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 ...