United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti, United States District Judge.
Michael Mazzeo, a former special agent in the Criminal
Investigation division of the Internal Revenue Service
(“IRS”), brings this action against defendant
Steven T. Mnuchin, United States Secretary of the Treasury,
discrimination based on plaintiff's sex, race, national
origin, age, and disability under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e (“Title
VII”), the Age Discrimination in Employment Act of
1967, 29 U.S.C. § 621 (“ADEA”), and the
Rehabilitation Act of 1973, 29 U.S.C. § 791
(“Rehabilitation Act”). Plaintiff also brings a
retaliation claim, alleging he was threatened with
disciplinary action after he filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”).
the Court is defendant's motion for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. (Doc. #28).
reasons set forth below, the motion is GRANTED.
Court has subject matter jurisdiction under 28 U.S.C. §
following factual background is drawn from the amended
complaint and an August 3, 2015, decision of the EEOC that
plaintiff attached to, and relied on, in his opposition
purposes of deciding the pending motion, the Court accepts as
true all well-pleaded allegations in the amended complaint
and draws all reasonable inferences in plaintiff's favor.
is a white Italian-American male born in 1965, who at all
relevant times was employed as a special agent in the
Criminal Investigation division of the IRS.
December 2008, plaintiff suffered a left rotator cuff
impingement injury during defensive tactics training, and on
November 5, 2009, underwent left rotator cuff repair surgery.
As a result of his shoulder injury, plaintiff was placed on
limited duty in May 2010. Plaintiff subsequently experienced
a similar injury in his right shoulder.
February 2011, the United States Attorney's Office for
the Southern District of New York (“SDNY”)
notified plaintiff's supervisors that they would no
longer work with plaintiff, nor prosecute any cases assigned
to him, because they did not trust him. Plaintiff's SDNY
cases were subsequently reassigned to other agents. On March
30, 2011, one of plaintiff's supervisors informed him she
would hold weekly meetings with plaintiff to discuss the
progress of his investigations, and that he would be expected
to develop investigations in the Northern District of New
a physical examination of plaintiff, IRS medical review
officer Dr. Phong Dong Nguyen issued a report on August 11,
2011, concluding plaintiff was not able to perform the duties
of a special agent.
was scheduled for a fitness for duty examination on October
5, 2011 (which was subsequently rescheduled due to a
conflicting federal holiday), because of concerns regarding
plaintiff's ability to perform fully his duties as a
special agent in light of the limited range of motion in his
left shoulder following surgery, and his diagnosis of a right
rotator cuff tear.
October 5, 2011, plaintiff's third-level supervisor
proposed to suspend plaintiff's receipt of law
enforcement availability pay
(“LEAP”) because, since May 2010, plaintiff had
been unavailable to work unscheduled overtime due to his
ongoing medical issues.
November 2, 2011, and again on September 27, 2012, plaintiff
claims his supervisor directed him “to use or
lose” annual leave prior to his surgeries scheduled for
November 10, 2011, and October 18, 2012, respectively. (Am.
Compl. ¶ 15).
November 10, 2011, plaintiff underwent a second surgery on
his left shoulder. Prior to this surgery, plaintiff was
required to leave his government-issued vehicle, a 2008 Buick
Lucerne with 40, 245 miles on it, at his office. While out on
leave, plaintiff's government-issued vehicle was
reassigned to another special agent.
about November 30, 2011, while on leave recovering from
shoulder surgery, plaintiff was removed as a user from
certain IRS computer systems. On January 27, 2012, plaintiff
was restored as a user to the IRS computer systems.
January 1, 2012, plaintiff's LEAP was suspended.
Beginning on January 29, 2012, the receipt of LEAP no longer
appeared on any of plaintiff's SF-50 Personnel Action
January 30, 2012, plaintiff returned to work and was assigned
a 2007 Buick LaCrosse with around 45, 000 miles on it.
about March 5, 2012, plaintiff received a performance
appraisal for the period ending January 31, 2012, that
“[in]accurately reflected and failed to fully credit
his work performance.” (Am. Compl. ¶ 19).
claims beginning on April 6, 2011, he was provided with
incorrect information from “Human Capitol
officials” regarding leave buy back, and was
incorrectly charged 643 hours of sick leave that should have
been charged as leave without pay while plaintiff was
receiving workers' compensation benefits. (Am. Compl.
28, 2012, plaintiff was again ordered to attend a fit for
duty examination due to concerns raised regarding
plaintiff's ongoing shoulder injuries. Dr. Robert Hendler
performed an orthopedic evaluation of plaintiff, and
concluded plaintiff was not able to perform his job duties
safely and efficiently at that time. On July 24, 2012, Dr.
Nguyen conducted a medical fitness for duty evaluation of
plaintiff, and agreed with Dr. Hendler that plaintiff was
unable to perform the full duties of a special agent.
about October 9, 2012, plaintiff was notified he no longer
met the GS-1811 Treasury Enforcement Agent Qualification
Standards, and that he would remain on temporary restricted
duty until further notice.
October 18, 2012, plaintiff had surgery on his right
shoulder, and on September 25, 2013, he was cleared to return
to full duty.
12, 2014, plaintiff's LEAP was retroactively restored
from January 29, 2012- October 6, 2013.
March 2, 2012, plaintiff filed an EEOC complaint against the
IRS, which plaintiff subsequently amended to add additional
claims. On July 15, 2015, the EEOC held a consolidated
hearing during which plaintiff's supervisor Joan Totani,
among others from the IRS, testified. Plaintiff claims Totani
“was not completely truthful in her testimony.”
(Am. Compl. ¶ 26). On August 3, 2015, the EEOC issued a
decision in favor of the IRS.
August 4, 2015, approximately three weeks after the EEOC
hearing, plaintiff was called to a meeting with Totani and
his second-level supervisor, Manny Muriel. According to
plaintiff, he was “inaccurately” told the meeting
would not be “disciplinary” in nature. (Am.
Compl. ¶ 27). Plaintiff claims he was “threatened
with discipline” for filing his EEOC complaint at the
August 4, 2015, meeting. (Id. ¶ 28). On August
18, 2015, Muriel sent plaintiff a follow-up email,
instructing plaintiff to cease causing “discord and
dissention amongst the employees or management” or
possibly face disciplinary action. (Id. ¶ 30;
Bretz Decl., Ex. A).
December 26, 2015, plaintiff resigned from his position with
to Rule 12(c), at any time after the pleadings are closed,
but before trial commences, a party may move for judgment on
the pleadings. The legal standard applicable to a Rule 12(c)
motion for judgment on the pleadings and a motion to dismiss
pursuant to Rule 12(b)(6) are identical. Hayden
Paterson, 594 F.3d 150, 160 (2d Cir. 2010). Accordingly,
in deciding a motion under Rule 12(c), the Court evaluates
the sufficiency of the complaint under the “two-pronged
approach” announced by the Supreme Court in
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First,
plaintiff's legal conclusions and “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, ” are not entitled to the
assumption of truth and are thus not sufficient to withstand
a motion for a judgment on the ...