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Lorber v. Lew

United States District Court, S.D. New York

February 13, 2017

DANIEL LORBER, Plaintiff,
v.
JACOB LEW, SECRETARY DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE; ROSEMARY J. SERETI in her individual capacity; DAVID W. HORTON in his individual capacity; SHARON R. PORTER in her individual capacity; AND PAMELA J. DRENTHE in her individual capacity, Defendants.

          MEMORANDUM OPINION AND ORDER

          KIMBA W. WOOD, United States District Judge

         Plaintiff, Daniel Lorber, an openly gay male who was employed as a manager at the Internal Revenue Service ("IRS"), brings this action for discrimination and retaliation against Jacob Lew, the then-Secretary of the Treasury, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and against four individuals at the IRS in their individual capacity- Rosemary J. Sereti, David W. Horton, Sharon R. Porter, and Pamela J. Drenthe-pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Defendants move to dismiss four counts of Plaintiff s amended complaint. For the reasons stated below, Defendants' motion is GRANTED in part and STAYED in part.

         I. BACKGROUND[1]

         At all relevant times, Plaintiff worked as a Supervisory Internal Revenue Agent-a Front Line Manager position-in the Large Business and International ("LBI") division, International Individual Compliance ("IIC") subdivision, of the IRS. Am. Compl. ¶¶ 18, 44, ECF No. 39. Supervisory Internal Revenue Agents are managed by Senior Managers, who oversee day-to-day operations of their subdivision. Id. ¶ 23. Under IRS merit promotion rules, the IRS may not non-competitively promote a Front Line Manager to a Senior Manager. Id. ¶ 52. A Front Line Manager can receive a temporary assignment as a Senior Manager if that individual is a member of the Senior Manager Readiness Program ("SMRP"), id. ¶ 29, but participation in the SMRP is not a guarantee of a permanent Senior Manager position, id. ¶ 30, and neither participation in nor graduation from the SMRP is required to become a Senior Manager, id. ¶ 31.

         Prior to July 21, 2014, a potential candidate for a Senior Manager position was required to obtain an Evaluation of Managerial Potential ("EMP"), in which the candidate's immediate manager would rank the employee and the candidate's second-level manager would approve or disapprove the rankings. Id. ¶¶ 32, 33, 35. The score in each category could be "Ready Now, " "Ready in 1-2 years, " or "Ready in 3-5 years." Id. ¶ 34. After July 21, 2014, a potential candidate was instead required to obtain a Leadership Succession Review ("LSR") from his immediate manager, which would then be approved or disapproved by the candidate's second-level manager. Id. ¶¶ 39-41.

         In April 2012, the IRS announced that Carmen Hahn, a heterosexual female employee, was selected to temporarily act in a Senior Manager position, for which the IRS indicated an individual from SMRP would be chosen. Id. ¶ 51, 52, 56. In June 2013, Plaintiff was made aware of an intranet page that listed IRS Front Line Managers and other employees who were in or had graduated from the SMRP. Id. ¶ 55. Plaintiff discovered that Hahn had never participated in the SMRP. Id. ¶ 56. Plaintiff alleges that Hahn was selected for the Senior Manager position by LBI executive Sereti, the then-Director of IIC, who was aware at the time of Hahn's promotion that (1) Hahn was not a SMRP candidate, (2) there were male SMRP candidates, (3) Hahn was not rated "Ready Now" on her EMP, and (4) other, more qualified male candidates were rated "Ready Now." Id. ¶¶ 60-62.

         When Hahn became Plaintiffs manager, she rated him as not being "Ready Now, " without an objectively reasonable basis, despite Plaintiffs former manager's assessment that he was ready for senior management. Id. ¶ 65, 73. This rating prevented Plaintiff from making the "best qualified" list for several Senior Manager positions. Id. ¶ 64. Plaintiff claims that Hahn gave him this rating to make him less likely to be chosen for a permanent Senior Manager position, for which females were also applying. Id. ¶ 66. Indeed, Plaintiff believes that Hahn has never rated a female employee as being anything less than "Ready Now" for Senior Manager positions. Id. ¶ 68.

         Plaintiff alleges that between approximately 2012 and 2014, Sereti was the selecting official for eleven positions, of which ten went to females. Id. ¶ 69-70. In March 2013, the IRS cancelled a Vacancy Announcement, for which Plaintiff had made the "best qualified" list, to prevent him from obtaining a Senior Manager position. Id. ¶ 74. Instead, a female employee, Jackie Rookwood, was non-competitively placed in the position. Id. ¶ 75. In April 2013, a female employee, Brenda Jackson, was non-competitively promoted to a Senior Manager position. Id. ¶¶ 79-82. The IRS also non-competitively placed Roseanne Perricelli, another female employee, into a Senior Manager position. Id. ¶ 83.

         Plaintiff also alleges that less qualified heterosexual male candidates were chosen for promotion over more qualified homosexual male candidates, such as Plaintiff. Id. ¶ 84. In September 2012, Horton, a heterosexual male and the then-Director of IIC, non-competitively selected Aureo Nieves, also a heterosexual male, for a Senior Manager position for which he was not eligible. Id. ¶¶ 86-88. Horton knew that Nieves was less qualified than Christopher Holmes, a gay man, who was not considered for the position. Id. ¶¶ 90-91. In June 2013, Plaintiff discovered that Ted Curtis, another heterosexual male, was non-competitively selected for a Senior Manager position, for which Plaintiff was substantially more qualified. Id. ¶ 92-93. Plaintiff was not considered for this position because the IRS allegedly did not want a homosexual male in a Senior Manager position. Id. ¶ 95.

         This same preference for heterosexual men over homosexual men is evidenced with respect to positions for which competition was numerically scored. For instance, in July 2012, Plaintiff applied for a Senior Manager position and received a ranked score of 91, which was the minimum qualifying score, but Horton and Porter directed that Plaintiff be hold that he did not make the cutoff score and was not qualified for the position. Id. ¶¶ 100-04. Similarly, in June 2013, Plaintiff applied for another Senior Manager position for which he was well qualified. Id. ¶¶ 105-06. Horton and Judith McNamara were involved in the selection process. Id. ¶ 107. Plaintiff was told that he did not make the "Best Qualified" score for the position, and a heterosexual male, Robert Benesch, was selected for the position. Id. ¶¶ 108-09. In July 2014, Plaintiff was informed that the "Best Qualified" cutoff was set at a number that guaranteed that his score would not be included in the list of eligible applicants to be interviewed. Id. ¶ 110. Plaintiff alleges that McNamara has made comments to other Frontline Managers that Plaintiff would never be a Senior Manager. Id. ¶ 111.

         Plaintiff participated in an Equal Employment Opportunity ("EEO") case filed by a coworker in March 2013, and filed his own EEO complaint in July 2013. Id. ¶¶ 113, 114. Plaintiff alleges that Horton, Sereti, Drenthe, Jeannie Fisher, Hahn, and Porter engaged in a pattern of retaliatory behavior against Plaintiff as a result of those activities. Id. ¶ 115. For instance, in March 2013, the IRS cancelled a Senior Manager vacancy announcement for which Plaintiff would have been the best qualified candidate. Id. ¶ 116. That same month, Hahn "distributed information about Plaintiffs disability and reasonable accommodation request to one of the Plaintiffs employee who had no need to know the information so as to humiliate, embarrass, and discredit Plaintiff as a Front Line Supervisor." Id. ¶ 117. In August 2013, Barbara Tobias, Plaintiffs supervisor at that time, forwarded her assessment of Plaintiff to Drenthe, a senior executive, who told Tobias that she expected Tobias not to send her a "high appraisal" of Plaintiff. Id. ¶¶ 118-26. When Tobias sent a "high assessment" of Plaintiff to Horton, Plaintiffs second-level supervisor, he refused to sign-off on the assessment. Id. ¶¶ 127-29. Horton also worked with Fisher, Plaintiffs supervisor effective September 2013, to lower Plaintiffs rating and annual evaluation. Id. ¶¶ 130-132. Plaintiffs ratings were lowered and negative language was added to his evaluation. Id. ¶ 132, 134. These ratings are "instrumental to promotion opportunities, raises, work assignments, bonuses, temporary details and other terms and conditions of Plaintiff s employment." Id. ¶ 133.

         Other retaliatory acts followed. Zc?. ¶ 135. In December 2013, Plaintiff was excluded from a managers meeting with the LBI Deputy Commissioner. Id. ¶ 136. Also in December 2013, the IRS purposefully placed a Senior Manager position outside of Plaintiff s post of duty to prevent him from applying for the position. Id. ¶ 137. In January 2014, Fisher disclosed information about Plaintiffs personal and private medical condition to other Front Line Managers who had no need to know, and Fisher harassed Plaintiff about his personal leave. Id. ¶¶ 138-39.

         In support of his hostile work environment claim, Plaintiff alleges that he has been: questioned about his personal leave usage; accused of being Absent Without Leave (AWOL); excluded from meetings; ridiculed based on his disability, his request for a reasonable accommodation, and his performance evaluation; falsely accused of being late in completing assignments; given a lowered LSR review; not assigned substantial daily responsibilities or duties; assigned minor and non-substantive tasks inconsistent with his job description; had employees removed from his supervision; prohibited from assigning tasks to his subordinate employees or review their work; and not selected for two vacancy announcements for Senior Manager positions. Id. ¶ 157. Plaintiff alleges that similarly situated females did not have these actions taken against them. Id.

         Defendants filed their partial motion to dismiss on June 28, 2016. ECF No. 42. The case was reassigned to the ...


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