The opinion of the court was delivered by: LESLIE G. FOSCHIO
REPORT and RECOMMENDATION
This matter was referred to the undersigned by the Honorable Richard J. Arcara on May 19, 1993 for report and recommendation on any dispositive motions. The matter is presently before the court on Defendant's motion to dismiss, or alternatively, for summary judgment, filed April 25, 1994.
Plaintiff, Diane L. Bloomquist, filed, with the Equal Opportunity Employment Commission ("EEOC"), four separate, but related, complaints charging sex discrimination and/or reprisal discrimination for prior equal employment opportunity activity against Respondent, the Internal Revenue Service ("IRS").
The four complaints were the subject of a hearing held August 13 - 16, 1991, before EEOC Administrative Law Judge ("ALJ") Kenneth W. Chu, who made a proposed decision to the Treasury Department on December 31, 1991. The proposed decision also recommended adopting findings of no discrimination with respect to the January 29, 1990, the April 18, 1990, and the July 15, 1990 complaints, as well as the claims dealing with alleged job documentation, leave restriction, the threat to have Bloomquist followed and the instructions not to meet with EEO officials in the July 4, 1990 complaint. However, the ALJ recommended that a finding of discrimination be adopted as to Bloomquist's complaint that the IRS perceived her to be mentally handicapped, and the IRS' decision to remove her firearm on June 18, 1990.
The Treasury Department issued a final decision on March 2, 1992, finding that the evidence presented was insufficient to support Bloomquist's claims of discrimination and reprisal. Bloomquist appealed to the EEOC's Office of Federal Operations on March 21, 1992. No decision has been issued and one hundred and eighty days have passed since the appeal was filed.
In the meantime, Bloomquist filed, on February 28, 1991, an action in New York State Supreme Court against Donna P. Sullivan, her Group Manager at the Criminal Investigation Division of the IRS, for libel and infliction of emotional distress.
Bloomquist's complaint alleged that Sullivan published a defamatory memorandum in her IRS personnel file, as previously discussed in Bloomquist's EEOC complaint of July 4, 1990. The action was removed to this court on March 22, 1991. Motions to substitute the United States as the sole defendant and to dismiss the action were filed on March 29, 1991. Bloomquist filed a memorandum in opposition and cross-moved to remand the case to New York Supreme Court on May 13, 1991. After a hearing on October 18, 1991, the motions were submitted to the court for decision. On March 31, 1992, the Honorable William M. Skretny granted the motion to substitute the United States as the proper defendant, and also granted Defendant's motion to dismiss on grounds of sovereign immunity. See Decision and Order, 91-CV-182S, dated March 31, 1992. Judgment dismissing the action was entered on April 2, 1992.
Bloomquist, thereafter, filed this action on October 19, 1992, naming Nicholas F. Brady, the Secretary of the Treasury, as defendant alleging that she was discriminated against based on her gender in violation of Title VII, 42 U.S.C. § 2000e, et seq. Defendant's answer was filed on April 14, 1993.
On July 15, 1993 Plaintiff served on Defendant a Notice for Discovery and Inspection; an Amended Notice for Discovery and Inspection was served on Defendant on July 21, 1993. A stipulation was filed on August 8, 1993, granting the Defendant a thirty-day extension to produce the documents requested.
Defendant responded to Plaintiff's discovery requests on September 21, 1993. However, Defendant declined to provide the internal investigatory files of Anthony Gagliardi.
Bloomquist filed a motion to compel disclosure of discovery materials and for sanctions on January 6, 1994. By order dated March 10, 1994, Defendant was requested to submit Gagliardi's Personnel File to the court for in camera inspection; the file was submitted to the court on March 16, 1994 and an in camera review was thereafter conducted.
On March 21, 1994, Defendant filed a motion requesting a protective order to prevent discovery of Gagliardi's personnel file and alleging that the information requested is irrelevant, privileged, overly broad, unlikely to lead to admissible evidence, and unduly prejudicial. Oral argument was held April 20, 1994. In the accompanying Decision and Order, dated March 10, 1995, this court granted, in part, the Plaintiff's motion to compel, and denied Plaintiff's motion for sanctions and Defendant's request for a protective order.
Defendant filed, on April 25, 1994, a motion to dismiss or for summary judgment. Plaintiff subsequently filed, on July 18, 1994, a cross-motion to amend the complaint. Plaintiff's cross-motion was also denied in this court's decision and order dated March 10, 1995. Oral argument was held on Defendant's motion on October 31, 1994.
For the reasons stated below, Defendant's motion, treated as a motion for summary judgment, should be GRANTED.
Diane Bloomquist is employed as a Criminal Investigator (Special Agent) in the Criminal Investigation Division of the IRS, Buffalo District. She began her employment as a "co-op" student on May 22, 1978, and competitively progressed until she became a Special Agent in September, 1988. At the time in question, she was one of two female Special Agents, of a total of eleven agents in her unit.
In 1987, Bloomquist gave an affidavit to an EEO investigator concerning Gagliardi's treatment, but did not give specific details for fear of retaliation. However, Bloomquist also indicated that Gagliardi was no longer in a position to adversely affect her employment, as Ludwig was her group manager. Bloomquist believes that the 1987 EEO affidavit was the basis of the continued harassment once Gagliardi was made group manager in December 1989.
According to Bloomquist, Gagliardi conspired with Donna Sullivan, Assistant Division Chief of the Criminal Investigation Division of the IRS, to sabotage Bloomquist's career by removing her from the premium pay roster,
reassigning an important grand jury investigation to which she was assigned,
accusing her of telling other employees that he ...