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Gelin v. Geithner

March 26, 2009


The opinion of the court was delivered by: Kenneth M. Karas, District Judge


Plaintiff Yves Gelin brings this action against the Secretary of the Treasury ("Defendant"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), alleging that he has been discriminated against by Defendant on the basis of his race and national origin and in retaliation for his prior invocation of the Equal Employment Opportunity ("EEO") process.*fn1 Presently before the Court is Defendant's motion for summary judgment. For the reasons set forth below, Defendant's motion is granted.

I. Background

A. Factual Background

1. Plaintiff and His Supervisors

Plaintiff, a black male of Haitian descent, is employed by the Internal Revenue Service ("IRS") as a Grade-Service Level ("GSL") 13 Internal Revenue Agent ("RA").*fn2 From September 2004 until October 2005, Wandalee McLaughlin ("McLaughlin") oversaw RAs at several posts of duty ("PODs"), including Plaintiff's POD, and was Plaintiff's immediate supervisor and Group Manager. (Pl.'s Decl. Ex. ("Pl.'s Ex.") P (Suppl. Decl. of Wandalee McLaughlin Prepared in Connection with Pl.'s EEO Compl. No. 05-2614, dated May 22, 2006), at 1.) During that time, McLaughlin's direct supervisor was John Richard Smith ("Smith"), who in his capacity as Territory Manager was second-line manager to all of the agents in McLaughlin's group, including Plaintiff. (Pl.'s Ex. R (Decl. of J. Richard Smith Prepared in Connection with Pl.'s EEO Compl. No. 05-2614), at 1.) Smith's direct manager at the time was William P. Marshall ("Marshall"), the Director for the North Atlantic Examination area. (Pl.'s Ex. S (Decl. of William P. Marshall Prepared in Connection with Pl.'s EEO Compl. No. 06-2185, dated May 24, 2006), at 12.) Marshall never directly supervised or managed Plaintiff.

(Id.) In January 2006, Kathleen McLoughlin ("McLoughlin") replaced McLaughlin as Plaintiff's first-line manager. (Pl.'s Ex. O (Decl. of Kathleen McLoughlin Prepared in Connection With Pl.'s EEO Compl. No. 05-2614, dated May 24, 2006), at 1.)

Plaintiff cites to ten incidents or circumstances that occurred between September 2004 and May 2006 that he contends violated Title VII. The Court will discuss the factual background of each alleged incident.

2. Plaintiff's Transfer from the White Plains POD

Plaintiff was promoted on September 19, 2004 from GSL-12 to GSL-13, and he received an increase in salary. (Def.'s Local Rule 56.1 Statement of Undisputed Facts ("Def.'s 56.1 Stmt.") ¶ 17; Pl.'s Ex. R, at 1.) Plaintiff alleges that around the same time, he was reassigned from the White Plains POD to the New Windsor POD, near Poughkeepsie, ostensibly to "isolate [him] from [the] White Plains Office" to which he had been assigned since 1988. (Compl. ¶ 8.h.) According to Smith, Plaintiff "was not reassigned to isolate him." (Pl.'s Ex. R, at 2.) Rather, Smith stated that Plaintiff was reassigned to the New Windsor POD, near Poughkeepsie, after Plaintiff's promotion to ensure that GSL-13 RAs reported to higher-graded GSL-14 managers. (Id.) In addition to Plaintiff, two other GSL-13 RAs were also assigned to the New Windsor POD. (Id.) According to both Smith and McLaughlin, "although [Plaintiff] was assigned to the New Windsor group and manager, he did not physically move from the White Plains office." (Pl.'s Ex. R, at 2; Pl.'s Ex. P, at 3.)

3. Assignment to Previously Classified Cases

In or about April or May 2005, McLaughlin assigned Plaintiff to audit several cases that he had previously classified.*fn3 (Compl. ¶ 8.i; McLaughlin Decl. ¶¶ 13-15.) Plaintiff contends that this was an act of retaliation because it would have presented a conflict of interest for him to work on these cases. (Compl. ¶ 8.i; McLaughlin Decl. ¶ 15.) When McLaughlin assigned the cases to Plaintiff, she was unaware that he had previously classified them.*fn4 (McLaughlin Decl. ¶ 15.) Plaintiff notified McLaughlin by e-mail on April 15, 2005, that she had assigned him several tax returns that he had previously classified and that he believed that this posed a conflict of interest. (Pl.'s Local Rule 56.1 Statement of Undisputed Facts ("Pl.'s 56.1 Stmt.") ¶ 21; Def.'s 56.1 Stmt. ¶ 21; McLaughlin Decl. ¶ 13, Ex. B.) After checking into the IRS policy, McLaughlin notified Plaintiff that he was correct that it would be inappropriate for him to work on those tax returns. (Pl.'s 56.1 Stmt. ¶ 22; Def.'s 56.1 Stmt. ¶ 22; McLaughlin Decl. ¶ 13, Ex. B.) She asked Plaintiff to give these tax returns back to her, explaining that she would assign different returns to him. (McLaughlin Decl. ¶ 13, Ex. B.) Plaintiff returned the cases without working on them. (Pl.'s 56.1 Stmt. ¶ 23; Def.'s 56.1 Stmt. ¶ 23.) Plaintiff offers no evidence suggesting that this exchange adversely affected his employment.

4. Management's Inaction on Plaintiff's Harassment Allegation

Plaintiff complains that on June 16, 2005, he reported to Marshall that the Group Clerk, Carol Marinucci ("Marinucci"), had harassed him, but he never received a response from Marshall. (Compl. ¶ 8.j.) Defendant contends that Marinucci's conduct did not constitute harassment. (Def.'s Mem. of Law in Supp. Mot. for Summ. J. ("Def.'s Mem.") 9-10.) Plaintiff and Marinucci have never met in person. (Def.'s 56.1 Stmt. ¶ 32; Pl.'s 56.1 Stmt. ¶ 32.) Rather, Plaintiff's claim of harassment stems from e-mail correspondence between himself and Marinucci on May 16, 2005 and May 23, 2005. (Pl.'s 56.1 Stmt. ¶ 32; Def.'s 56.1 Stmt. ¶ 33; Tr. 170-73.) As the Group Clerk, one of Marinucci's duties was to send periodic e-mails to all agents in McLaughlin's group to remind them to submit monthly reports, known as IVL reports. (Pl.'s 56.1 Stmt. ¶ 31; Def.'s 56.1 Stmt. ¶ 31; McLaughlin Decl. ¶ 17, Ex. C.) In response to such an e-mail sent by Marinucci to all members of McLaughlin's group, Plaintiff responded as follows:

Every month I submit my IVL to you. It appears that your manager Wanda McLaughlin is ordering you to keep bothering me every day. Please stop it, I also have legal rights. This IVL was submitted to you at the month end. (McLaughlin Decl. Ex. C.) In a lengthy e-mail response to Plaintiff's e-mail, Marinucci explained that when she has not received IVL reports from RAs on the day that they are due, she "usually start[s] calling Agents and requesting the information." (Id.) In the portion of Marinucci's e-mail that Plaintiff alleges constitutes harassment (Tr. 170-73), Marinucci stated:

I do not appreciate your sarcasm when I do this, I am doing my job and what is required of me. If ANY AGENT does not have the required information, I will call/e-mail that agent or if more than one, those agents. I should not need to call or e-mail anyone, as all Agents are aware of what is expected and required of them. You are making my position very hard to do and very uncomfortable. I do not feel that you should speak/write to me in that way and do not expect you to address me in that way in the future. My Manager does not tell me who to contact regarding reports or in any other matter. I have been doing this job for 11 years and I know what is expected of me and what I need to do and what to request to complete my job.

(McLaughlin Decl. Ex. C (emphases in original).) Plaintiff e-mailed a response to Marinucci's e-mail restating his position that her initial e-mail "was a provocation, although [she] tried to cover [herself] by putting every[one's] name on it." (Id.) Subsequently, he forwarded Marinucci's e-mail to Marshall, stating that "group manager Wanda McLaughlin is abusing her authority by ordering her secretary to provoke me." (McLaughlin Decl. Ex. C; Compl. ¶ 8.j.) Although Marshall does not recall the specific e-mail, he stated that he "received innumerable e-mail messages . . . from [Plaintiff] asserting a variety of allegations regarding . . . interactions with management and other employees." (Pl.'s Ex. S (Decl. of William P. Marshall Prepared in Connection with Pl.'s EEO Compl. No. 05-2614, dated Feb. 13, 2006), at 3.) He would "refer all such messages to lower levels of management and Labor Relations Staff," but on the advice of General Legal Services, he would "not respond to these messages." (Id.)

5. Plaintiff's Assignment to Twenty-One Partnership Cases

Plaintiff contends that in July 2005 he was assigned by McLaughlin to twenty-one partnership cases. (Compl. ¶ 8.k.) Defendant concedes that McLaughlin may have assigned Plaintiff twenty-one partnership cases over the course of several months. Generally, "a tax return filed by a taxpayer in White Plains would get reviewed by a[n] [RA] in [] White Plains []." (McLaughlin Decl. ¶ 4.) When McLaughlin assigned cases to RAs, she would assign the "more complex tax returns . . . to the most senior [RAs] under [her] supervision," which were GSL-13 RAs. (Id. ¶ 6.) As partnership cases may be more complicated than individual or S-Corporation tax returns, "those cases are more properly assigned to more senior [RAs]." (Id. ¶ 7.) Because Plaintiff was the only GSL-13 RA under McLaughlin's supervision in White Plains, he was "necessarily . . . issued the most complex White Plains tax returns." (Id. ¶ 6.) In any event, Plaintiff was able to return the partnership cases that he was not able to handle. (McLaughlin Decl. ¶ 9; Pl.'s 56.1 Stmt. ¶ 28; Def.'s 56.1 Stmt. ¶ 28.) "Plaintiff was not reprimanded, and his evaluation was not affected" by his return of some of the partnership cases "because agents are allowed to return tax returns depending on varying work loads." (McLaughlin Decl. ¶ 9; Pl.'s 56.1 Stmt. ¶ 29; Def.'s 56.1 Stmt. ¶ 29.)

6. Disappearance of Closed Cases

Plaintiff alleges that he also was discriminated and retaliated against between July 2005 and October 2005, when McLaughlin notified Plaintiff that she had not received several cases that he said he had closed. (Compl. ¶ 8.l.) The IRS Internal Revenue Manual ("IRM") requires that when shipping via UPS, the sender must complete a Form 3210 to track returns. See IRS., Internal Revenue Manual §, available at (last visited Mar. 5, 2009) (hereinafter "IRM"). The Form 3210 must identify the taxpayer's name, social security number, employer identification number, tax period, the person to whom it is being sent, the date it was sent, and the transmittal code. See id. The sender must sign and date the form and keep a copy. See id. The recipient must sign the Form 3210 and return acknowledgment to the sender upon receipt of the return. Id. If the sender does not receive an acknowledgment within ten days, he must perform an immediate follow-up by phone or mail. See id.

In July 2005, Plaintiff e-mailed McLaughlin to inform her that he had closed two cases in April, but those cases were still listed on his inventory. (McLaughlin Decl. ¶ 24, Ex. G; Def.'s 56.1 Stmt. ¶ 38; Pl.'s 56.1 Stmt. ¶ 38.) McLaughlin asked Plaintiff to fax the Form 3210 so that she could trace the cases. (McLaughlin Decl. ¶ 24, Ex. G; Def.'s 56.1 Stmt. ¶ 39; Pl.'s 56.1 Stmt. ¶ 39.) Plaintiff was unable to find the Form 3210, claiming that McLaughlin never returned the acknowledgment to him. (McLaughlin Decl. ¶ 24, Ex. G.) Plaintiff does not assert that he followed up with McLaughlin within ten days, as required under the IRM. In fact, at his deposition, Plaintiff stated that he never personally tried to ship the returns because "[i]t's the secretary's job." (Tr. 121:12-22; Pl.'s 56.1 Stmt. ¶ 35.) He further stated that he was "not aware" that he had to complete a Form 3210 when he shipped the cases because he had "never been in the position" of having to ship cases and that he "never request[s] a return receipt . . . because [he] didn't think it was necessary." (Tr. 126:9-15; 121:10-11; 122:21-123:2.) McLaughlin recounted that she ultimately worked with Plaintiff to reconstruct and close the cases. (Pl.'s Ex. P, at 14.) Plaintiff has presented no allegations or evidence disputing McLaughlin's recollection.

7. Processing of Plaintiff's Travel Voucher

Because much of an IRS field agent's work is done outside of the office, IRS employees complete a "locator," which is a calendar that identifies where the agent intends to be during the coming months. (McLaughlin Decl. ¶ 25; Def.'s 56.1 Stmt. ¶ 41; Pl.'s 56.1 Stmt. ¶ 41.) The term "flexi" means that the employee will not be traveling but will work from home that day. (McLaughlin Decl. ¶ 25; Def.'s 56.1 Stmt. ¶ 42; Pl.'s 56.1 Stmt. ¶ 42.) If the employee's schedule changes, the employee must go into his locator to update his records. (McLaughlin Decl. ¶ 25; Def.'s 56.1 Stmt. ¶ 43; Pl.'s 56.1 Stmt. ¶ 43.) When seeking reimbursement for travel, the employee must submit his travel voucher, along with a copy of his locator to his supervisor. (McLaughlin Decl. ¶ 26.) If there is a discrepancy, the supervisor will ask the employee to review the discrepancy and update the locator. (Id.)

Plaintiff contends that after he submitted a travel voucher on July 25, 2005, McLaughlin accused him of submitting a false travel voucher, and she delayed processing the voucher for two weeks, until August 9, 2005, despite "IRS [policy] . . . that travel vouchers must be approved within 3 days of receipt." (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Mem.") 4; Compl. ¶ 8.n.) McLaughlin states that she did not approve Plaintiff's travel voucher immediately because there was a discrepancy between his locator and his travel voucher. (McLaughlin Decl. ¶ 27.) Accordingly, McLaughlin sent Plaintiff an e-mail stating the following:

In the process of approving all travel vouchers in the group, I match the locator to the travel voucher. Your travel voucher for the period 5/17/05-7/25/05 has days where you charged travel but show flexi as your location on your locator. These days are 6/16/05, 6/17/05, 6/21/05 and 6/22/05. Please research your records and correct your locator or travel voucher, whichever is applicable. Please send me the corrected locator and/or travel voucher so that I may sign your TRAS voucher. Thank you. (Id. Ex. H.) After receiving McLaughlin's e-mail, Plaintiff submitted a revised locator by fax on July 28, 2005. (Id. ¶ 28.) McLaughlin received the revised locator, and the travel voucher was approved two weeks later, on August 9, 2005. (Pl.'s Mem. 4.)

8. Plaintiff's TIGTA Complaint and Subsequent Suspension

On May 2, 2005, Plaintiff voluntarily participated in a classification detail in Holtsville, New York to classify tax returns for an audit.*fn5 (Def.'s 56.1 Stmt. ¶ 1; Pl.'s 56.1 Stmt. ¶ 1.) Prior to beginning the classification detail, Plaintiff received an e-mail written by Cheryl Martel ("Martel"), IRS Classification Section Chief, that stated as follows:

I've booked a block of rooms at the Holtsville Residence Inn.

Telephone number 631-475-9500. Ask for Jen in Sales and the rooms are booked under IRS Classification. The rate is $126 a night and the per diem is $43. The hotel is 3 miles from the campus and you don't have to get on the highway. It's all back roads. (McLaughlin Decl. Ex. E.) Plaintiff opted not to stay at the Residence Inn. (Tr. 34:20-35:10.) When Plaintiff began the classification detail, he was involved in a dispute with classification detail manager John Roche ("Roche") over the working hours of the detail. (Pl.'s Ex. G (Letter from U.S. Office of Special Counsel to Plaintiff, dated Oct. 25, 2006), at 2; Pl.'s Ex. X (Mem. from John Roche regarding the classification detail, dated May 9, 2006).) According to Roche, Plaintiff "became disruptive in the work area" after the dispute. (Id.) Roche claims that he instructed Plaintiff to call McLaughlin, but Plaintiff refused to take instructions from Roche. (Id.) Plaintiff was ultimately removed from the classification detail. (McLaughlin Decl. ¶ 20; Pl.'s 56.1 Stmt. ¶ 5; Def.'s 56.1 Stmt. ¶ 5.)

In mid-May 2006, Plaintiff sent a letter to the Treasury Inspector General for Tax Administration ("TIGTA") and the IRS Board of Employee Professional Responsibility ("BEPR") alleging that Martel committed a violation of law, rule, or regulation by sending the e-mail about the block of rooms she had set aside at the Residence Inn. (Pl.'s Ex. G, at 2.) Plaintiff claimed that Martel "begged [Plaintiff] to change [his] room reservations" and that "Martel's insistence that [he] change [his] room reservations to a hotel that she had booked violated IRS regulations." (Id.) On July 11, 2005, Smith proposed that Plaintiff be suspended for fifteen days for making false and malicious statements about a manager and behaving disrespectfully toward Roche, an IRS supervisor. (Id.) On August 15, 2005, Plaintiff filed a written response to the proposal. (Def.'s Ex. D, at 2.) On September 21, 2005, the deciding official sustained the charges that Plaintiff behaved disrespectfully toward a manager and imposed a fifteen-day suspension. (Id.) Plaintiff was then suspended for fifteen days, from October 10, 2005 through October 25, 2005. (Tr. 90:18-24.)

On November 1, 2005, Plaintiff filed a complaint with the United States Office of Special Counsel ("OSC") alleging that he was retaliated against for engaging in whistleblowing and protected activity. (Pl.'s Ex. G, at 2.) After investigation, the OSC closed Plaintiff's whistleblowing allegations on October 25, 2006, determining that "it [was] unlikely that the IRS suspended [Plaintiff] based on [his] involvement with protected activity." (Id. at 3.) Plaintiff also raised to the OSC his claim of discrimination based on race and national origin, but the OSC did not take action on such allegations "as they are more appropriately resolved through the EEO process." (Id.)

9. Disruption to Plaintiff's Remote Access

Plaintiff alleges that he was discriminated and retaliated against when his remote access to the IRS computer system was disabled from October 2005 through November 2005. (Compl. ¶ 8.o.) It is IRS policy to restrict computer access of employees who are suspended. (McLaughlin Decl. ¶ 30.) Plaintiff's remote access to the IRS computer system was disabled on October 12, 2005, two days after his suspension began. (Tr. 98:2-99:4; Pl.'s Ex. P, at 2.) After Plaintiff's fifteen-day suspension ended, he was still unable to log on to the IRS system from his home computer. (McLaughlin Decl. ¶ 30; Pl.'s Ex. P, at 2.) Though he did have computer access in the IRS office, Plaintiff needed remote access because he often worked in the field or at home and was present in the office only a few times a month. (Def.'s 56.1 Stmt. ¶ 16; Pl.'s 56.1 Stmt. ¶ 16.)

Plaintiff notified McLaughlin of the problem, and McLaughlin contacted the IT Department. (McLaughlin Decl. ¶ 31.) The IT Department advised McLaughlin that the IRS had recently converted to a new remote access system, and Plaintiff was still trying to access the IRS server using the old system. (McLaughlin Decl. ¶ 31; Pl.'s Ex. P, at 2.) The IT Department also explained that Plaintiff had not submitted a Form 5081 to request an account and password for the new system, despite having been informed of the need to do so in September 2005. (McLaughlin Decl. Exs. I & J.) Although Plaintiff alleges that McLaughlin intentionally failed to "forward the e-mail [regarding the new system] to Plaintiff" (Pl.'s Mem. 10), it is clear on the face of the e-mail that information about the new remote access system was sent to "[a]ll IRS [e]mployees" (McLaughlin Decl. Ex. I). In any event, Plaintiff's remote access to the IRS computer system was ultimately restored before December 2005. (Compl. ¶ 8.o.)

10. Non-Assignment to Managerial Duties

In Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment, he alleges for the first time that the IRS failed to promote him by refusing to assign him managerial duties.*fn6 (Pl.'s Mem. 6.) Plaintiff claims that he requested managerial duty between March and September 2005 "to obtain some experience to become a manager."*fn7 (Id.)

McLaughlin contends that Plaintiff requested managerial duty "for the first and only time" on March 28, 2005. (Pl.'s Ex. P, at 15.) Defendant does not dispute Plaintiff's claim that he was not assigned managerial duties. (Id.) Rather, Defendant contends that Plaintiff was not assigned managerial duties for the following reasons:

[Plaintiff] would not come to the New Windsor or Poughkeepsie PODs. When asked to attend group or mandatory meetings [Plaintiff] responded 'I will not attend the group meeting due to long travel.' [Plaintiff] did not attend any group meetings or mandatory meetings in New Windsor while in [McLaughlin's] group. He was allowed to attend the mandatory meetings in White Plains with one of the examination groups located there and he was sent the minutes and handouts from the group meetings. [Plaintiff] would have been allowed mileage and travel time from his home to attend the meetings. Other agents in the group traveled long distances from their homes and were able to attend the meetings. Not all of [McLaughlin's] agents are located in [her] POD. To act as manager the acting agent has to come to the POD ...

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