Katz v. Geithner

Filing 102

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION. Signed by JUDGE ALAN C KAY on 03/04/2013. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on 03/05/2013

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NORMAN KATZ,
Plaintiff,
v.
TIMOTHY F. GEITHNER, Secretary
of the Treasury,
Defendant.

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Civ. No. 09-00599 ACK-RLP

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION
In this action, Plaintiff Norman Katz claims under the
Rehabilitation Act of 1973, 29 U.S.C. § 791, that his former
employer, the IRS,1/ failed to accommodate his visual disability
and wrongfully discriminated against him because of that
disability when it fired him in June 2007. Mr. Katz has appeared
pro se throughout this action.
Mr. Katz filed his complaint in this Court on December 16,
2009. The parties filed cross-motions for summary judgment in
late 2010, which the Court denied on January 21, 2011.
The Court held a four-day bench trial on February 5 through
9, 2013. At the close of Mr. Katz’s case-in-chief, the IRS moved
for a judgment on partial findings under Federal Rule of Civil
Procedure 52(c). The Court reserved ruling on the motion. At the
1/

Mr. Katz properly named as Defendant Timothy Geithner,
then-Secretary of the Treasury, in his official capacity, as
required under 42 U.S.C. § 2000e-16(c) (incorporated into the
Rehabilitation Act by 29 U.S.C. § 794a(a)(1)). For clarity here,
however, the Court will refer to Defendant as “the IRS,” the
entity that employed Mr. Katz.

close of all evidence, the IRS renewed its motion, and the Court
again reserved ruling on it.
This Court has original jurisdiction pursuant to 28 U.S.C.
§ 1331, and venue is proper pursuant to 28 U.S.C. § 1391(a).
Having heard and weighed all the evidence and testimony presented
at trial,2/ having observed the demeanor of the witnesses and
evaluated their credibility and candor, having heard plaintiff’s
and defense counsel’s arguments and considered the memoranda
submitted, and pursuant to Federal Rule of Civil Procedure
52(a)(1), this Court makes the following findings of fact and
conclusions of law. Where appropriate, findings of fact shall
operate as conclusions of law, and conclusions of law shall
operate as findings of fact.
FINDINGS OF FACT
I.

Mr. Katz’s Background
A.

Education & Work History

1.

Mr. Katz studied mathematics and engineering sciences

at the Illinois Institute of Technology before transferring his
grades and credits to Washington University in St. Louis, from
which he graduated in 1969 with a Bachelor of Science Degree,
with a concentration in accounting and a minor in economics and
finance. (Parties’ Joint Stipulation of Fact (“Stip. Fact”) ¶ 1.)

2/

The parties waived all evidentiary objections and
stipulated to the admission of all exhibits with two exceptions:
(1) Exhibit 31 was excluded; (2) Exhibit 122, the transcript of
Mr. Katz’s deposition testimony was admitted only where extracts
had been designated in the IRS’s pre-trial filings or where they
had been discussed by witnesses at trial.
2

He worked in various accounting- and business-related positions
before passing the examination for Certified Public Accountant in
1973. (Id. ¶ 2.) He worked for a large Chicago CPA firm for about
a year and then as a sole practitioner. (Id.)
2.

In 1978, Mr. Katz bought a CPA practice in Hawaii. (Id.

¶ 3.) He was self-employed in that practice until about 1990,
when he gave the practice to his two partners and stopped working
as an accountant because of accommodative eye spasms (id.), a
serious condition described in more detail below.
3.

From 1990 to 1994, Mr. Katz worked as a venture

capitalist on an aero-electric energy project. (Id. ¶ 4.) From
1993 to about 2006 he took and passed Series 7, 63, 24 and 27
NASD Examinations and worked full-time as an investment banker,
general principal, or financial and operations principal for
seven or eight firms (one firm at a time) and for himself. (Id.)
B.

Visual Impairment

4.

In 1987, Mr. Katz was diagnosed with accommodative eye

spasms, which caused temporary blindness and headaches if he read
documents, computer screens or books at close range. (Id. ¶ 11.)
The temporary blindness was measured during one event to last 15
minutes and during another event to last 40 minutes. (Id.) The
only remedy for the spasms was for Mr. Katz to look into the
distance or close his eyes until the spasm stopped. (Ex. 12
at 2.) Because of this condition from 1987 until his employment
by the IRS in 2006, Mr. Katz received tax free disability
benefits in excess of $6,500 per month. (Stip. Facts ¶ 3.)
3

5.

Nothing other than reading documents, computer screens

or books without aids would cause accommodative spasms. (Id.
¶ 11.) Mr. Katz had been advised by doctors for years to look
away from close reading every fifteen minutes. If he did so, he
did not suffer from spasms. Mr. Katz testified, however, that he
would get engrossed in his work and forget to look away, causing
the spasms. (Ex. 122 at 96:12-97:8.)
6.

In addition to his accommodative spasms, Mr. Katz was

very farsighted (Ex. 12 at 1) and had a severe astigmatism.
7.

Starting in about 1990, Mr. Katz set up a system in his

home office which included a magnified computer screen that he
could use from approximately five feet away. (Stip. Facts ¶ 12.)
His home office also contained a high resolution video camera
mounted in the ceiling above his desk that transmitted a
magnified image to a large television screen about six feet away.
(Id.) This allowed the Mr. Katz to read documents placed on his
desk without eye strain. (Id.) Mr. Katz testified at trial,
however, that documents with very small print could not be read
by the camera. For such documents, Mr. Katz had to remove the
pages from their binding and scan them so that he could read them
on his computer.
II.

Mr. Katz’s Hiring by IRS & First Five Months of Work
A.

Hiring

8.

In July 2006, Mr. Katz was hired by the IRS as a

probationary revenue agent. (Stip. Facts ¶ 5.) He was based in
Austin, Texas but was supervised by the Houston, Texas office.
4

(Id.) He served as the sole financial products (“FP”) specialist
in Austin, serving non-specialists in that office. (Id. ¶ 6.)
9.

The IRS’s FP group consists of specialist revenue

agents who work on specific sections of the tax code. If an IRS
case requires FP expertise, an FP specialist is brought onto the
case as a consultant. On any given case, the FP specialist
answers to the “team coordinator,” who is a generalist revenue
agent. The FP specialist writes an FP report, which forms an
important part of the case file and will be heavily relied on by
the IRS attorney if the case goes to litigation. The team
coordinator is not the FP specialist’s supervisor, however; FP
specialists are supervised by FP managers. Mr. Katz’s supervisor
was FP Team Manager Earnest Griffin, whose duty station was in
Houston, Texas. (Id. ¶ 7.)
10.

Mr. Katz was interviewed for the job by Mr. Griffin and

by Jimmie Moren, a generalist revenue agent manager who worked in
the Austin office. (Id. ¶ 13.) After the interview, Mr. Griffin
recommended to the FP territorial manager, Sharon Wong, that the
IRS hire Mr. Katz. Ms. Wong testified at trial that she was
unenthusiastic when she read Mr. Katz’s resume, but that she
trusted Mr. Griffin’s judgment and approved the hire. Ms. Wong
was based in San Jose, California at the time, and never met
Mr. Katz before or during his hiring or employment by the IRS.
(See Ex. 7 at 26:19-23.)
11.

During his interview, Mr. Katz told Mr. Griffin and

Mr. Moren that he had been on disability for accommodative spasms
5

since 1987. (Stip. Facts ¶ 13.) Because Mr. Katz had not had a
significant problem with spasms for several years and was not
sure he would have problems at the IRS, he did not inform
Mr. Griffin or Mr. Moren of the special equipment he used to read
documents, or tell them that he would need any accommodation for
his vision problems. (Id.) He did, however, fill out an OPM Form
256, Self Identification of Handicap, informing the IRS of his
possible future need for special equipment. (Id.; see Ex 11.)
B.

Classroom Period & Informal Training

12.

New IRS employees enter a probationary period of

approximately one year. Probationary employees spend most of
their first few months in classroom training. Mr. Katz was
clearly an enthusiastic trainee; his classmates voted him various
awards, such as “most likely to sleep with the [tax] Code under
their pillow” and “most likely to Question the Taxpayer to
Death.” (Ex. 10.) During this time, he did not have to do much
close reading and therefore did not suffer any significant
accommodative spasms. (Stip. Facts ¶ 14.)
13.

After Mr. Katz’s classroom period ended, Mr. Griffin

arranged for him to receive informal training through Terry
Eldred and Frances Mayberry in the Houston office, as well as
Jimmie Moren in the Austin office. The parties dispute how much
of that training Mr. Katz received.
14.

For their probationary year, new employees are assigned

On-the-Job Instructors (“OJI”). Mr. Katz’s first OJI was Terry
Eldred, a senior FP specialist based in Houston. (Stip. Facts
6

¶¶ 8-9.) While Mr. Eldred was Mr. Katz’s OJI, Mr. Katz received a
fully successful evaluation. (Id. ¶ 8.) Mr. Griffin testified at
trial that Mr. Katz’s technical knowledge was helpful and that he
performed well during this period, when he was still mostly in
classroom training and did not have to juggle multiple cases.
15.

Mr. Eldred retired suddenly in December 2006, and

Mr. Katz was assigned a new OJI, Frances Mayberry, who like
Mr. Eldred was a senior FP specialist based in Houston. (Id.
¶¶ 8-9.) Ms. Mayberry was Mr. Katz’s OJI from January 2007 until
he was fired in June 2007. (Id. ¶ 8.) During that period,
Mr. Katz received only failing evaluations. (Id.)
C.

Accommodations for Mr. Katz’s Disability

16.

Once Mr. Katz left the classroom phase of his

probationary year, he had to do more close reading and began to
have more significant problems with his vision. In the fall of
2006, Mr. Eldred visited Mr. Katz in Austin to train him on a
software program, and saw that Mr. Katz was having considerable
difficulty seeing the computer screen. (Id. ¶ 15.) In Mr. Katz’s
presence, Mr. Eldred called Mr. Griffin and informed him that
Mr. Katz’s vision problems interfered with his ability to work.
(Id.)
17.

Mr. Griffin called Ms. Wong, who looked into the

accommodations process and gave Mr. Griffin the name of his local
accommodations specialist. Mr. Griffin contacted that person,
then called Mr. Katz to tell him about the IRS’s reasonable

7

accommodation process, and gave him the appropriate forms to fill
out. (Id.)
18.

On November 17, 2006, Mr. Katz submitted a Reasonable

Accommodation Request to the IRS. (Id. ¶

16; Ex. 101.) The

request described his problem as “[p]oor vision which cannot be
fully corrected [makes] it difficult for me to see and slows my
performance.” (Ex. 101.) The IRS form required Mr. Katz’s doctor,
Thomas Henderson, to explain how Mr. Katz’s condition affected
his major life activities. Dr. Henderson responded “headaches
after close work.” (Id.)3/
19.

Mr. Katz’s Reasonable Accommodation Request sought “a

large auxiliary screen; and an evaluation of what solutions might
be available to me.” (Id.) Mr. Katz initially planned to ask for
a scanner as well as a large screen, and filled out a Reasonable
Accommodation Request asking for both. (Ex. 1.) Mr. Griffin
suggested that he request only the large screen, and Mr. Katz
revised the Request to reflect that. (See id.; Ex. 9 at
210:11-18.)4/ An IRS internal website lists various types of

3/

Dr. Henderson’s affidavit dated December 7, 2012 lists
many other serious problems caused by accommodative spasms.
(Ex. 12.) The Court does not doubt that Mr. Katz suffered from
these problems. The part of the Reasonable Accommodation Request
that Dr. Henderson filled out, however, lists only “headaches”
(Ex. 101.)
4/

Mr. Griffin in his trial testimony denied advising
Mr. Katz to change his request, but the IRS offered no other
explanation for the two versions of the form. On the other hand,
Mr. Katz offered his prior consistent sworn testimony during his
EEOC hearing (see Ex. 9 at 210:11-18), albeit an after-the-fact
self-serving statement.
8

equipment available for disabled employees, including a
large-screen monitor. Mr. Griffin testified at trial that the
cost of such a monitor would not be a hardship for the IRS.
20.

In response to Mr. Katz’s request, the IRS reasonable

accommodation liaison sent Mr. Griffin a document titled “Denial
of Reasonable Accommodation Request,” (Ex. 103) which he
forwarded to Mr. Katz. In support of the denial, a medical
consultant retained by the IRS, Dr. Sylvie Cohen, wrote that the
large screen was unnecessary and that Mr. Katz should resolve his
problems ergonomically by looking away from the monitor every
15 minutes and positioning the screen 12 to 16 inches away from
himself. (See Ex. 102.) Dr. Cohen describes herself as an
“occupational medicine consultant” (see id.) and there is no
indication in the record that she has any specialty in
ophthalmology.
21.

Mr. Katz learned of this opinion in December 2006 or

early January 2007. (Stip. Facts ¶ 18.) Mr. Katz testified at
trial that Dr. Cohen’s first piece of advice was the same advice
he had received from his own doctors for years, but that the
second piece of advice was wrong. According to Dr. Henderson’s
affidavit, Dr. Cohen did not contact Dr. Henderson and erred in
assuming that Mr. Katz was nearsighted. (Ex. 12.) Nonetheless,
Mr. Katz never told anyone at the IRS that he believed
Dr. Cohen’s opinion to be unreasonable or unworkable. (Stip.
Facts ¶ 21.)

9

22.

Mr. Griffin testified at trial that he had no way of

evaluating Dr. Cohen’s opinion, and Mr. Katz testified that he
did not tell Mr. Griffin (or anyone else at the IRS) that
Dr. Cohen’s opinion was wrong. Mr. Griffin knew, however, that
Mr. Katz had a home office set up with equipment that was
designed to work with his visual disability. Under IRS policy,
probationary employees are not allowed to work from home.
Mr. Griffin nonetheless secured Ms. Wong’s permission and allowed
Mr. Katz to work from home.
23.

Unfortunately, Mr. Katz was unable to connect his IRS

laptop to his home computer monitor. When he contacted an IRS
computer technician, the computer technician told him that IRS
policy did not allow employees to connect IRS computers to home
equipment. (See Ex. 18 at 10.8.1.5.2.5(3)-(4).) Mr. Katz told
Mr. Griffin what the computer specialist had said. In his trial
testimony, Mr. Griffin recalled Mr. Katz’s worry that he had
gotten Mr. Griffin into trouble. Mr. Griffin told Mr. Katz that
he was allowed to connect the IRS laptop to a home monitor, and
that the rules only prohibited connecting home devices that could
transmit data - such as a CPU - to the IRS systems. Mr. Griffin
testified that he was not aware that Mr. Katz was never able to
connect the IRS laptop to his home monitor; their conversation
was about the IRS’s policies, not about Mr. Katz’s equipment
problems. Mr. Griffin also testified that he has been able to
connect his own personal monitor to an IRS computer.

10

24.

It is undisputed that Mr. Griffin never saw Mr. Katz’s

home office; it does not appear that Mr. Katz ever invited
Mr. Griffin to see his home office, and both Mr. Griffin and
Ms. Mayberry testified at trial that they believed it was office
policy that managers should not visit employees who were working
from home.
25.

Since Mr. Katz could not connect his IRS laptop to his

home monitor, he continued to use the laptop screen at home when
he needed to work within the IRS system. When Mr. Katz remembered
to look away from the screen every 15 minutes or so, he generally
succeeded in avoiding accommodative spasms. (Stip. Facts ¶ 19.)
He sometimes forgot to look away, however, because he became
engrossed in his work. (Id.) The combination of having to take
breaks every 15 minutes or so and of recovering from spasms when
he forgot to look away required him to put in more than eight
hours a day to complete eight hours of productive time during the
day. (Id.)
26.

The “Denial of Reasonable Accommodation Request” lays

out specific steps for an employee to follow if he wants the IRS
to reconsider its decision or appeal. (Ex. 103.) Mr. Katz did not
follow any of these steps.
27.

On February 16, 2007, Mr. Katz sent an e-mail to

co-workers explaining the accommodations and his surgeries.
(Ex. 105.) He noted that having to take frequent breaks required
him to work longer hours. (Id.)

11

28.

At some point, Mr. Griffin noticed that Mr. Katz had

billed time worked on a Sunday. Mr. Griffin contacted Mr. Katz
and told him that he could not bill more than eight hours of work
per day without pre-clearing the time with a supervisor. It is
undisputed that Mr. Katz sent Mr. Griffin e-mails outside of
normal work hours. Mr. Griffin’s testimony that he did not infer
from these e-mails that Mr. Katz was working long hours was not
credible.5/ It was, however, entirely consistent with
Mr. Griffin’s further testimony that new FP specialists work long
hours because they are trying to learn, and that even experienced
FP specialists often work twelve- to fourteen-hour days.
Mr. Griffin’s testimony that he did not infer that Mr. Katz was
working long hours because of his disability is therefore
credible. Mr. Katz testified at trial that he never asked to have
his workload reduced for any reason, let alone because of his
visual problems.
D.

Early Political & Religious Incidents

29.

Early in his classroom training period, Mr. Katz had a

conversation with Mr. Griffin about Judaism. Mr. Griffin teaches
a Sunday school class, and asked Mr. Katz to send him examples of
the Jewish calendar, so that he could teach his class about the
Jewish roots of Christianity.
30.

On September 11, 2006, FP specialist Gerald DeLuca made

statements that led Mr. Katz to believe that he was being

5/

In general, however, the Court found Mr. Griffin to be a
very credible witness.
12

targeted for his political beliefs - in particular, for declining
to condemn President Bush in connection with the Iraq war. (Stip.
Facts ¶ 24.) Mr. Katz testified during his deposition that he
felt the conversation with Mr. DeLuca was a “vetting” interview
on the part of Mr. DeLuca, Mr. Griffin, and Ms. Mayberry, to
discover his political allegiances. (Ex. 122 at 91:25-93:11.) At
trial, Mr. Katz testified that over the succeeding months after
the conversation with Mr. DeLuca, Mr. Katz felt that
Mr. Griffin’s attitude towards him changed and became less
friendly and more distant.
31.

In early January 2007, Ms. Mayberry visited Mr. Katz in

Austin. He picked her up from the airport wearing a baseball cap.
He testified at trial that when he removed his baseball cap and
Ms. Mayberry saw his yarmulke, she looked shocked and
ill-at-ease.
III. Post-Classroom Work History
A.

Work Study Assignment

32.

Mr. Katz completed his “Phase II” classroom training in

December 2006. The training involved a written test. Mr. Katz
received a high score on the test, but missed some questions.
Ms. Mayberry therefore created a “work study” program, dividing
the missed questions into four sets, with four deadlines spaced
over the coming months to turn in a short summary of the correct
answers. (See Ex. 126.) Ms. Mayberry testified at trial that she
sent Mr. Katz reminder e-mails before each deadline. She
testified that she expected Mr. Katz to spend about 15 or
13

20 minutes per question, for a total of one and a half to three
hours. She likewise required the other two FP trainees to explain
the questions they had missed; and they responded promptly within
her deadlines.
33.

On March 21, 2007, Ms. Mayberry and Mr. Griffin

exchanged e-mails regarding Mr. Katz’s progress in meeting
training deadlines. (Ex. 128.) Mr. Katz had at that point missed
all four deadlines. (Id.) Ms. Mayberry then set him a final
deadline of May 30, 2007, to turn in the work study. (See
Ex. 131.) Mr. Katz met that deadline. (See id.)
34.

Mr. Katz testified at deposition that he felt that the

work study assignment was “a punishment” given because
Ms. Mayberry didn’t like him. (Ex. 122 at 122:4-11.) He described
the assignment as “inane” and “the ego mania of a crazy woman.”
(Id. at 102:23; 140:13-15.) He admitted that he “sloughed it off”
in favor of other work that he believed was more important. (Id.
at 102:20-103:8.) He testified at deposition that, while he
“never missed a real [deadline],” “[t]hey may have sent me
e-mails that I didn’t respond to saying that they want it done by
a certain time.” (Id. at 120:15-20.) He also testified in his
deposition that he did not have time to do the assignment because
he was working such long hours on his cases. (See id. at 122:22123:13.) He never, however, told Ms. Mayberry that his visual
disability was interfering with his work.
35.

Mr. Griffin did not infer from Mr. Katz’s missed

deadlines that the accommodation for his visual disability was
14

not working. Mr. Griffin testified that there can be any number
of different reasons for an employee to fail to meet deadlines.
He testified that being able to juggle an inventory of several
cases with multiple issues is challenging and that he expected
all new FP employees to encounter some problems with time
management.
B.

Bridge Case

36.

Mr. Griffin testified at trial that he assigned

Mr. Katz cases that would use Mr. Katz’s experience in the
securities industry. He repeatedly noted Mr. Katz’s passion for
the technical aspects of FP work, and for complex securities
cases in particular. Mr. Griffin testified that he assigned
Mr. Katz fewer cases than the other two new employees training in
FP at that time because Mr. Katz was new to the IRS; while the
other two trainees had transferred to FP from other IRS
divisions. Mr. Katz was given five or six open cases at any one
time; while the other trainees were given eight to ten.
37.

Mr. Katz’s largest case was the “Bridge Case.”6/ The

Bridge Case was originally assigned to Mr. DeLuca (see Ex. 21),
but was reassigned to Mr. Katz in late 2006 (see Ex. 2 at 126:26). The case had a short deadline, which was originally set for
December 2006, but was later extended to July 2007.7/ The case

6/

All IRS cases were referred to at trial using fictitious
names, to protect taxpayers’ confidential information.
7/

Mr. Griffin and Ms. Mayberry explained at trial that the
IRS normally has a fixed statutory deadline to audit a tax
return. The taxpayer may - and in this case did - agree to extend
15

involved a complex transaction, known as a binary option,
arranged by a securities broker between an American company and a
related Irish company, which the IRS believed to be a tax
shelter. (Its finer details, although discussed extensively at
trial, are not relevant to Mr. Katz’s claims.)
38.

Mr. Katz had discussed his theory of the Bridge Case

with Mr. Eldred as early as November 2006. (Ex. 129.) Mr. Katz
believed that the transaction in the Bridge Case was effectively
a “proposition bet,” a kind of Las Vegas bet on a contest set up
between one party and a counter party or parties where a third
party holds the money and acts as judge. (Stip. Facts ¶ 25.) He
analogized the transaction to a rigged roulette table. (Ex. 129.)
Mr. Eldred disagreed, stating that the transaction was not a
wager. (Id.)
39.

Mr. Katz discussed his theory of the case with

Ms. Mayberry after she became his OJI in January 2007. Mr. Katz
wanted to use IRC Section 165(d) disallowing losses from wagers
except to the extent of winnings in the current year, in addition
to making a sham transaction argument under IRC Section 165(a).
(Stip. Facts ¶ 25.) Ms. Mayberry disagreed. She testified at
length at trial that she felt that Mr. Katz’s use of betting and
gambling terminology undermined the IRS’s position in the case by
implying that the taxpayer was taking on risk in the transaction,
when in fact the transaction was a tax shelter with a fixed

the statutory deadline.
16

result and no risk. She believed that Mr. Katz should apply IRC
Section 1092 to the case.
40.

Mr. Katz came to believe that Ms. Mayberry was too

rigid and did not have the mathematical skills and legal
knowledge to understand why IRC Section 165(d) should apply to
the case. (Id.) Ms. Mayberry at some point told Mr. Griffin about
the dispute. Mr. Griffin testified at trial that at that time he
considered it a healthy discussion and saw no need to interfere.
41.

Carlton Anderson was the team coordinator on the Bridge

Case. (Id. ¶ 6; see Ex. 2 at 119:22-120:1.) Mr. Anderson
testified during the EEOC hearing on Mr. Katz’s claim that he had
agreed with Mr. Katz on the bet option issue and felt that
Mr. Katz’s work on the Bridge Case was good. (Ex. 2 at 120:7-20;
121:16-24.) Mr. Anderson was not an FP specialist, however.
Mr. Moren was the team manager on the case and disagreed with
Mr. Katz’s analysis.
42.

On February 21, 2007, Mr. Moren called Mr. Griffin and

requested a conference call regarding the Bridge Case. (See
Ex. 106.)8/ Mr. Griffin called Mr. Katz and scheduled a
conference call for 9:00 a.m. (Id.) Mr. Katz was reluctant to

8/

In their Joint Stipulation of Fact, the parties stated
that Ms. Mayberry initiated this phone conference. (Stip. Facts
¶ 25.) Ms. Mayberry and Mr. Griffin testified at trial, however,
that Mr. Moren initiated the phone call. Their testimony is
corroborated by Mr. Griffin’s contemporaneous memorandum
regarding the call. (Ex. 106.) The Court finds that Mr. Moren
initiated the phone call.
17

join the call because of a scheduling conflict with work on
another case. Mr. Griffin ordered Mr. Katz to be on the call.
43.

During the conference call, in front of Mr. Moren and

Mr. Anderson, Ms. Mayberry and Mr. Griffin told Mr. Katz not to
claim that the taxpayer was using a gambling strategy under
165(d). (Stip. Facts ¶ 26.) Mr. Moren at one point said “We will
be laughed at.” (Id.) Mr. Katz replied “You are the boss. If you
want me to fly with one wing, I’ll fly with one wing.” (Id.)
Mr. Katz believed at the time that Ms. Mayberry had set up the
conference call in order to undermine him.9/
44.

Later that same day, Mr. Griffin e-mailed Mr. Katz a

written summary of his job performance on the Bridge Case. (Id.
¶ 27; see Ex. 106.) Mr. Griffin told Mr. Katz in that summary
that his “attitude and approach to the needs of the customer10/ in
this case [was] unacceptable.” (Ex. 106.) Mr. Griffin informed
Mr. Katz that he was failing several critical elements of his
job, including juggling priorities and case matters. (Id.)
Ms. Wong, the FP territorial manager, testified at trial that she
saw this document shortly after Mr. Griffin wrote it.
45.

Two days later, Mr. Katz replied to the e-mail, copying

Mr. Moren and defending his performance on the Bridge Case.
(Ex. 125 at 2-3.) In the e-mail, he stated that he was “willing

9/

Mr. Katz testified at trial that he no longer believes

this.
10/

FP specialists often refer to the team manager as the
“customer.”
18

to defer on the issue to your practical experience and wisdom.”
(Id. at 2.) Mr. Griffin responded that he, not Mr. Moren, was
Mr. Katz’s supervisor, and that if Mr. Katz had issues with his
performance review, he should not involve Mr. Moren. (Id.)
Mr. Katz replied asking Mr. Griffin to reconsider his performance
review. (Id. at 1-2.) He stated that at the time of the February
21 conference call he believed that the use of the gambling
terminology was still up for discussion. (Id. at 2.) He also
noted, however, that on February 23 he had told Mr. Moren over
lunch that he “had given the matter some thought and realized
that the wagering approach was novel and there might be practical
reasons for not raising it.” (Id.) Mr. Katz described Mr. Moren
as “satisfied with my willingness to bow to more experienced
judgment.” (Id.) Mr. Griffin declined to reconsider his February
21 review, but stated that he would attach Katz’s response to the
write-up and that he would continue to monitor Mr. Katz’s
performance during his probationary period. (Id. at 1.)
46.

At some point after the February 21 conference call,

Mr. Katz and Mr. Griffin again discussed using “bet” terminology
in the Bridge Case FP report. Mr. Katz pointed to a page from The
Handbook of Exotic Options (Israel Nelken, ed.) in which “bet
option” is given as a synonym for “binary option.” (See Ex. 19.)
Mr. Griffin told Mr. Katz that he could footnote this point.
There was apparently a miscommunication; Mr. Katz testified at
trial that he believed that Mr. Griffin had told him he could use
the term “bet” as long as he footnoted it. Similarly, at some
19

point Mr. Katz showed Mr. Griffin a schedule he had prepared for
the Bridge Case (Ex. 24) and Mr. Griffin told him it was good
work. The schedule uses the word “bet.” (See id.) Mr. Katz again
took this as a sanctioning of his use of the word. Mr. Griffin
testified at trial, however, that he in no way meant to sanction
the use of that word, except in a footnote. Regardless,
Ms. Mayberry testified that Mr. Katz never told her that
Mr. Griffin had approved the use of the term.
47.

On March 5, 2007, Ms. Mayberry sent Mr. Katz an e-mail

regarding his use in the draft FP report of Mr. Anderson’s work
product. (Ex. 107.) Ms. Mayberry testified at trial that this was
another significant problem with Mr. Katz’s work on that report.
Both she and Mr. Griffin testified that FP specialists were
advised not to use the work of agents who were not FP
specialists, because non-specialists’ analysis was likely to be
incorrect. Ms. Mayberry also testified that she wanted Mr. Katz
to draft his own report because he was a trainee and needed to
learn how to do it.
48.

On March 14, 2009, Ms. Mayberry sent Mr. Katz an e-mail

regarding his use of Mr. Anderson’s draft report and the bet
option issue. (Ex. 109.)
49.

On March 19, 2007, Mr. Griffin met with Mr. Katz to go

over Mr. Griffin’s write-up of the February 21 conference call.
(See Ex. 110.) He memorialized their discussion in a memorandum.
(Id.) Mr. Griffin told Mr. Katz that he had to consider the team
manager’s comfort level with terms he used in the FP report.
20

(Id.) He stated that an FP specialist must be able to juggle
priorities. (Id.) He told Mr. Katz that he had not properly
documented all contacts he had on his cases, and showed him how
to start doing so. (Id.) Mr. Griffin also told Mr. Katz that he
could not make disparaging remarks about coworkers in his
e-mails. (Id.) Mr. Katz asked whether he could have a chance to
improve his performance; Mr. Griffin responded that there was
time to improve his performance and that Mr. Griffin would
continue to monitor it. (Id.) Mr. Griffin suggested that Mr. Katz
take online time management and risk management courses offered
by the IRS. (Id.) Mr. Katz never took those courses.
50.

On March 19, 2007, Ms. Mayberry and Mr. Katz talked

over the phone regarding aspects of his performance. (Stip. Facts
¶ 31.) The parties stipulated that “Ms. Mayberry said something
along the lines of asking if she had to throw a rock at
Mr. Katz’s head to get his attention.” (Id.) The two continued
the discussion by e-mail that same date. (Id.; see Ex. 111.) In
the e-mail exchange, Mr. Katz noted that he did not feel he had
sufficient training on how to write FP reports. (Ex. 111.)
51.

On March 23, 2007, Ms. Mayberry and Mr. Katz exchanged

e-mails concerning Mr. Katz’s draft report. (Ex. 113.)
Ms. Mayberry stated “To say I am annoyed with you is an
understatement . . . . You have ignored all of my
recommendations.” (Id. at 2.) Mr. Katz responded “I have not
ignored you and I have reviewed the code sections and regulation
to which you have referred me . . . . So far I do not see the
21

argument you want me to make.” (Id. at 1.) He repeatedly noted
that the report had been drafted by Mr. Anderson. (Id.)
Ms. Mayberry reported to Mr. Griffin that their dispute was
continuing; Mr. Griffin reported that fact to Ms. Wong.
52.

On March 27 or 28, 2007, Ms. Mayberry and Mr. Katz had

a telephone call regarding Mr. Katz’s latest draft of the Bridge
Case FP report. Ms. Mayberry testified at trial that Mr. Katz
became very angry and was screaming at her, saying that he knew
more tax law than she did and that he ought to be her OJI.11/
Mr. DeLuca, who was in the same room as Mr. Katz while he was on
the call, described Mr. Katz in an affidavit as “shaking
violently and spitting into the phone because he was in such a
rage.” (Ex. 6A at 4.) Ms. Mayberry described this call at trial
as her worst interaction with Mr. Katz. She repeatedly testified
at trial that Mr. Katz was very nice to her as long as they were
not discussing the Bridge Case, and compared the abrupt changes
in his manner to the story of Dr. Jekyll and Mr. Hyde.
53.

During his deposition Mr. Katz repeatedly described

Ms. Mayberry as “stupid.” (Ex. 122 at 107:10-108:3; 155:8-12.) He
also described her as “obstinate,” “rigid,” and “somewhat senile”
and stated that “there was something wrong with her” and that

11/

Ms. Mayberry’s memory is corroborated by Mr. Katz’s
deposition testimony, in which he described her as “a woman [who]
worked for the IRS for 30 years or something like that, and she
didn’t even understand the very basics of stuff that I was taught
in . . . the very first course I took.” (Ex. 122 at 155:1-4.)
When asked whether he felt he had things to teach Ms. Mayberry,
he answered “Oh, absolutely. I mean, I was an expert in my
field.” (Id. at 168:15-21.)
22

“[s]he was not functioning right.” (Id. at 155:14-19; 156:19-20;
167:15-22.) He also testified that he believed she was an
anti-Semite. (Id. at 106:6-18.) During trial, Mr. Katz testified
that he now regretted some of his word choices, but that they
were likely an accurate representation of his feelings in 2007.
54.

Ms. Mayberry reported the March 27 phone call to

Mr. Griffin, who held a conference call with both Ms. Mayberry
and Mr. Katz to discuss the issue.
55.

On April 27, 2007, Mr. Katz attended a meeting with an

executive officer of the taxpayer company on the Bridge Case.
Ms. Mayberry testified at trial that he did well at the meeting
and asked professional and helpful questions.
56.

The final version of the FP report that Mr. Katz

submitted still contained frequent references to bets and a
lengthy analogy to a roulette wheel. (See Ex. 27 at 25-27.) This
version of the FP report contains a discussion of section 1092,
the section which Ms. Mayberry wanted to apply, but the
discussion consists largely of block quotations from the code
section. Mr. Katz testified at trial that the discussion of
section 1092 was not good work because his heart was not in it.
Ms. Mayberry testified at trial that Mr. Katz’s presentation and
analysis of the facts was excellent, but that his law and
argument section was seriously flawed. She also noted that the
final version of the report continued to use Mr. Anderson’s
layout.

23

57.

Ms. Mayberry and Mr. Griffin testified at trial that

the Bridge Case closed in July 2007 without an FP report, because
Ms. Mayberry was unable to rewrite the report to an appropriate
standard before the deadline.
C.

Work on Other Cases & Evaluations from Other Co-Workers

58.

On March 13, 2007, Mr. Livingston, who was acting FP

team manager while Mr. Griffin was on detail, sent Mr. Katz a
performance review. (Stip. Facts ¶ 29; Ex 108.) Mr. Katz
responded by e-mail on March 15, 2007. (Ex. 108.)
Mr. Livingston’s evaluation was negative because Mr. Katz had
failed to timely complete a spreadsheet on a case known as
“SILOs.” (Id.) Mr. Griffin testified at trial that it was later
determined that Mr. Katz had been given improper instructions on
the spreadsheet, which was far more complicated than anyone had
realized, and that Mr. Griffin therefore did not consider
Mr. Livingston’s negative review when he decided to recommend
firing Mr. Katz. Nonetheless, Mr. Livingston’s review was one of
the documents considered by Ms. Wong and listed in Mr. Katz’s
termination memorandum. (Ex. 119.)
59.

Three of Mr. Katz’s former co-workers, Robert

Northcutt, Robert Davis, and Michael FitzGerald, testified during
Mr. Katz’s EEOC proceeding that they had never observed Mr. Katz
being hostile, argumentative, loud, or angry. (See Ex. 3 at
101:18-24; Ex. 4 at 110:23-25; Ex. 5 at 136:25-137:4.) Mr. Davis,
an IRS supervisor on whose case Mr. Katz consulted, also
testified at the EEOC proceeding that Mr. Katz’s work on his case
24

and his discussion of another technical matter was helpful and on
point. (Ex. 4 at 112:15-18; 114:7-15.) Mr. FitzGerald, an IRS
agent in Austin who worked on three different cases with
Mr. Katz, testified at the EEOC proceeding that Mr. Katz’s
workpapers on his cases were good. (Ex. 5 at 142:24-144:12.) The
Court notes that these witnesses were not FP specialists and were
not involved in reviewing or criticizing Mr. Katz’s work.
D.

Spring 2007 Medical Procedures

60.

At some time in late 2006 or early 2007, Mr. Katz went

to see Dr. Mitchel Wong in Austin about his vision problems.
(Stip. Facts ¶ 21; see Ex. 13.) Dr. Wong informed Mr. Katz that
his accommodative spasms could be cured by cataract surgery and
that his corrected vision because of cataracts was less than
20/50. (Stip. Facts ¶ 21.)
61.

Mr. Katz underwent cataract surgery on one eye on

February 7, 2007, and in the other eye on March 7, 2007.
(Ex. 13.) He took three days off of work for each surgery. (Stip.
Facts ¶ 21.) His last episode of accommodative spasm was March 8,
2007. (Id. ¶ 23.)
62.

Nonetheless, Mr. Katz’s corrected vision was not very

good because the implants were not able to correct for Mr. Katz’s
undersized eyes and he remained farsighted making it difficult
for him to work at close range until he was able to obtain
corrective glasses, a process requiring time for his vision to
stabilize to get a prescription for the glasses. (Id.) He also
still had a severe astigmatism. Mr. Katz testified at trial that
25

he had to get new lenses for his glasses up to once every two
weeks during this period. Nonetheless, he was able to sharply
reduce the amount of extra time he had to put in to complete his
work. (Id.) On March 20, 2007 in an e-mail to Mr. DeLuca,
Mr. Katz described his frequently-changing prescription as “not
as bad as it sounds. But, it is a nuisance.” (Ex. 127.)
63.

Mr. Katz underwent “Yag” laser surgery on April 12 and

19, 2007. (Ex. 13.)12/ Finally, he underwent Lasik surgery on both
eyes on June 14, 2007 (id.), which improved his astigmatism
problem.
IV.

Formal Evaluations and Termination
64.

At some point during the spring, Ms. Wong, who had seen

Mr. Griffin’s February 21 write-up and Mr. Livingston’s March 13
review of Mr. Katz, asked Mr. Griffin to create an improvement
plan for Mr. Katz, which would set a baseline and a 60-day window
for improvement. Ms. Mayberry drafted an improvement plan
(Ex. 114), which Ms. Wong and Mr. Griffin reviewed.
65.

On April 5, 2007, Ms. Mayberry personally delivered the

improvement plan to Mr. Katz, and the two discussed it in person.
(Stip. Facts ¶ 34; see Ex. 115.) The plan noted that Mr. Katz had
“exhibited a hostile and argumentative attitude towards any and
all recommendations and suggestions” and told him that he must
work on adopting a calmer attitude and “refrain from loud, angry

12/

Mr. Katz noted in his closing argument that “Yag”
surgery treats clouding of the lens that sometimes occurs after
cataract surgery. A laser is used to cut a hole in the clouded
lens to allow light to pass through.
26

outburst.” (Ex. 114.) Mr. Katz testified at trial that he
rejected the terms “hostile,” “loud,” and “aggressive” but that
he could see someone describing him as “arrogant”; he admitted
that he shows his irritation. He testified that he understood at
the time that if he did not follow the improvement plan he might
be fired.
66.

Ms. Mayberry testified at trial that Mr. Katz was

visibly upset at the April 5 meeting, but was not abusive. She
told Mr. Katz that his knowledge of securities products was
helpful to the FP program and that almost all of his performance
problems could be corrected if he developed a better attitude.
She felt they made progress at the meeting. Mr. Katz testified at
trial that when he drove Ms. Mayberry to the airport after this
visit, she stated that the United States was fighting the war in
Iraq because of Israel. (Ex. 34 at 3.)13/ Ms. Mayberry denies
making this statement.
67.

On April 9, 2007, Ms. Mayberry summarized her work with

Mr. Katz in a memo to Mr. Griffin. (Stip. Facts ¶ 35; Ex. 115.)
She noted that they still disagreed over the appropriate
terminology to use in the Bridge Case, but that Mr. Katz had
agreed to work with her. (Ex. 115.) Ms. Mayberry noted in this
evaluation that Mr. Katz had told her he was working 60 hours a
week. (Id.) She testified at trial that Mr. Katz had told her

13/

Exhibit 34 consists of a statement in question-andanswer form which Mr. Katz read into the record as his testimony
on direct.
27

before that he worked extra hours, but had never put such a large
number on it before. She testified that he did not say exactly
what he was working on, but that her impression was that he was
doing outside research on technical issues. She testified that
Mr. Katz did not mention his vision problems and did not mention
any problems connecting his home monitor. Ms. Mayberry told
Mr. Griffin in her write-up that she hoped to revise her
evaluation in the future as Mr. Katz made progress. (Id.) She
stated that Mr. Katz was still adjusting to IRS culture and
learning his job. (Id.) She stated that the FP program would
“reap big benefits” from Mr. Katz’s technical expertise in
securities. (Id.)
68.

On April 11, 2007, Mr. Katz sent a fax to Mr. Griffin,

in which he described the statements in the April 5 improvement
plan as “untrue, abusive, outrageous, unfair, humiliating, a
tirade, lacking in examples, character assassination, and not
otherwise helpful.” (Ex. 30.)
69.

Mr. Griffin testified at trial that after the April

improvement plan had been delivered, he consciously took a step
back, to see whether Ms. Mayberry would be able to work with
Mr. Katz to follow the improvement plan. Ms. Mayberry testified
at trial that she had believed after the April 5 meeting that
their dispute over the “bet” terminology in the Bridge Case FP
report was settled, but that nothing changed in Mr. Katz’s
subsequent drafts of the report. She did testify, however, that
his manner improved and that he was less hostile towards her.
28

70.

In early June 2007, at the end of the 60-day

improvement period, Mr. Griffin conducted a workload review of
Mr. Katz’s cases other than the Bridge Case and the SILO case. He
found that Mr. Katz’s workpapers were largely inadequate or
missing. Mr. Griffin testified at trial that he felt that while
Mr. Katz was passionate about the technical side of FP work, he
was not interested in the administrative aspects of the job and
considered them bureaucratic. Mr. Griffin drafted a written
review of Mr. Katz’s workpapers (Ex. 116), which he showed to
Ms. Wong. Ms. Wong testified at trial that after she saw the
review she told Mr. Griffin to contact an IRS labor relations
specialist to discuss firing Mr. Katz. Mr. Griffin delivered his
written workload review to Mr. Katz on June 8, 2007.14/
71.

On June 11, 2007, Ms. Mayberry wrote an evaluation of

Mr. Katz’s work, focused mainly on the Bridge Case. (Stip. Facts
¶ 37; Ex. 118.) She noted that Mr. Katz had missed his original
work study deadlines; had stubbornly continued to use the “bet”
terminology and argument in the Bridge Case report; and had
turned in inadequate workpapers. (Ex. 118.) She also noted,
however, that Mr. Katz’s attitude had improved somewhat since
their April 5, 2007 meeting, and listed recommendations for his
future work. (Id. at 2-3.) Ms. Mayberry testified at trial that
she knew at this point that Mr. Katz might get fired, but that

14/

The parties’ joint stipulated facts state that
Ms. Mayberry conducted this review (Stip. Facts ¶ 36), but all
testimony at trial indicated that Mr. Griffin conducted it. The
Court finds that Mr. Griffin conducted the review.
29

she also believed there was a possibility that he would continue
at the IRS.
72.

Mr. Katz drafted a written response to Mr. Griffin’s

June 8 review, received by Mr. Griffin on June 19, 2007.
(Ex. 117.) Evidently, sometime before June 19, Mr. Griffin had
told Mr. Katz that he was going to be fired. (Id. at 1.) In
Mr. Katz’s response, he attributed all of his problems in 2007 to
Ms. Mayberry’s supervision. (Id.) He stated that Ms. Mayberry
bore “some deep seated hatred for me that I cannot fathom or
understand” and that she had “manipulated and schemed to get me
fired.” (Id. at 4.) He dated this bias from when Ms. Mayberry saw
his yarmulke. (Id. at 5.) He stated that his work on the Bridge
Case had been “very professional and exemplary” and argued that
the fact that it had not been included in the review was evidence
of bias. (Id. at 6.) Mr. Katz noted that his visual impairment
and eye surgeries had caused him to work extra hours and
described the accommodation he was given as “limited.” (Id. at
4.) He stated that Ms. Mayberry “failed to make even minimal
allowances” for his disability. (Id. at 6.) He complained that he
did not receive sufficient training in workpapers. (Id. at 5.) He
also complained that he felt the work environment was oppressive
and that it was not acceptable for him to disagree and express
his views. (Id.)
73.

Mr. Griffin testified at trial that Mr. Katz’s response

did not change his view that Mr. Katz should be fired. He
testified that if the Bridge Case had been included in
30

Mr. Griffin’s June 8 review, the review would only have been more
negative. Mr. Griffin did not ask for input from IRS employees
other than Ms. Mayberry regarding Mr. Katz’s performance; he
testified at trial that he thought that would be inappropriate.
Mr. FitzGerald testified at the EEOC proceeding, however, that,
as a team coordinator on a case Mr. Katz worked on, he should
have been asked for input on the evaluation of Mr. Katz. (Ex. 5
at 140:8-10.)
74.

On June 21, 2007, Ms. Wong issued Mr. Katz a

termination memorandum. (Stip. Facts ¶ 38; Ex. 119.) The
memorandum stated that he was being fired based on his four
failing evaluations dated February 21, March 5, April 5, and June
8, 2007 (see Ex. 119), and Ms. Wong testified at trial that those
were the documents she reviewed before issuing the memorandum. In
the memorandum, she stated that at each of the four evaluations
he failed at least three “Critical Elements” of his work, and
that at the April 5 review he failed all of them. (Id.)
75.

On July 10, 2007, Mr. Katz signed and sent to the

Office of Special Counsel a complaint form alleging violation of
the Hatch Act and that his termination was, at least in part,
motivated by the political beliefs of Mr. DeLuca, Ms. Mayberry,
and Ms. Griffin. (Stip. Facts ¶ 39; Ex. 120.) He stated that
“[t]he argument that I was fired because of poor performance is
completely fabricated out of thin air.” (Ex. 120 at ¶ 15.)

31

CONCLUSIONS OF LAW
Having evaluated the factual aspects of the evidence, the
Court will now make its conclusions of law.
1.

Mr. Katz was a federal employee, and his claims

therefore arise under section 501 of the Rehabilitation Act, 29
U.S.C. § 1971. Boyd v. U.S. Postal Serv., 752 F.3d 410, 413 (9th
Cir. 1985). The IRS is covered by the Rehabilitation Act, which
applies to “[e]ach department, agency, and instrumentality . . .
in the executive branch.” 29 U.S.C. § 791(b).
2.

Section 501 of the Rehabilitation Act provides for two

types of claims: (1) claims based upon the government’s failure
to reasonably accommodate an employee’s disability, as required
under 29 U.S.C. § 791(b); and (2) non-affirmative action
employment discrimination claims based on 29 U.S.C. § 791(g).
Mr. Katz brings both types of claim.
3.

In 1992, Congress amended the Rehabilitation Act to

clarify that its standards for evaluating employer conduct are
those applied under the Americans with Disabilities Act (“ADA”),
as such sections relate to employment. 29 U.S.C. § 791(g).
I.

Failure To Accommodate
4.

Regulations promulgated under the Rehabilitation Act

require governmental employers to make reasonable accommodation
to the known physical or mental limitations of a disabled
employee, unless the employer can demonstrate that the
accommodation would impose an undue hardship on the operation of
its program. 29 C.F.R. § 1613.704(a). This regulation contains
32

three elements: (1) plaintiff must be a qualified disabled
individual; (2) the employer must make reasonable accommodation
to the disability; and (3) the accommodation need not be made if
it would impose an undue hardship. Fuller v. Frank, 916 F.2d 558,
561 (9th Cir. 1990).
A.

Qualified Disabled Individual

5.

An individual with a disability is someone who has “a

physical or mental impairment which substantially limits one or
more of the person’s major life activities.” 29 U.S.C.
§ 705(20)(B). For purposes of section 501, the term “physical or
mental impairment” means “any physiological disorder or condition
. . . affecting [inter alia] special sense organs . . . .” 29
C.F.R. § 1614.203(b); Id. § 1630.2(h). The term “substantially
limits” “clearly precludes impairments that interfere in only a
minor way . . . from qualifying as disabilities.” Toyota Motor
Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002). To be
substantially limited, the plaintiff must be “significantly
restricted as to the condition, manner or duration under which
[he] can perform a particular major life activity as compared to
. . . the average person in the general population.” Id. at

33

195.15/ The regulations list “seeing” among “major life
activities.” 29 C.F.R. § 1630.2(i)(1)(I); see id. § 1614.203(b).
6.

Mr. Katz presented sufficient evidence at trial to

prove that his accommodative spasms amounted to a disability
under the meaning of the Rehabilitation Act up until March 8,
2007, the date of his last accommodative spasm. During this
period, Mr. Katz suffered from episodes of blindness that could
last for up to forty minutes. While having a spasm he was unable
to work, read, or drive a car. Because of the spasms he had been
forced to give up his CPA practice and had to set up a
sophisticated home office that would enable him to work from home
despite his vision problems. At trial, the IRS affirmed that it
would not contest that Mr. Katz was disabled up until March 8,
2007.
7.

To fall within the protections of the Rehabilitation

Act, Mr. Katz must also demonstrate that he was “qualified,” that
is, that he “satisfie[d] the requisite skill, experience,
education, and other job-related requirements” of his position
“and, with or without reasonable accommodation, [could] perform
the essential functions of such position.” 29 C.F.R. § 1630.2(m).

15/

The ADA Amendments Act of 2008 was passed to reject the
Supreme Court’s decisions in Sutton v. United Air Lines, Inc.,
527 U.S. 471 (1999), and Toyota, 534 U.S. 184. Pub L. 110-325
§§ 2(b)(2)-(5). But this Court must apply the version of the
ADA’s definitions that was in place when Mr. Katz was fired,
because the 2008 amendments did not apply retroactively. Becerril
v. Pima Cnty. Assessor’s Office, 587 F.3d 1162, 1164 (9th Cir.
2009).
34

8.

In this case, there appears to be no question that

Mr. Katz satisfied the requisite skill, experience, education,
and other job-related requirements of the position or that he was
capable of performing its essential functions, if his visual
disability was properly accommodated. Both Mr. Griffin and
Ms. Mayberry testified that Mr. Katz did good work on various
parts of his cases, was passionate about the technical aspect of
the work, and had valuable knowledge from his extensive practice
in the securities industry. Mr. Katz also passed through the
classroom part of his training with high scores and was clearly
an enthusiastic student during that part of his probationary
year. At trial, he came across as intelligent and knowledgeable
in the fields of mathematics and securities.
B.

Reasonable Accommodation

9.

The term “reasonable accommodation” means

“[m]odifications or adjustments to the work environment . . .
that enable a qualified individual with a disability to perform
the essential functions of [his] position,” and “may include but
is not limited to . . . acquisition or modifications of equipment
or devices.” 29 C.F.R. § 1630.2(o)(1)-(2).
10.

Once an employer is aware that an employee may be in

need of accommodation, the employer is required to engage in an
interactive process with the employee aimed at determining
appropriate reasonable accommodations. Zivkovic v. S. Cal. Edison
Co., 302 F.3d 1080, 1089 (9th Cir. 2002). The interactive process
requires “(1) direct communication between the employer and the
35

employee to explore in good faith the possible accommodations;
(2) consideration of the employee’s request; and (3) offering an
accommodation that is reasonable and effective.” EEOC v. UPS
Supply Chain Solutions, 620 F.3d 1103, 1110 (9th Cir. 2010)
(citation omitted). An employer is not obligated to award a
disabled employee the precise accommodation he requests: “the
employer need only provide some reasonable accommodation.”
Zivkovic, 302 F.3d at 1088.
11.

Both parties must actively participate in the

interactive process. See Humphrey v. Mem. Hosps. Ass’n, 239 F.3d
1128, 1137 (9th Cir. 2001) (reversing grant of summary judgment
to employer where employee notified employer that initial
accommodation was not working and employer refused to explore
alternatives); Allen v. Pac. Bell, 348 F.3d 1113, 1115-16 (9th
Cir. 2003) (affirming grant of summary judgment to employer where
employee did not submit requested medical information and did not
appear for a keyboard test that employer requested to determine
appropriate accommodation).
12.

Mr. Katz argues that the IRS’s first attempt at

accommodation was not reasonable. The Court disagrees. Mr. Katz’s
reasonable accommodation request did not fully describe the
problems that he faced in doing his work. His doctor described
his symptoms merely as “headaches.” It is difficult to find, as
Mr. Katz argues, that the IRS’s doctor was “grossly negligent” in
her analysis (see Pl.’s Proposed Findings at 2 ¶ 1) when
Mr. Katz’s doctor so lightly characterized Mr. Katz’s problems.
36

Mr. Katz makes much of the fact that Dr. Cohen never contacted
Mr. Katz’s own doctor. (Id. at 2 ¶ 1.1.) No doubt that would have
been the best practice, but she was not required to do so,
particularly where Mr. Katz’s doctor had filled out a form that
was supposed to detail his problems.
13.

Mr. Katz testified at trial that Dr. Cohen’s

recommendation to look away from the screen every 15 minutes was
the same advice that Mr. Katz’s doctors had been giving him for
years. He testified at deposition that the advice was effective
in preventing spasms, but that the problem was he would get
caught up in his work and forget to take a break. (Ex. 122 at
96:12-97:8.) Moreover, Mr. Katz testified at trial that
Mr. Griffin’s allowing him to work from home made it much easier
for him do his work. The Court finds that the accommodation
offered to Mr. Katz was made in good faith and was reasonable,
given that the intention was for Mr. Katz to be able to use his
home monitor.
14.

The next question, then, is whether the IRS knew or

should have known that Mr. Katz was not able to use his home
monitor. The employer’s continuing duty to accommodate its
employee’s disability is not exhausted by one effort. Humphrey,
239 F.3d at 1138. The employer’s duty “continues where the
employee asks for a different accommodation or where the employer
is aware that the initial accommodation is failing.” Id. In this
case, however, Mr. Katz never asked for a different
accommodation, and the IRS was not aware that its initial attempt
37

at accommodation had failed. In Humphrey, the Ninth Circuit found
that the plaintiff’s repeated absences made it “abundantly clear”
to her employer that the accommodation for her disability was not
working. Id. at 1138. Here, by contrast, Mr. Katz has not
presented sufficient evidence to show that the IRS should have
been aware that its accommodation was not working.
15.

Mr. Katz’s repeated arguments that Mr. Griffin was not

“proactive” enough in solving the problems with his accommodation
are unconvincing, since Mr. Katz has not shown that Mr. Griffin
was or should have been aware of any problem. The only time that
Mr. Katz testified he directly told any supervisor about his
equipment problems was the conversation with Mr. Griffin about
the IRS’s equipment policy. Mr. Griffin, testifying at trial,
remembered the conversation but believed that they had discussed
the IRS’s policy, not Mr. Katz’s technical problems connecting
his monitor. The Court finds it plausible that this conversation
resulted in a miscommunication. Mr. Katz believed he had told
Mr. Griffin that his monitor would not connect to the IRS laptop.
Mr. Griffin, on the other hand, only understood that an IRS
computer technician had told Mr. Katz that it was contrary to IRS
policy to connect the monitor. Mr. Griffin told Mr. Katz that he
was allowed to connect the monitor and therefore believed that
the issue was now resolved.16/ It is undisputed that Mr. Katz

16/

Mr. Griffin and Mr. Katz disputed at trial what exactly
IRS policy allowed at the time. That dispute is not relevant
here, since Mr. Katz never challenged Mr. Griffin’s initial
assessment. The Court credits Mr. Griffin’s testimony that he
38

never raised the issue again with Mr. Griffin or anyone else at
the IRS.
16.

Mr. Katz argues that Mr. Griffin or Ms. Mayberry ought

to have known that the IRS’s accommodation wasn’t working because
Mr. Katz was working long hours and missed his work study
deadlines.17/ Mr. Griffin testified at trial, however, that missed
deadlines could be caused by any number of reasons, and that new
FP employees frequently had problems with time management. He
also testified that both new and experienced FP specialists
frequently work long hours. The Court finds Mr. Griffin’s
testimony credible. There was no reason for Mr. Griffin to infer
that Mr. Katz was working long hours and missing deadlines
because of his disability, rather than because he was new to the
IRS and was having trouble juggling his case load.
17.

Regarding the failure of the reasonable accommodation,

Mr. Katz testified in his direct testimony “I sent every possible
signal I could without overtly complaining.” (Ex. 34 at 2
(emphasis added).) This statement precisely encapsulates the
problem with Mr. Katz’s claim for failure to accommodate. In his
Final Proposed Findings of Fact and Conclusions of Law, Mr. Katz
explained that “as a practicing CPA, [he] always tried to hide

believed Mr. Katz was allowed to use his monitor with the IRS
laptop, particularly given Mr. Griffin’s testimony that he
himself had been able to connect an IRS computer to his home
monitor.
17/

Mr. Katz’s argument here is somewhat inconsistent with
his own testimony that he “sloughed off” the work study deadlines
because he felt they were “inane” and “punitive.”
39

his low vision condition and find creative ways to compensate for
his poor vision.” (Pl. Proposed Findings at 14 ¶ 1.13.) It
appears that Mr. Katz continued that pattern of behavior while at
the IRS.
18.

Mr. Katz never requested that the IRS reconsider his

accommodation request. Moreover, as Mr. Katz continued to receive
and respond to failing performance reviews, he never told his
supervisors that he was having problems with his monitor. Defense
counsel in his closing argument noted five different occasions on
which Mr. Katz defended himself against negative reviews but
never mentioned his vision problems: (1) the lengthy email
exchange with Mr. Griffin regarding his February 21 review
(Ex. 125); (2) Mr. Katz’s email response to Mr. Livingston’s
March 13 review (Ex. 108); (3) Mr. Katz’s email exchange with
Ms. Mayberry regarding the missed work study deadlines (Ex. 128);
(4) the April 9 meeting with Ms. Mayberry to discuss her April 5
improvement plan (see Ex. 115); and (5) Mr. Katz’s fax to
Mr. Griffin regarding the April 5 evaluation (Ex. 30).18/
19.

In sum, the evidence presented at trial, taken all

together, implies that Mr. Katz did not want to be seen as
“overtly complaining” and was reluctant to make evident to the
IRS the extent of his visual problems. Unlike the plaintiff in
Humphrey, Mr. Katz never asked his employer to revisit his

18/

On the other hand, Mr. Katz did raise his vision
problems in his response to Mr. Griffin’s June 8, 2007 final
evaluation, but only after he had been told he would be fired.
(See Ex. 117 at 4, 6.)
40

accommodation. Instead, he worked very long hours into the
evenings and on weekends. It was not, and could not have been,
clear to his supervisors that his vision remained a problem.
Mr. Katz’s work ethic is admirable, but his reluctance to inform
the IRS that its accommodation wasn’t working ultimately dooms
his claim for failure to accommodate. The IRS cannot be held
responsible for failing to accommodate Mr. Katz’s disability if
Mr. Katz failed to inform the IRS that its first good-faith
attempt at accommodation was unsuccessful.
C.

Undue Burden

20.

For completeness’ sake, the Court notes that there is

no dispute that the cost of providing a large monitor for
Mr. Katz would not have been an undue burden for the IRS.
II.

Employment Discrimination
21.

Mr. Katz’s second claim is for non-affirmative action

employment discrimination, under 29 U.S.C. § 791(b). The claim
has three elements: (1) at the time of the alleged
discrimination, plaintiff had a disability within the meaning of
the Rehabilitation Act; (2) except for such disability, he was
otherwise qualified for the position; and (3) he suffered an
adverse employment action “because of” his disability. Walton v.
U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007).
22.

As noted above, there is no question in this case that

Mr. Katz was qualified for his position. The Court will therefore
address the other two elements of his claim.

41

23.

The familiar burden-shifting scheme set forth in

McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973),
applies to disability discrimination claims. See Raytheon Co. v.
Hernandez, 540 U.S. 44 (2003) (applying McDonnell Douglas burden
shifting framework to ADA disability discrimination claim); Kim
v. Potter, 474 F. Supp. 2d 1175 (D. Haw. 2007) (applying
McDonnell Douglas burden shifting to Rehabilitation Act claim).
Under this burden-shifting scheme, Mr. Katz must first set forth
a prima facie disability discrimination claim under the
Rehabilitation Act. Once Mr. Katz has put forth his prima facie
claim, the burden then shifts to the IRS, which must present a
legitimate, nondiscriminatory reason for its actions. See Smith
v. Barton, 914 F.2d 1330, 1340 (9th Cir. 1990); Lucero v. Hart,
915 F.2d 1367, 1371 (9th Cir. 1990). If the IRS does so, the
burden shifts back to Mr. Katz, who must demonstrate that the
IRS's proffered reason is pretextual or “encompassed unjustified
consideration” of Mr. Katz's disability. Smith, 914 F.2d at 1340.
A.

Disability

24.

The IRS contends that Mr. Katz was not disabled after

his March 2007 surgeries. (Def. Proposed Findings at 25 ¶ 7.)
Mr. Katz contends that he was disabled until June 22, 2007, when
he received his final pair of glasses. (Pl. Proposed Findings at
1-2.)
25.

Mr. Katz’s own statements are damaging to his argument

here. Mr. Katz testified in his deposition as follows:

42

Q.

. . . Then after March of 2007,
after your accommodative spasms
stopped, you were able to work off
of a computer screen much more
easily; right?

A.

I have no problems. . . . But I
couldn’t really see too well,
because . . . it takes time after
the surgery for your eyes to
stabilize. So . . . in order to
work, I had the doctor prescribe
glasses for me and then when the
glasses stopped working, I would go
back and get another prescription.
. . . I’d have to go back to the
doctor, get a new prescription,
until my eyes finally
stabilized . . . .

(Ex. 122 at 175:19-176:14.) Describing his frequently changing
prescription in an e-mail to Mr. DeLuca in late March 2007,
Mr. Katz said, “[e]very time it gets bad enough, I have to get
the prescription changed. It’s not as bad as it sounds. But, it
is a nuisance.” (Ex. 127.)
26.

The Court credits Mr. Katz’s argument that, as a person

who has always had poor vision, his statements that his vision
was fine or without problems after his cataract surgeries were
not meant to indicate that he had perfect vision. (Pl. Proposed
Findings at 4 ¶ 1.5.) But poor vision, correctable by glasses,
does not rise to the level of a disability under the ADA. The
term “substantially limits” “clearly precludes impairments that
interfere in only a minor way . . . from qualifying as
disabilities.” Toyota Motor Mfg., 534 U.S. at 197. After March 8,
2007, Mr. Katz no longer suffered from accommodative spasms or
episodes of temporary blindness. He had poor but correctable
43

vision. He testified that he was able to sharply reduce the
number of hours he worked per day. That he was forced to change
his glasses lenses frequently because his eyes were still
adjusting is unfortunate and was undoubtedly expensive,19/ but
does not rise to the level of a disability.
27.

Mr. Katz also contends that even if he was not disabled

under the meaning of the Rehabilitation Act after March 8, 2007,
the seeds for his dismissal were sown while he was disabled, by
the IRS’s failure to accommodate his disability. The Court agrees
that the IRS’s argument that Mr. Katz “was not disabled at the
time of his termination” (Def. Proposed Findings at 22) is too
narrow a framing of the issue. The Court will address this
argument regarding causation below.
B.

Causation

28.

“Unlike a simple failure to accommodate claim, an

unlawful discharge claim requires a showing that the employer
terminated the employee because of his disability.” Humphrey, 239
F.3d at 1139. The employee bears the burden of proof on this
element. See Costa v. Desert Palace, Inc., 299 F.3d 838, 857 (9th
Cir. 2002). There is no dispute that Mr. Katz was fired; the
question is whether he was fired “because of” his disability.
This raises the question of how to define “because of.”

19/

The Court notes and credits Mr. Katz’s statement that he
“made every effort during the course of his employment to . . .
improve his vision on his own and at his own expense.” (Pl.
Proposed Findings at 8 ¶ 1.9.)
44

1.
29.

Legal Standard

Formerly, courts in this circuit had applied to

disability discrimination claims the “motivating factor” standard
which was added to Title VII by the Civil Rights Act of 1991, 42
U.S.C. § 2000e-2(m) (which itself adopted and partially abrogated
the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490
U.S. 228 (1989)). E.g., Head v. Glacier Nw., Inc., 413 F.3d 1053
(9th Cir. 2005).20/ In 2009, however, the Supreme Court held that
Title VII’s “motivating factor” standard could not be applied to
age discrimination claims under the Age Discrimination in
Employment Act of 1967 (“ADEA”). Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167 (2009). The Supreme Court’s rejection of the
“motivating factor” standard was based on the differences between
Title VII and the ADEA; Congress had added the “motivating
factor” standard to Title VII only, even though it amended the
ADEA at the same time. Id. at 174. The Gross decision prompted a
“burgeoning circuit split” as the circuit courts attempted to

20/

It is important to note that although claims brought
under section 504 of the Rehabilitation Act require the plaintiff
to prove that action was taken against him “solely by reason of”
his disability, claims, like Mr. Katz’s, brought under section
501 are subject to the ADA’s causation standards, and thus merely
require that the action be taken “because of” the plaintiff’s
disability. See Head, 413 F.3d 1053. It is quite clear that the
ADA standards incorporated into the Rehabilitation Act under
section 501(g) “do not require the adverse employment action to
have been ‘solely by reason of’ disability, in contrast to the
explicit terms of § 504.” Ward v. Vilsak, No. 2:10-CV-00376, 2011
WL 6026124, at *12 (E.D. Cal. Dec. 2, 2011) (citations omitted);
see 42 U.S.C. § 12112(a). The legislative history of the Act
shows that the omission of this language was not accidental. See
McNely v. Ocala, 99 F.3d 1068, 1075 (11th Cir. 1996) (quoting
H.R. Rep. No. 485(II), 2nd Sess., at 85 (1990)).
45

parse whether Gross’s reasoning should apply to claims under
other non-Title VII statutes. See generally Deborah A. Widiss,
Undermining Congressional Overrides: The Hydra Problem in
Statutory Interpretation, 90 Tex. L. Rev. 859 (2012) (providing
national overview of Gross’s progeny). The issue is particularly
thorny when contemplating Rehabilitation Act claims: on the one
hand, the ADA’s causation language, which is incorporated by
section 501 of the Rehabilitation Act, is very similar to the
ADEA’s, compare 42 U.S.C. §§ 12203 (ADA) to 29 U.S.C.
§§ 623(a)(1) (ADEA); on the other hand, the Rehabilitation Act
explicitly incorporates Title VII’s standards and remedies, see
29 U.S.C. § 794a(a)(1).
30.

The Ninth Circuit has not ruled on whether Gross

applies to disability discrimination claims.21/ But every circuit
court of appeals to examine the application of Gross to ADA
claims has required ADA plaintiffs to prove “but-for” causation.
The Sixth and Seventh Circuits squarely held that Gross requires
“but-for” causation in ADA cases. Serwatka v. Rockwell
Automation, Inc., 591 F.3d 957, 961-62 (7th Cir. 2010); Lewis v.
Humboldt Acquisition Corp., Inc., 681 F.3d 312, 318-19 (6th Cir.
2012). The Third Circuit had already required “but-for” causation
before Gross was decided. New Directions Treatment Servs. v. City

21/

The only district court in this circuit to address the
issue held that Gross does apply to such claims, and therefore
that an ADA plaintiff must prove “but-for” causation. Ross v.
Independent Living Resource, No. C08-00854, 2010 WL 2898773, at
*6 (N.D. Cal. July 21, 2010).
46

of Reading, 490 F.3d 293, 301 n.4 (3d Cir. 2007). The Eighth
Circuit noted without deciding the issue that “[w]e have our
doubts” about applying the “motivating factor” standard to ADA
claims after Gross. Pulczinski v. Trinity Structural Towers,
Inc., 691 F.3d 996, 1002 (8th Cir. 2012).
31.

The only circuit court of appeals to address whether

Gross’s reasoning applies specifically to Rehabilitation Act
claims is the First Circuit, which held that a plaintiff under
the Rehabilitation Act had to prove “but-for” causation.
Palmquist v. Shinseki, 689 F.3d 66, 73-74 (1st Cir. 2012).
Shinseki discusses the interpretation of this complex statutory
scheme thoroughly and clearly. This Court finds the First
Circuit’s reasoning convincing.
32.

In sum, Mr. Katz need not prove that his disability was

the only reason he was fired, but he must prove that but for his
disability, he would not have been fired.
2.
33.

Application to Facts of this Case

In this case, Mr. Katz does not argue that his

supervisors were directly prejudiced against disabled people.
(See, e.g., Ex. 122 at 91:12-21.) Rather, he argues that the IRS
failed to reasonably accommodate his disability, that the
accommodation failure resulted in his job performance being
inadequate, and that he was fired because of those inadequacies.
(See Ex. 34 at 2.) As the Ninth Circuit noted in Humphrey, “[t]he
link between the disability and termination is particularly
strong where it is the employer’s failure to reasonably
47

accommodate a known disability that leads to discharge for
performance inadequacies resulting from that disability.” 239
F.3d at 1140.
34.

As a preliminary matter, up until trial, Mr. Katz had

consistently argued that his performance was “exemplary” and that
he had been fired because he is Jewish and a Republican. (Ex. 122
at 82:16-25; see id. at 91:12-92:4; 94:15-95:4.) In his July 2007
Hatch Act complaint he stated that “[t]he argument that I was
fired because of poor performance is completely fabricated out of
thin air.” (Ex. 120 at ¶ 15.) At his deposition, he testified, “I
was fired because of my political beliefs, period” and claimed
that Mr. Griffin “wanted to get rid of me ever since Jerry DeLuca
interviewed me to find out that I was really not a Democrat.”
(Ex. 122 at 95:1-2; 103:24-104:1.) In his deposition, the
following exchange occurred:
Q.

You are aware that the IRS contends
that they fired you for performance
issues, right?

A.

That’s what they contend.

Q.

Okay. Is it your contention, as you
sit here today, that, in fact, your
performance was at least adequate?

A.

It was exemplary.

(Id. at 82:16-25.) And later:
Q.

But it’s your contention, as I
understand it, that as a result of
working long hours you were able to
do, as you call it, an exemplary
job for the IRS, right?

A.

I did.
48

(Id. at 102:16-19.)
35.

It is difficult to reconcile those representations with

Mr. Katz’s current argument that his performance was poor in
places because of his visual problems, and that he was fired
because of those parts of his performance. Nonetheless, the Court
will now address Mr. Katz’s current theory of the case.
a.
36.

Prima Facie Case

It is undisputed that Mr. Katz had an excellent work

record for his first five months on the job, and only began to
receive negative reviews after his classroom training period
ended. Mr. Katz argued at trial that this timing is
circumstantial evidence that his poor work reviews stemmed from
his vision problems, since after his classroom training ended he
had to do more close work. The timing is also consistent,
however, with Mr. Griffin’s trial testimony that Mr. Katz’s
performance was good while he was mostly in class and had few
cases. Mr. Griffin testified that once Mr. Katz was out of the
classroom, it became apparent that he was not good at juggling
multiple cases and was resistant to the administrative work that
the full-time specialist position requires, refusing to follow
instructions and rejecting criticism of his case work.
37.

Mr. Katz has not presented evidence sufficient to show

that he missed the work study deadlines assigned to him by
Ms. Mayberry because of his vision problems. Indeed, the evidence
shows that Mr. Katz ignored these deadlines because he believed
they were inane and punitive and did not consider them to be
49

“real” deadlines. Mr. Katz and Ms. Mayberry communicated
repeatedly about the work study deadlines. Ms. Mayberry testified
at trial – and Mr. Katz has admitted – that he never explained
that he had been unable to meet the deadlines because his vision
problems were interfering with his work. Even if he did miss
these deadlines because of his vision problems, however, the bulk
of his performance issues were related not to deadlines but to
attitude and interpersonal difficulties.
38.

Mr. Katz argued in his deposition that his vision

problems caused his irritable behavior towards Ms. Mayberry.
(Ex. 122 at 104:16-22.) That contention is not plausible.
Mr. Katz himself presented substantial evidence that he was not
hostile or contentious when working on other cases or with other
people; and Ms. Mayberry repeatedly testified that Mr. Katz was
very pleasant to her as long as they were not discussing the
Bridge Case. The evidence presented at trial showed that Mr. Katz
was assigned several other complex, stressful cases during this
period, notably the SILOs case, but that Mr. Katz had
interpersonal difficulties only with Ms. Mayberry. The evidence
suggests, therefore, not that Mr. Katz was generally irritable
during this period, but that he was unable to respond
appropriately to having a substantive disagreement with a
supervisor.
39.

Finally, Mr. Katz has produced no evidence that the

problems with his workpapers that Mr. Griffin identified in June
2007 were caused by his vision problems. Mr. Katz argues that he
50

did not receive the correct training on these workpapers, but has
produced no evidence that the alleged inadequacies in his
training were in any way related to his vision problems.
40.

The Court concludes that Mr. Katz has not presented

evidence of a prima facie case of disability discrimination. Even
if he had presented a prima facie case, however, the IRS has
presented extensive evidence of its legitimate, nondiscriminatory
reasons for firing Mr. Katz, as discussed below.
b.
41.

IRS’s Stated Reasons for Termination

Ms. Wong’s termination letter, and her trial testimony,

listed four 2007 performance reviews as reasons for firing
Mr. Katz: (1) Mr. Griffin’s February 21 review;
(2) Mr. Livingston’s March 5 review; (3) Ms. Mayberry’s April 5
review and improvement plan; and (4) Mr. Griffin’s June 8
workload review. In her letter, she noted that at each of these
reviews Mr. Katz failed at least three “Critical Elements” of his
work, and that at the April 5 review he failed all of them.
42.

As a preliminary matter, on the IRS’s witness’ own

testimony, Mr. Livingston’s negative review of Mr. Katz’s work on
the SILOs case should not have been included in Ms. Wong’s final
review. Mr. Griffin testified that at some point after
Mr. Livingston’s review, it was determined that Mr. Katz’s
assignment on the SILOs case was impossible to complete in the
time originally given to him. Mr. Griffin also testified that the
March 5 review was not included in Mr. Katz’s later performance
evaluations. That testimony does not appear to be accurate,
51

although it was not given in bad faith - Mr. Griffin deliberately
excluded the SILOs case from his June review. Nonetheless,
Ms. Wong apparently still considered it.
43.

Even disregarding Mr. Livingston’s March 5 review,

however, the IRS has presented substantial evidence of its
legitimate, nondiscriminatory reasons for firing Mr. Katz.
44.

Most importantly, there is extensive evidence in the

record regarding Mr. Katz’s dispute with Ms. Mayberry and
Mr. Moren over the correct characterization of the Bridge Case
and the use of gambling terminology, and with Ms. Mayberry alone
over his use of Mr. Anderson’s draft report. It is clear that
Mr. Katz did not meet the objectives of his April 5 improvement
plan. Despite multiple warnings - and despite Mr. Katz’s
testimony that he understood on April 5 that if he did not
conform to the improvement plan he could be fired - his final
draft report for the Bridge Case contained nearly all of the
problems identified by Ms. Mayberry in the April 5 document.
45.

Mr. Katz’s interpersonal difficulties with his OJI were

also extreme. Mr. Katz presented past testimony from other IRS
employees that Mr. Katz was enthusiastic, helpful, and not
hostile. The Court does not doubt the accuracy of these
characterizations. They are, however, consistent with
Ms. Mayberry’s repeated testimony that Mr. Katz was very nice to
her as long as they were not discussing the Bridge Case.
Ms. Mayberry’s testimony about Mr. Katz’s hostility toward her
when discussing the Bridge Case is corroborated by Mr. Katz’s
52

extremely negative statements about Ms. Mayberry during his
deposition. Apart from accusations of anti-Semitism, he also
described her as stupid, obstinate, rigid, crazy, and somewhat
senile.22/ It was clear during Mr. Katz’s trial testimony that he
now regrets some of the words he used in his deposition and that
some of them no longer accurately reflect how he feels about
Ms. Mayberry. Nonetheless, his deposition testimony is consistent
with Ms. Mayberry’s descriptions of his inappropriate anger
regarding the Bridge Case.
46.

Mr. Katz clearly believed - and still believes - that

he understood the Bridge Case better than Mr. Griffin and
Ms. Mayberry. The Court need not decide the merits of this
dispute: “courts only require that an employer honestly believed
its reason for its actions, even if its reason is foolish or
trivial or even baseless.” Villiarimo v. Aloha Island Air, Inc.,
281 F.3d 1054, 1063 (9th Cir. 2002). The relevant point is that,
while still in his first year at the IRS, and still on probation,
Mr. Katz stubbornly refused to defer to the judgment of three
senior specialists with, between them, several decades of
experience in the field. Mr. Katz first presented his theory of
the case in, at the latest, November 2006, and stubbornly stuck

22/

The Court notes that during Ms. Mayberry’s lengthy trial
testimony, she came across as thoughtful, intelligent, and
competent. The Court found no corroboration for Mr. Katz’s
descriptions of her. The Court also found that both Ms. Mayberry
and Mr. Griffin were generally credible witnesses. The Court
finds that they supervised Mr. Katz in good faith and in a
professional manner.
53

to it for seven months. Mr. Eldred, Mr. Griffin, and Ms. Mayberry
all disagreed with Mr. Katz’s assessment. The team manager,
Mr. Moren, was unhappy with Mr. Katz’s approach. Even if Mr. Katz
were right about the Bridge Case after all, the IRS was justified
in finding his attitude unworkable. Most jobs require an employee
to adjust to the culture and expectations of his employer.
Mr. Katz was apparently unable to adjust to the IRS’s culture and
expectations.
47.

Mr. Katz’s arguments that Ms. Mayberry and Mr. Griffin

were in effect asking him to lie in his report are unavailing. It
was quite clear from their testimony that Ms. Mayberry and
Mr. Griffin believed their interpretation of the Bridge Case to
be accurate; the dispute was over how to interpret the facts and
law, and the appropriate language in which to present the
arguments. Mr. Katz was simply unable - and is still unable – to
accept that Ms. Mayberry or Mr. Griffin’s interpretation might be
more accurate than his own, or their approach better suited to
the purposes of an FP report.
48.

Finally, Mr. Griffin’s June 2007 audit of Mr. Katz’s

workpapers was another factor in his termination. Mr. Katz
repeatedly suggested at trial that he had not received proper
training on workpapers and that Mr. Griffin had failed to check
on the training he was receiving. Neither party produced evidence
as to what training, exactly, Mr. Katz received. Regardless,
Mr. Griffin testified that based both on the papers and on
conversations he had with Mr. Katz, he felt Mr. Katz did not take
54

seriously the administrative parts of his job. He testified that
Mr. Katz told him that he did not like the bureaucracy of working
for the government.
49.

Mr. Griffin’s decision not to include the Bridge Case

in his final audit is perplexing, since by all accounts that case
comprised the majority of Mr. Katz’s work. The Court cannot infer
any improper motive or unfair outcome from the decision, however,
for two reasons. First, Mr. Griffin was well aware that
Mr. Katz’s work on the Bridge Case had not been acceptable;
presumably if he were aiming to find fault with Mr. Katz, he
would have included the Bridge Case in his review. Second,
Mr. Griffin testified, and the Court believes, that including the
Bridge Case in his review would not have benefitted Mr. Katz, but
rather would only have made the review more negative.
D.

Conclusion as to Employment Discrimination Claim

50.

In sum, the Court does not find that Mr. Katz ever

acted in bad faith; indeed, it is quite clear that Mr. Katz cared
passionately about his job and was trying to do it well.
Unfortunately, the choices that he made while working make it
entirely understandable that the IRS no longer wished to employ
him. Mr. Katz was fired for a host of problems, but primarily
because he was unprofessional and disrespectful to his
supervisors when discussing his work on the Bridge Case, refused
to defer to their judgment, and failed to keep up his workpapers
properly on other cases. The IRS has provided sufficient evidence
to show that if Mr. Katz had suffered no visual problems at all,
55

he still would have been fired. Indeed, even if the Court were to
apply the pre-Gross “motivating factor” test, Mr. Katz has not
shown that his disability was a motivating factor in the IRS’s
decision to fire him.23/
DECISION
It is clear both from the documentary evidence and from the
witnesses’ testimony that Mr. Katz was good at and well suited to
some parts of his job. Ms. Mayberry testified that the facts
section of the Bridge Case report was very good and that Mr. Katz
asked intelligent and helpful questions of the taxpayer’s
executive officer. Mr. Griffin repeatedly testified that Mr. Katz
cared about the technical part of FP work and that his experience
in the securities broker-dealer industry was an asset.
Mr. Griffin also agreed that Mr. Katz was very conscientious and
tried hard to follow rules. Mr. Katz himself gave heartfelt
testimony about his passion for tax law. There is no question
that Mr. Katz cared deeply about his job and about the IRS’s
mission. The Court was impressed that Mr. Katz is a very

23/

As noted above, Mr. Katz has not shown that his visual
disability caused any of the problems for which the IRS fired
him. First, he argued that his visual problems caused him to miss
Ms. Mayberry’s work study deadlines; but he testified in
deposition that he “sloughed off” those deadlines because he felt
they were “inane” and “punitive” and were not “real” deadlines.
Second, he also argued that the long hours he was working caused
him to be irritable with Ms. Mayberry over the Bridge Case; but
that contention is not plausible because he presented extensive
evidence that he did not become irritable when dealing with any
other IRS employees on any of his other cases.
56

principled man. The Court commends his patriotism and his
dedication to his Jewish faith.
Mr. Katz’s conduct on the job was, however, consistently
self-destructive. He did not tell anyone at the IRS that the
accommodation for his visual disability wasn’t working; he just
worked more hours. He did not raise with Ms. Mayberry or
Mr. Griffin, or anyone else at the IRS, his feelings that he was
being victimized because of his religion or his political
beliefs; he just bottled them up, and perhaps allowed them to
influence his behavior with Ms. Mayberry. He did not push for
extra training on the administrative parts of the job that he
apparently was not comfortable with. He argued with his
supervisor and his instructor, refused to take instruction from
them, and responded angrily and obstinately to criticism.
In sum, the Court must find in favor of the IRS. As to
Mr. Katz’s claim for failure to accommodate, the IRS offered, in
good faith, an initial reasonable accommodation of Mr. Katz’s
disability. Mr. Katz failed to notify the IRS that the
accommodation was not working. As to Mr. Katz’s claim for
wrongful termination, Mr. Katz has failed to show that his
disability was either the “but for” cause or a motivating factor
in his termination.
In light of the foregoing findings of fact and conclusions
of law, the Court finds that:
(1) Mr. Katz has failed to prove his claims by a
preponderance of the evidence, and
57

(2) the IRS is entitled to judgment on all counts.
Having made those findings, the Court concludes that the
IRS’s motion for judgment on partial findings is moot.

IT IS SO ORDERED.
DATED: Honolulu, Hawai’i, March 4, 2013

________________________________
Alan C. Kay
Sr. United States District Judge

Katz v. Geithner, Civ. No. 09-00599 ACK-RLP, Findings of Fact, Conclusions of
Law, and Decision

58