United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
W. WOOD, United States District Judge
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.
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.
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.
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.
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.
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. ¶
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.
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.
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.
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. ¶¶
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.
filed their partial motion to dismiss on June 28, 2016. ECF
No. 42. The case was reassigned to the ...