following claims: Mr. Boandl's Title VII claims for failure to promote, hostile work environment, and constructive discharge, his ADEA claims for failure to promote, hostile work environment, and constructive discharge, and his Rehabilitation Act retaliation claims based on the TIGTA referral and the negative enrolled agent application reference. That leaves Mr. Boandl with the following claims: a failure to promote claim under the Rehabilitation Act (which the defendant did not seek to dismiss); a failure to accommodate claim under the Rehabilitation Act; a retaliation claim under the Rehabilitation Act based on the defendant's issuance of a negative performance evaluation and performance improvement plan; and a constructive discharge claim under the Rehabilitation Act.
Other courts have accepted this "subjective response" argument. See Sykes v. Pennsylvania State Police, No. 05-1349, 2007 WL 141064 at *6 (W.D.Pa. Jan. 17, 2007) ("The court does not detail the specific instances of retaliation described by Sykes since it is clear that they are not actionable under the standard set out in Burlington. These actions, whether characterized as major or minor, did not deter Sykes's pursuit of new and expanded allegations of discrimination, either internally or administratively."), aff'd 311 Fed. Appx. 526 (3rd Cir. Apr. 04, 2008). While Mr. Boandl's continued and persistent pursuit of his EEO claims following the referral makes the "subjective response" argument an attractive one, I will not rely on it here because it appears to conflict with the Supreme Court's ruling in Burlington Northern and because other evidence makes clear that the TIGTA referral was not an adverse employment action.
