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United States District Court, Southern District of New York

April 10, 2003


The opinion of the court was delivered by: Gerard E. Lynch, United States District Judge.


In this employment discrimination and retaliation action, plaintiff Osmond Brown, an African-American immigrant from Costa Rica, alleges that he has consistently been denied the opportunity to work on "higher-graded" cases as an Internal Revenue Agent ("RA") at the Internal Revenue Service ("IRS") since his transfer to its Large and Mid-Size Business Team ("the Team") in June 2000. Initially appearing pro se he has filed a standard-form employment discrimination complaint, an attached narrative statement of facts, and a copy of the required Equal Opportunity Employment Commission ("EEOC") decision rejecting his administrative complaint. On the form, Brown has indicated that he is stating claims for "[f]ailure to promote," "[r]etaliation," "[h]arassment," and "[h]ostile working [c]onditions," and that the alleged discrimination was based on his race, color, and national origin. The factual narrative alleges only that Brown's supervisor has refused to assign to Brown, and to one other RA in the Team, who is Haitian, "cases that [would] qualify [them] for career development> and advancement," while "the other agents in the group born American continued to work these cases." Since filing the complaint, Brown has obtained counsel. Counsel has not sought to amend the complaint, which, understandably in the case of a pro se plaintiff, is not well-crafted.

Defendant John Snow, Secretary of the Treasury,*fn1 moves to dismiss all or parts of the complaint on the grounds of failure to exhaust administrative remedies, failure to timely complain to the EEO counselor at the agency, collateral estoppel, and failure to allege an "adverse employment action."

Because Brown failed to assert his claims of failure to promote, harassment, and hostile working conditions before the EEOC prior to filing this suit, he has failed to exhaust his administrative remedies with respect to those claims and they must be dismissed. Brown's allegations of discrimination and retaliation in the form of inferior work assignments were asserted in his EEOC charge and, under the facts pleaded, may well constitute an "adverse employment action." Thus, defendant's motion to dismiss the discriminatory work assignment and retaliation claims will be denied. However, any of plaintiff's claims based upon conduct prior to September 1, 2000, will be dismissed as untimely.


Unless otherwise noted, the following facts are taken from plaintiff's complaint and its attached factual statement ("Compl. Ex. I"), and so must be taken as true for purposes of this motion. The facts cited from the EEOC Decision attached to the complaint appear to be undisputed by plaintiff unless otherwise noted.

Brown has been employed at the IRS since 1981. This suit arises from the seventh EEOC complaint Brown has filed against the IRS; one of the earlier complaints resulted in a District Court judgment in his favor for $20,000, based on the IRS's "failure to assign him acting manager responsibilities during 1992-1993." (EEOC Decision at 2.) The individuals found to have discriminated against Brown in that action included Paul Rinaldi, Brown's current territorial manager, who was "branch chief' in 1992-93, but who had no supervisory responsibility over Brown from 1995 to 2000. (Compl. Ex. I at 2.)*fn2

Brown was assigned to his current position in the Team, at a grade of GS-12, in June 2000. (Id. at 1.) Thomas Chillemi, who Brown alleges is Rinaldi's "neighbor[] and close[] friend[]," became his team manager. Id. at 2. Brown alleges that the discriminatory conduct of Chillemi alleged here was in retaliation for the earlier action. Id.

The IRS grades tax cases according to the complexity of the tax return and the amount of tax at issue. Higher-graded cases are generally assigned to RAs at higher GS levels. (EEOC Decision at 2.) Brown alleges that cases graded "219, 221 and above for C corporations and 290 for S corporations," which are normally assigned to RAs at the GS-13 level were, at some time after June 2000, made "available" to GS-12 agents "for career development, improvement and advancement." (Compl. Ex. [at I.) He alleges that, after his assignment to the Team "other agents in [it] were actually working these cases," but that his own repeated requests to Chillemi to be assigned such cases were denied, as were the requests of the only other immigrant in the Team, Yves Gelin. Id.

In late 2000, Brown and Gelin attempted to file a "class action" complaint with the EEOC, but that complaint was "sent back" because there were "not enough members in the class." Id. at 2. On or around March 7, 2001, Brown filed a charge with the EEOC alleging that the refusal to assign him higher-graded cases constituted discrimination on the basis of his race, color, and national origin, and retaliation for his earlier, successful, Title VII action. (Pantoja decl. Ex. D.) The EEOC issued a right-to-sue letter on August 27, 2002 (Compl. ¶ 12), and Brown filed this action on October 8, 2002.


I. Standard for Dismissal under Rule 12(b)(6)

On a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must accept "as true the facts alleged in the complaint," Jackson Nat'l Life Ins. Co. v. Merrill, Lynch & Co., 32 F.3d 697, 699-700 (2d Cir. 1994), and may grant the motion only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Thomas v. City of New York, 143 F.3d 31, 36 (2d Cir. 1998) (citations omitted); see also Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (when adjudicating motion to dismiss under Fed.R.Civ.P. 12(b)(6), the "issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims" (internal quotation marks and citations omitted)). When deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents attached to the complaint as exhibits or incorporated in it by reference. Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). All reasonable inferences are to be drawn in the plaintiff's favor, which often makes it "difficult to resolve [certain questions] as a matter of law." In re Independent Energy Holdings PLC, 154 F. Supp.2d 741, 747 (S.D.N.Y. 2001).

II. Exhaustion of Administrative Remedies

Title VII requires a plaintiff, prior to filing suit, to present a claim to the EEOC. 42 U.S.C. § 2000e-5(f)(1); Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000). The suit may then only assert "those claims that either were included in or are `reasonably related to' the allegations contained in [the] EEOC charge." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 83 (2d Cir. 2001). The EEOC charge here alleges only the failure to assign certain cases to plaintiff, and makes no mention of any failure to promote Brown,*fn3 of any harassment, or of any hostile working conditions. (Pantoja Decl. Ex. D, at 10, 13.) Nor does it allege facts that would support such claims. Therefore, those claims must be dismissed.

III. Adverse Employment Action

To state a claim for employment discrimination, a plaintiff must allege that some "adverse employment action" took place. Weeks v. New York State Div. of Parole, 273 F.3d 76, 85 (2d Cir. 2001). Defendant argues that Brown has failed to state a cause of action because "receiv[ing] assignments not to [one's] liking" does not qualify as an "adverse employment action" upon which a Title VII complaint may be based. (D. Mem. at 16.) If Brown's complaint asserted no more than that he did not like the cases he was assigned, defendant would be correct. However, Brown's complaint, and the attached documents incorporated within it, clearly assert that the cases are graded not according to an employee's subjective preferences, but according to an objective rating system used by the IRS, and that the higher-graded cases were assigned to other RAs specifically for the purpose of "career development, improvement and advancement." Furthermore, Brown alleges that the assignment practices had a concrete effect on agents' careers, such that "[a]ll the agents (whites) that started with me, and even those who started after me were promoted." (Compl. Ex. I at 1, 3.) Brown clearly is alleging that his opportunities for promotion were adversely affected by the assigning practices he complains of. Such allegations would appear to place Brown's complaint in the heartland of Title VII's intent "`to strike at the entire spectrum of disparate treatment . . .' in employment." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (quoting Los Angeles Dep't of Water and Power v. Manhart, 435 U.S. 702, 707 n. 13 (1978)). Defendant is entitled, of course, to dispute any and all of the factual predicates to Brown's claim of discrimination, but only after both sides have had a full opportunity for factual discovery.

The specific conduct alleged by Brown falls within the spectrum of employment actions that have been deemed "adverse" by the Second Circuit and by courts in this District.*fn4 As a general matter, the Second Circuit has held that there is no bright line rule for determining "whether the challenged employment action reaches the level of `adverse,'" and that courts must therefore "pore over each case" to make this determination. Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). In the context of job transfers, the Second Circuit has suggested that employment actions resulting in assignments "materially less conducive to career advancement" should be considered "adverse employment action[s]." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 641 (2d Cir. 2000). District courts have in some cases deemed individual assigning decisions and patterns of assigning decisions to be "adverse employment actions" by virtue of their effect on "career advancement." See Little v. National Broadcasting Co., Inc., 210 F. Supp.2d 330, 381 (S.D.N.Y. 2002) ("The discriminatory denial of a high-profile assignment may, in certain circumstances, constitute an adverse employment action."); Bogart v. New York City Law Dept., Dkt. No. 00 Civ. 7417 (DLC), 2001 WL 1631986, at *9 (S.D.N.Y. Dec. 20, 2001) ("[D]iminishing the responsibilities of an employee may constitute an adverse employment action."); see also Ewing v. Coca Cola Bottling Co. of New York, Inc., Dkt. No. 00 Civ. 7020 (CM), 2001 WL 767070, at *6 (S.D.N.Y. June 25, 2001) ("[S]ystematic exclusion of plaintiffs from access to the semi-skilled machine jobs, which require training that enhances an employee's skill set and may lead to promotional opportunities, is certainly an adverse employment action."); Johnson v. Reliable Mail Service, Inc., Dkt. No. 99 Civ. 5877 (LMM), 2001 WL 1506007, at *3 (S.D.N.Y. Nov. 26, 2001) ("An adverse employment action includes discharge, disciplining, and any action that affects `promotions, transfers and recalls after layoffs.'" (Emphasis added.)).

Of course, "subjective dissatisfaction with assignments does not constitute adverse employment action." Harrison v. New York City Off-Track Betting Corp., 99 Civ. 6075 (VM), 2001 WL 1154691, at *3 (S.D.N.Y. Sept. 28, 2001). But here, Brown makes the objectively testable claim that certain cases, which were not merely subjectively to his liking, but were objectively rated higher by the employing agency itself, were "available" and in fact assigned to other members of his Team, with the tangible result of possible "career development, improvement and advancement." (Compl. Ex. I at 1.) He is entitled to offer evidence of this disparate treatment and its effect on his opportunities for advancement.

IV. Collateral Estoppel

Defendant claims that the very issue of whether the denial of higher-graded assignments to Brown is an "adverse employment action" was considered and decided in defendant's favor in one of Brown's earlier Title VII cases, and that he is therefore barred under the doctrine of collateral estoppel from relitigating it here. Collateral estoppel "bars relitigation of a specific legal or factual issue in a second proceeding where `(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits.'" Grieve v. Tamerin, 269 F.3d 149, 153 (2d Cir. 2001) (citation and internal quotation omitted). The claims, and therefore the issues, in Brown's earlier suit are similar but not identical to those here. In the earlier suit, Brown alleged that in 1993 he had been assigned ten "non-filer cases," as distinct from "regular cases" that would "qualify [him] for promotion." (Pantoja Decl. Ex. E, at 5 & attached Jan. 24, 1994, letter.) The court, in a summary "Memorandum and Order" dated February 21, 1997, found that the "allegations fail to establish an adverse employment decision within Title VII." (Pantoja Decl. Ex. G.) However, whether the 1993 assignment of "non-filer" cases constituted an adverse employment action, and whether the alleged pattern of assigning lower-graded cases to Brown in 2000 was one, are not "identical" issues. Collateral estoppel is therefore inapplicable.*fn5

V. Statute of Limitations

Finally, defendant argues that whether or not the assigning decisions alleged by Brown were "adverse employment actions," they took place more than 45 days before he consulted a counselor at the agency's EEO office, and thus any claims based on them are time-barred under 29 C.F.R. § 1614.105(a)(1). Brown first attempted to consult a counselor with respect to these allegations on October 16, 2000. (Compl. Ex. I at 1.) Therefore, a claim based on any conduct prior to September 1, 2000, is time-barred unless the violation alleged is a continuing violation.

Brown's allegations include at least some discriminatory conduct that occurred after September 1, 2000. He states that he requested "High Graded cases" on September 13, 2000, and that Chillemi "replied to [him] verbally . . . that[] no agents in the group were working these classes of cases." Id. In light of Brown's claim that other agents were working on the higher-grade cases, which must be accepted as true for the purposes of this motion to dismiss, it would appear that Brown is alleging that Chillemi was avoiding assigning them to Brown for reasons Chillemi did not wish to disclose. Brown also alleges that he was assigned two higher-graded cases that had "no audit potential" on September 21, 2000. Id. Furthermore, the alleged frequency of Brown's requests for higher-graded cases supports an inference that assignments were made, to Brown and other RAs in the Team, on a regular basis during the period from September 1, 2000, to October 16, 2000, and beyond,*fn6 and therefore that other instances of discriminatory conduct took place then.

Brown argues that even the discriminatory assignment of cases prior to September 1, 2000, can be the subject of this action since plaintiff is "clearly attempting to show that there is a continuing violation and a policy of refusing to give him higher graded assignments." (P. Opp. at 17.) The "continuing violation" doctrine permits a delay of the limitations period until the "last discriminatory act in furtherance of' a "practice and policy of discrimination." Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (internal citation and quotation omitted). Defendant responds that "each discrete employment action is a separate event that . . . needed to be brought to the attention of an EEO Counselor within 45 days," citing cases that involve "rejection of a proposed accommodation," a "job transfer, or discontinuance of a particular job assignment," and "job assignments and promotions." (D. Reply Mem. at ¶ & n. 4.) Since Brown appears to allege an ongoing failure to give him discrete assignments, and in light of the allegation that Yves Gelin was treated similarly, the possibility that the conduct was in furtherance of a "practice" or "policy" cannot be ruled out. But Brown's complaint fails to allege facts that would assist the Court in determining whether the manner or frequency of assigning cases to RAs within the Team warrants treating the failure to assign him higher-graded cases as a series of discrete acts or as a continuing violation. Although the Court typically is obligated to construe pro se complaints liberally, Brown now has counsel, who had, but did not take advantage of, the opportunity to file or seek leave to file an amended complaint to cure this defect. Therefore, the complaint will be dismissed as to any conduct occurring prior to September 1, 2000. Since in any event it is desirable for counsel to file an amended complaint in place of plaintiffs rudimentary pro se filing, plaintiff is granted leave to file an amended complaint, no later than May 12, 2003. Such complaint may, if appropriate, include facts supporting a claim of a "practice or policy" of discrimination.


For the reasons stated above, defendant's motion to dismiss is granted as to all claims of failure to promote, harassment, and hostile working conditions, and as to any claim of discrimination or retaliation arising from discrete acts prior to September 1, 2000. Defendant's motion to dismiss is denied as to plaintiff's claim of discriminatory work assignments and retaliation after September 1, 2000. The dismissal of plaintiff's claim of a continuing violation encompassing events prior to September 1, 2000, is granted without prejudice to any appropriate renewal of that claim in an amended complaint.


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