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March 9, 2004.

MAUREEN O'DWYER, Plaintiff, -against-, JOHN W. SNOW, Secretary, United States Department of the Treasury, Defendant

The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge Page 2


Plaintiff Maureen O'Dwyer ("Plaintiff) alleges that the Defendant Secretary of the Treasury ("Defendant"), through his agents, Plaintiff's supervisors at the Internal Revenue Service ("IRS"), discriminated against her on the basis of gender, created a hosfile work environment, and engaged in retaliatory behavior in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Plaintiff also alleges that Defendant discriminated against her on the basis of age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff seeks injunctive relief, compensatory and punitive damages, and other relief, including attorneys' fees and costs. The Court has federal question jurisdiction of this action pursuant to 28 U.S.C. § 1331. Defendant has moved for summary judgment.

  For the reasons that follow, Defendant's motion is granted.


  Unless otherwise indicated, the following facts are undisputed. Plaintiff is a female who was born in 1937. Compl. at ¶ 9. At all times relevant to this action, Plaintiff was employed by the United States Department of the Treasury as an International Examiner, Grade GS-512-13, in the Examinations Division of the Manhattan District of the IRS. Id. ¶ 10. She began working for the IRS in 1987 as a Grade 7 Revenue Agent, and has had several grade increases since then. See Tr. 12/27/2001 O'Dwyer Dep. at 17-23. Around 1991, Plaintiff became an International Examiner. Compl. at ¶ 11. She continues to work for the IRS in that capacity. Tr. 12/27/2001 Page 3 O'Dwyer Dep. at 6.

  In the early part of 1996, Raymond Ring became Plaintiffs group manager. PL Local Rule 56.1 Statement*fn1 ("P.R. 56.1 St.") ¶ 5; Mem. Supp. Def's Mot. for Summ. J at 3. At that time, there were 12 people in Plaintiff's group, of whom Plaintiff was the eldest and most senior. 12/27/2001 O'Dwyer Tr. at 67-8, 77. Plaintiff had trouble with Mr. Ring early in his tenure, when, she alleges, Mr. Ring denied her religious credit that would have allowed her to take a day off for Lent. See id. at 86-8. From there, Plaintiff's problems with Mr. Ring escalated.

  Plaintiff's June 1996 Appraisal

  In October 1996, Plaintiff received her June 1996 Appraisal, which had been performed by Mr. Ring. See Tr. 12/27/2001 O'Dwyer Dep. at 89. Plaintiff alleges that the appraisal did not accurately reflect her job performance, since during that same time Plaintiff was singled out as one of only a few examiners asked to write a technical coordination report to be sent to Washington, D.C., and Plaintiff therefore deserved higher marks. Id. Specifically, Plaintiff alleges that Mr. Ring gave her the same numerical ratings that she had been given in the past, but gave her a worse narrative on paper than he had given her verbally when they met on October 1, 1996. She alleges that the narrative did not reflect her actual performance. Id. at 89-93. Because Page 4 she felt that the appraisal was inaccurate, Plaintiff filed a grievance with her union on October 21, 1996, in an effort to increase her numerical ratings and correct the appraisal's supporting narrative. Exh. H attached to Declaration of Danielle A. Gentin ("Gentin Decl").

  The Regional Analyst Position

  In or around January 1997, a Management Grade 14 Program Analyst position, for which Plaintiff was interested in applying, became available at the IRS. Tr. 12/27/2001 O'Dwyer Dep. at 26-29. In order to pursue the promotion, Plaintiff requested that Mr. Ring certify her for the position, which he refused to do. Id. at 27. Instead, Plaintiff alleges, Mr. Ring met with her on February 4, 1997, and "demeaned, humiliated and belittled her." PL R. 56.1 St. at ¶ 10; Tr. 1/29/2002 O'Dwyer Dep. at 272. In addition, Mr. Ring wrote two memos, dated February 5, 1997 and February 6, 1997, that Plaintiff alleges belittled Plaintiff's job performance. Tr. 12/27/2001 O'Dwyer Dep. at 207. Mr. Ring failed to certify Plaintiff even though, according to Plaintiff, he did certify younger employees and male employees. Id. at 108, 114.

  Defendant contends, however, that Plaintiff was not denied the position because of Mr. Ring's failure to certify her. Rather, Defendant asserts that she did not get the job because she never applied for it, having been informed by the personnel department that the job was a non — bargaining unit position for which Plaintiff was ineligible. See Mem. Supp. Def.'s Mot. for Summ. J. at 3; Tr. 12/29/2002 O'Dwyer Dep. at 307. Defendant points out that Plaintiff testified that, if she had been eligible for the promotion, she would have applied for it even without Mr. Ring's certification. Mem. Supp. Def's Mot. for Summ. J. at 4 (citing Tr. 1/29/20002 O'Dwyer Dep. at 307). In addition, Defendant alleges that Mr. Ring had good reason not to certify Page 5 Plaintiff for the management position — namely that, based on a document managers use to determine a candidate's qualifications, Plaintiff did not have enough of the attributes required and therefore was not qualified for the position. Id. (citing Tr. 1/29/2002 O'Dwyer Dep. at 316) Thus, while Plaintiff alleges that she was fully qualified for the Analyst position because she had been previously certified for a management position (Tr. 12/27/2001 O'Dwyer Dep. at 112), Defendant alleges that, in Mr. Ring's estimation, Plaintiff was not qualified since she did not possess enough of the requisite attributes. See Tr. 1/29/2002 O'Dwyer Dep. at 316.

  On February 26, 1997, Plaintiff filed a grievance with her union regarding Mr. Ring's alleged refusal to certify her for the analyst position. Exh. J to Gentin Decl.

  Plaintiff's Workload Review

  Shortly after Mr. Ring wrote the memos regarding Plaintiff's work performance, he scheduled a workload review of Plaintiff. The review took place over two days, February 13-14 1997. Tr. 12/27/2001 O'Dwyer Dep. at 71. Plaintiff alleges that the workload review violated procedure by wrongly including certain issues and material. Plaintiff does not detail each and every issue about which she complains. Id. at 72-3, 105. For example, Mr. Ring included Plaintiff's "survey after assignment," a one — sheet assessment of Plaintiff's work, in the review, which Plaintiff alleges he should not have done. Id. at 72-73. In addition, Plaintiff alleges that no other employee besides herself had a two — day workload review. Id. at 73-4. Plaintiff claims that Mr. Ring would not have treated her this way if she had been younger and male, and alleges that Mr. Ring did not treat a male who had to be retrained as badly as he treated her. Pl's R. 56.1 St. at ¶ 18; Tr. 12/27/2001 O'Dwyer Dep. at 121-22, 125, 127. Defendant contends, Page 6 however, that Plaintiff does not know how long other employees' workload reviews took to complete. Tr. 12/27/2001 O'Dwyer Dep. at 74. Defendant also points out that the second day of Plaintiff's workload review consisted of only one hour of review time. Id. at 75-6.

  On March 17, 1997, Plaintiff received her workload review evaluation and, on April 7, 1997, she brought a union grievance that resulted in the narrative portion of the review being removed from her records. Id. at 65-67; Exh. I to Gentin Decl.

  The March 17. 1997 Incident

  On the same afternoon she received her workload review evaluation, March 17, 1997, Plaintiff met with Mr. Ring so that he could talk to her about her visits with her Union representative. Tr. 12/27/2001 O'Dwyer Dep. at 138-39. According to Plaintiff, at that time Mr. Ring asked Plaintiff the purpose of a meeting she had scheduled with the Union for later in the day, and Plaintiff informed him that she had recorded her meeting on her daily locator and did not have to inform Mr. Ring of her reasons for scheduling the meeting. Id. at 139. As Plaintiff was speaking, she alleges, Mr. Ring tried to interrupt her, but Plaintiff continued to talk over him. Id. Then, according to Plaintiff, Mr. Ring "jumped across the desk," stretched out his hand toward her, coming as close as two inches to her face so that she jumped back in reaction, and told her to lower her voice. Id. at 139-45. Plaintiff alleges that she felt physically threatened, so she jerked backwards to avoid his outstretched arm and told Mr. Ring to take his hand down. Id. at 143-45, 150. Plaintiff then left Mr. Ring's office and went to the nurse's office because she felt unable to continue working and was afraid of further physical threats from Mr. Ring. Id. at 150. Page 7

  Defendant contends, however, that Mr. Ring merely asked Plaintiff where she was going and who she was going to see, in addition to telling her not to see anyone other than her Union steward. See Mem. Supp. Def.'s Mot. Summ. J. at 5; Tr. 12/27/2001 O'Dwyer Dep. at 141. According to Defendant, Plaintiff responded by shouting at Mr. Ring, whereupon Mr. Ring merely raised his hand over the desk between them and asked Plaintiff to lower her voice. See Mem. Supp. Def.'s Mot. Summ. J. at 5; Tr. 12/27/2001 O'Dwyer Dep. at 139-140.

  Plaintiff's Initial EEO Contact

  Because Plaintiff believed that Mr. Ring was singling her out because of her age and gender, Plaintiff made initial contact with an EEO Counselor on April 3, 1997. P.R. 56.1 St. at ¶ 22-23; Def. R. 56.1 St. at 31. Plaintiff alleges that Mr. Ring ...

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