Johnson v. Lew et al

Filing 71

DECISION AND ORDER: that the Clerk of the Court shall substitute Steven T. Mnuchin for Secretary of the Treasury Jacob J. Lew as the Defendant in this action, pursuant to Fed. R. Civ. P. 25(d); that Defendant's motion for summary judgment (Dkt. No. 64 ) is Granted, that Plaintiff's motion for summary judgment (Dkt. No. 65 ) is Denied; that Plaintiff's Second Amended Complaint (Dkt. No. 55 is Dismissed in its entirety, and that the Clerk of the Court shall enter judgment in favor of Defendant and close this case. Signed by Chief Judge Glenn T. Suddaby on 08/30/2017. (Copy served via regular and certified mail on pro se plaintiff on 8/30/2017.)(hmr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
JEROME R. JOHNSON,
Plaintiff,
v.

1:13-CV-1072
(GTS/CFH)

JACOB J. LEW, Sec’y, Dep’t of Treasury, Internal
Revenue Serv.,1
Defendant.
___________________________________________
APPEARANCES:

OF COUNSEL:

JEROME R. JOHNSON
Plaintiff, Pro Se
28 First Street
Albany, NY 12210
HON. GRANT C. JAQUITH
Acting United States Attorney for the N.D.N.Y.
Counsel for Defendant
James T. Foley U.S. Courthouse
445 Broadway, Room 218
Albany, NY 12207

KAREN LESPERANCE, ESQ.
Assistant United States Attorney

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this employment discrimination action filed pro se by
Jerome R. Johnson ("Plaintiff") against Jacob J. Lew (“Defendant”), are Defendant’s motion for
summary judgment pursuant and Plaintiff’s motion for summary judgment. (Dkt. Nos. 64, 65.)
For the reasons set forth below, Defendant’s motion is granted, and Plaintiff’s motion for
summary judgment is denied.

1

Because Steven T. Mnuchin is now the Secretary of the Treasury, the Clerk of the
Court is directed to substitute him for Jacob J. Lew as the Defendant in this action, pursuant to
Fed. R. Civ. P. 25(d).

I.

RELEVANT BACKGROUND
A.

Plaintiff's Second Amended Complaint

Generally, liberally construed, Plaintiff's Second Amended Complaint alleges as follows.
(Dkt. No. 55 [Second Am. Compl.].)2 Plaintiff worked as an Individual Taxpayer Advisory
Specialist (“ITAS”) with the Internal Revenue Service’s (“IRS”) Wage & Investment (“W&I”)
Field Assistance Office in Albany, New York. (Id.) In or around 1996, Plaintiff submitted a
suggestion to his supervisor, Patricia Rafferty, the purpose of which was “to provide short term
and long term recruitment of low income and minority students affiliated through the mayors
[sic] summer youth program and Albany high school [sic] in Albany, New York.” (Id. at 2.)3 At
some point in time, Plaintiff “also submitted his suggestion in his capacity as Black Employment
Program Manager” to the “EEO Director,” Sharon Floyd, who is a white female. (Id.)
Ultimately, “Floyd implemented Plaintiff[’s] suggestion in Buffalo, New York,” in conjunction
with the Volunteers in Service to America (“VITA”) program. (Id.) Moreover, “Floyd and other
IRS employee[s] implemented the suggestion” at Catholic High School in Troy, New York.
“EEO awards” were given to “them” for this suggestion, but Plaintiff was not recognized,
awarded, or compensated for his suggestion; rather, at some point in time, Plaintiff was
“terminated . . . from his position as Black Employment Program Manager.” (Id.)

2

Although this document is titled “MOTION TO AMEND COMPLAINT,” the
Court construes it to be Plaintiff’s Second Amended Complaint. In a Memorandum Decision
and Order, U.S. Magistrate Judge Christian F. Hummel granted in part Plaintiff’s motion to
amend his Amended Complaint. (Dkt. No. 52.)
3

Page citations to Plaintiff’s Second Amended Complaint refer to the pagination
generated by CM/ECF, the Court’s electronic filing system.
2

Similarly, in 2002, Plaintiff submitted a “suggestion award proposal,” suggesting that the
IRS create “an outreach program in neighborhood health centers across the country” to help lowincome citizens determine whether they were eligible for an earned income tax credit. (Id. at 4.)
The IRS “used [Plaintiff’]s suggestion but denied it,” and Plaintiff filed a grievance alleging that
he should have been awarded a portion of the savings that accrued to the IRS, as provided for in
the “2001 Suggestion Program Memorandum.” (Id.) The IRS asserted that no monetary savings
actually accrued “from the suggestion,” but offered Plaintiff $700 in settlement of his grievance
(which Plaintiff accepted). (Id.)
Additionally, Defendant retaliated against Plaintiff for filing a complaint with the Equal
Employment Opportunity Commission (“EEOC”), when, on September 29, September 30,
October 1, October 4, and October 7, 2010, it denied his requests for Leave Without Pay
(“LWOP”), and charged him with being Absent Without Leave (“AWOL”). (Id. at 2-3.)
Based on these factual allegations, Plaintiff’s Complaint asserts the following claims
against Defendant: (1) a claim of race discrimination in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; (2) a claim of gender discrimination in
violation of Title VII; (3) a claim of age discrimination in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; and (4) a claim of retaliation in violation
the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16. (Id.)
Familiarity with the factual allegations supporting the claims in Plaintiff’s Second
Amended Complaint (as well as the procedural history of this case) is assumed in this Decision
and Order, which is intended primarily for the review of the parties.

3

B.

Undisputed Material Facts on Defendant’s Motion for Summary Judgment

Before reciting the facts material to Defendant’s motion for summary judgment, a few
comments are appropriate regarding Plaintiff’s response to Defendant’s motion. In support of its
motion, Defendant filed a statement of material facts pursuant to Local Rule 7.1(a)(3) of the
Court’s Local Rules of Practice (“Rule 7.1 Statement”). (Dkt. No. 64, Attach. 3.) Plaintiff’s
response thereto does not comply with Local Rule 7.1(a)(3) of the Court’s Local Rules of
Practice because it does not “mirror” Defendant’s statement of material facts “by admitting or
denying Defendant’s assertions in matching numbered paragraphs,” nor does it support any
denials therein with specific citations to the record. N.D.N.Y. L.R. 7.1(a)(3). Rather, in
response to Defendant’s motion, Plaintiff has filed a single document, titled “Statement of
Opposition to Defendant’s Motion for Summary Judgment,” which contains both his legal
arguments and his responses (to the limited extent that he does respond) to Defendant’s Rule 7.1
Statement. (Dkt. No. 67 [Plf.’s Opp’n to Def.’s Mtn.].) The Court notes that Plaintiff received a
copy of the Court’s Pro Se Handbook when he filed his Complaint (August 30, 2013). (Dkt. No.
4.) Additionally, in conjunction with its summary judgment motion, Defendant served Plaintiff
with a copy of the Court’s Notification of the Consequences of Failing to Respond to a Summary
Judgment Motion, which also advised Defendant of the requirements of Local Rule 7.1(a). (Dkt.
No. 64, Attach. 1.) Out of special solicitude to Plaintiff as a pro se civil rights litigant, however,
the Court will treat his opposition as a response to Defendant’s Rule 7.1 Statement, carefully
reviewing it for any record-supported disputation of Defendant’s Rule 7.1 Statement.4

4

Moreover, as in every case, the Court reviews Defendant’s record citations to
determine whether they support the facts asserted in his Rule 7.1 Statement. See Vermont Teddy
Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (“If the evidence
4

With these considerations in mind, and unless otherwise noted, the following facts were
asserted by Defendant in his Rule 7.1 Statement (with a record citation supporting the fact
asserted) and either admitted or not addressed by Plaintiff in his opposition. (Compare Dkt. No.
64, Attach. 3 [Def.’s Rule 7.1 Statement] with Dkt. No. 67 [Plf.’s Opp’n to Def.’s Mtn.].)
Plaintiff’s Employment with the IRS and the IRS’s Employee Suggestion Program
1.

Plaintiff was employed as an ITAS with the IRS’s W&I Field Assistance Office

in Albany, New York.
2.

Amy Albee was Plaintiff's first line manager.

3.

Jean Cain was Plaintiff’s second line manager.

4.

The IRS has an Employee Suggestion Program (“ESP”), pursuant to which an

employee (or group of employees) can submit a suggestion intended to “increase productivity,
save time, and/or [save] money to better serve the [IRS].” The employee may receive a
monetary award if his or her suggestion is adopted by the IRS.5
5.

In order to submit a suggestion through the ESP, an employee must submit the

suggestion in writing on IRS’s “I Suggest” Form (Form 13380).
6.

The instructions to Form 13380 state that suggestions should be submitted to the

ESP Coordinator.

submitted in support of the summary judgment motion does not meet the movant's burden of
production, then summary judgment must be denied even if no opposing evidentiary matter is
presented.”) (internal quotation marks omitted, emphasis added); accord, N.D.N.Y. L.R.
7.1(b)(3) (“Where a properly filed motion is unopposed and the Court determines that the
moving party has met its burden to demonstrate entitlement to the relief requested therein . . . .”).
5

(Dkt. No. 64, Attach. 5, at 1 [“About the Employee Suggestion Program”].)
5

7.

In 1996 or 1997, Plaintiff proposed a program to recruit low-income high school

students from predominantly minority high schools, whom the IRS would train to help citizens
prepare tax returns, with the goal of eventually hiring these students into full-time positions after
college graduation.6
8.

In 1996, Plaintiff sent his proposal to U.S. House Representative Michael

McNulty.
9.

In 1997, Plaintiff met with faculty at the State University of New York at Albany

(“SUNY Albany”) regarding his proposal.
10.

In 2002, and again in 2004, Plaintiff submitted a suggestion through the ESP

proposing, inter alia, revisions to certain IRS forms and notices.7

6

The Court notes that, although Defendant asserts that Plaintiff suggested the
program “[i]n 1996 or 1997,” a memorandum from Plaintiff explaining his proposal bears the
handwritten date, “9-10-96.” (Dkt. No. 64, Attach. 6, at GOV_145.) In addition, the Court notes
that, in his opposition to Defendant’s motion, Plaintiff asserts that “‘ESP’ [d]id not exist in 1996
and 1997[, and D]efendant provides no evidence to prove otherwise.” (Dkt. No. 67 at 2.)
Finally, the Court notes that Defendant does not appear to assert that Plaintiff submitted his
1996/1997 suggestion through the ESP.
7

(Dkt. No. 64, Attach. 7, at GOV_283-85 [“I Suggest . . .” form, signed by Plaintiff
and dated 6/11/2002, proposing revisions to certain IRS letters and notices]; Dkt. No. 64, Attach.
8 [letter from Richard L. Rodriguez, Area Director, Field Assistance for Area 1 to Gary Barrack,
president of “NTEU Chapter 61” (apparently Plaintiff’s employee union), referencing Plaintiff’s
grievance related to his “suggestion submitted on June 11, 2002” and “resubmitted” on
December 9, 2004]; Dkt. No. 64, Attach. 9, at 1 [Settlement Agreement dated May 31, 2007,
regarding Plaintiff’s grievance alleging that he “did not receive recognition for an Employee
Suggestion . . . made on June 11, 2002 . . . and subsequent suggestions related to the original
Suggestion”].) Defendant asserts that Plaintiff’s 2002 and 2004 suggestion submissions through
the ESP program concerned “the recruitment of low-income and minority students,” but the
documents cited by Defendant in support of this assertion (i.e., Plaintiff’s “I Suggest” form,
Rodriguez’s letter, and the Settlement Agreement) do not clearly support it. It is true that
Plaintiff’s “I Suggest” form (in conjunction with revising and clarifying certain IRS forms and
notices), proposed, in a footnote, that the IRS “should try to develop” an agreement with the U.S.
Department of Health and Human Services to develop “Tax Education and Electronic
6

11.

In 2005, Plaintiff filed a union grievance in which he alleged that the IRS had

adopted his 2002 suggestion, but had not given him compensation for the suggestion.
12.

This grievance culminated in a settlement agreement between Plaintiff and the

IRS, in which Plaintiff received financial compensation and agreed to waive any further
complaints against the IRS related to the subject of his grievance.
13.

In 2010, Plaintiff learned that a program had been implemented in another IRS

office in New York State, which he viewed as the same, or substantially similar, to his minority
recruitment suggestion.8
14.

Thereafter, in April 2010, Plaintiff discussed with his first-line and second-line

managers (Albee and Cain) his earlier suggestion that the IRS develop a program to provide
short-term and long-term recruitment for low-income and minority students.9

Preparation” units in community health centers serving “primarily” low income and minority
groups. (Dkt. No. 64, Attach. 7, at GOV_285 & n.1.) Moreover, Plaintiff’s “I Suggest” form
proposes that “[c]enter personnel could be recruited to serve as VITA Volunteers . . . .” (Id.)
However, Plaintiff’s suggestion does not appear to encompass the recruitment of low-income
high school students for the purpose of eventually hiring those students as full-time IRS
employees (which, the parties agree, was the subject of Plaintiff’s 1996/1997 suggestion). As a
result, it is unclear whether the Settlement Agreement–which explicitly encompassed Plaintiff’s
2002 suggestion–also encompassed Plaintiff’s 1996/1997 suggestion.
8

(Dkt. No. 64. Attach. 11, at GOV_103 [EEO Part II Counseling Report].)
Although Defendant asserts that Plaintiff “saw an article about a program that was implemented
in the Buffalo IRS Office to hire high school students” as part of a recruitment effort, the article
he cites in support of this assertion concerns a high school in Troy, New York, and does not
specifically mention IRS recruitment. (Dkt. No. 64, Attach. 10, at GOV_150.) In any event, in
his (sworn and notarized) opposition to Defendant’s motion, Plaintiff asserts that he discovered
that “his suggestion” was implemented when “he read a newspaper article in 2010.” (Dkt. No.
67 at 1.) Based upon these considerations, the Court deems the fact set forth above (a variation
of the fact asserted by Defendant) to be undisputed.
9

(Dkt. No. 64, Attach. 24, at GOV_176 ¶ 7 [Cain Decl.].)
7

15.

After listening to Plaintiff's suggestion for recruiting minorities, Albee and Cain

advised Plaintiff that he would have to submit any suggestions through the ESP.
16.

It is not within the authority of Albee or Cain to implement Plaintiff's suggestion.

17.

Plaintiff did not submit his 2010 suggestion through the ESP, and there was

therefore no action taken on it.
18.

On May 13, 2010, Plaintiff contacted an Equal Employment Opportunity (“EEO”)

counselor regarding his suggestion related to the IRS’s diversity policy.
19.

In August 2010, Plaintiff filed a formal complaint of discrimination.10
Plaintiff’s Absences from Work

20.

Prior to September 2010, Plaintiff’s supervisors had granted his requests for

LWOP when he provided a doctor’s note to account for his tardiness or absence.
21.

On September 29, September 30, October 1, October 4, and October 7, 2010,

Plaintiff arrived late to work, did not have any accrued leave time available to use, and failed to
call Albee regarding his tardiness or follow proper procedures for requesting leave.
22.

Plaintiff provided an undated doctor’s note to account for his absences between

September 29 and October 7, 2010.
23.

The note, signed by Ryan S. Marshall, FNPC, states that Plaintiff “is under my

care for multiple medical conditions. He is on medication, which, [sic] may make him feel tired /
lethargic at times and he may require additional rest. If you have any further questions, please

10

(Dkt. No. 64, Attach. 14 [Individual Complaint of Employment Discrimination
With the Department of the Treasury, filed 8/20/10].) In his EEO Complaint, Plaintiff alleged
that IRS management “refused to take any initiative to implement diversity policy when they
refused to implement my suggestion to provide short-term and long-term recruitment for lowincome and minority students.” (Id. at GOV_62.)
8

call myself at the above list [sic] phone number.”11
24.

Albee advised Plaintiff that the doctor’s note was “not acceptable because it was

not dated and . . . it did not reference a time frame that he would need leave.”12
25.

Albee also informed Plaintiff that he could request leave without pay under the

Family Medical Leave Act (“FMLA”) if he provided proper documentation.
26.

Finally, Albee warned Plaintiff that he would be charged with AWOL if he did not

submit a Leave Without Pay (“LWOP”) request to Jean Cain.
27.

Plaintiff did not provide any other supporting medical documentation excusing his

absences.
28.

As a result, Plaintiff was charged with AWOL for September 29, September 30,

October 1, October 4, and October 7, 2010.
29.

Plaintiff was charged with AWOL 31 times in 2009, for a total of over 120 hours.13

11

(Dkt. No. 64, Attach. 15. [Doctor’s Note].)

12

(Dkt. No. 64, Attach. 23, at ¶ 8 [Albee Supp. Decl.].)

13

Defendant asserts that Plaintiff was “charged with AWOL [31] times in 2009, for
a total of 131.8 hours,” and Plaintiff does not expressly admit or deny this assertion. (Compare
Dkt. No. 64, Attach. 3, at ¶ 29 [Def.’s Rule 7.1 Statement] with Dkt. No. 67 [Plf.’s Opp’n to
Def.’s Mtn.].) In support his assertion, Defendant cites Plaintiff’s work attendance
records–specifically, a spreadsheet reflecting Plaintiff’s use of leave time (including LWOP,
AWOL, sick leave, and annual leave) in the years 2009 and 2010. (Dkt. No. 64, Attach. 16
[Plf’s Attendance Records].) While the spreadsheet generally appears to be self-explanatory, the
copy of the spreadsheet filed is somewhat difficult to read, and Defendant has not filed an
affidavit, declaration, or other statement from a person with knowledge to explain how the exact
number of AWOL hours charged (as asserted by Defendant) may be calculated from the
spreadsheet. However, from the Court’s review of the spreadsheet, it appears that Plaintiff was
charged with AWOL 31 times in 2009 (as asserted by Defendant), for a total of over 120 hours.
(Id.) Based upon the foregoing, the Court concludes that Defendant’s factual assertion is
sufficiently supported by the record evidence to the extent set forth above (and, again, this
assertion not disputed by Plaintiff to any extent).
9

30.

Plaintiff was charged with AWOL 39 times in 2010 totaling 150.3 hours.

31.

Plaintiff was permitted to take LWOP 157 times in 2009 for a total of

approximately 560 hours.14
32.

Plaintiff was permitted to take LWOP 80 times in 2010 for a total of

approximately 237 hours.15
33.

Between the time Plaintiff contacted on EEO Counselor (in May 2010) and the end

of 2010, Plaintiff was permitted to use LWOP 47 times.
C.

Undisputed Material Facts on Plaintiff’s Motion for Summary Judgment

Plaintiff’s motion for summary judgment is comprised of a single document (titled
“Plaintiff’s Dispositive Motion for Decision Without Hearing”) and contains both a “Statement of
Facts” and legal arguments. (Dkt. No. 65 [Plf.’s Mtn.] [capitalization omitted].) The “Statement
of Facts” section of Plaintiff’s motion, which the Court construes as Plaintiff’s Rule 7.1

14

(Dkt. No. 64, Attach. 16 [Plf.’s Attendance Records].) Defendant asserts that
Plaintiff was permitted to take a total of “approximately 567 hours” of LWOP time in 2009, and
Plaintiff does not expressly admit or deny this assertion. (Compare Dkt. No. 64, Attach. 3, at ¶
31 [Def.’s Rule 7.1 Statement] with Dkt. No. 67 [Plf.’s Opp’n to Def.’s Mtn.].) However, as
discussed in note 7 of this Decision and Order, the spreadsheet cited by Defendant in support of
his factual assertion is somewhat difficult to decipher. Based on the Court’s review of the
spreadsheet, the Court finds that Defendant’s factual assertion is sufficiently supported by the
record evidence to the extent set forth above (and, again, this assertion is not disputed by
Plaintiff to any extent).
15

(Dkt. No. 64, Attach. 16 [Plf.’s Attendance Records].) Defendant asserts that
“Plaintiff was permitted to take LWOP 80 times in 2010 totaling 240.5 hours,” and Plaintiff does
not expressly admit or deny this assertion. (Compare Dkt. No. 64, Attach. 3, at ¶ 32 [Def.’s Rule
7.1 Statement] with Dkt. No. 67 [Plf.’s Opp’n to Def.’s Mtn.].) However, as discussed in notes 7
and 8 of this Decision and Order, the spreadsheet cited by Defendant in support of his factual
assertion is predicated is somewhat difficult to decipher. Based on the Court’s review of the
spreadsheet, the Court finds that Defendant’s factual assertion is sufficiently supported by the
record evidence to the extent set forth above (and, again, this assertion is not disputed by
Plaintiff to any extent).
10

Statement, contains 13 sequentially numbered factual assertions. (Id. at 1-2.) Defendant has not
responded to Plaintiff’s Rule 7.1 Statement. Somewhat more problematic is the fact that, in
support of each of his factual assertions, Plaintiff has cited an “Investigative File” by reference to
“Tab” number and page number, but he has not filed the records on which he relies or provided
any express indication as to whether he is relying on the same exhibits filed by Defendant in
support of his motion for summary judgment. (Dkt. No. 65 at 1-2, ¶¶ 1-13.) This failure alone
constitutes a sufficient basis for denying Plaintiff’s motion. See N.D.N.Y. L.R. 7.1(a)(3) (“Each
fact listed [in a movant’s Statement of Material Facts] shall set forth a specific citation to the
record where the fact is established. Failure of the moving party to submit an accurate and
complete Statement of Material Facts shall result in a denial of the motion.”).
However, the factual assertions in Plaintiff’s Rule 7.1 Statement are (with a couple
exceptions) virtually identical to facts asserted in Defendant’s Rule 7.1 Statement, and the
parties thus appear to largely rely on the same universe of material facts and supporting
documents. (Compare Dkt. No. 64, Attach. 3 [Def.’s Rule 7.1 Statement] with Dkt. No. 65 at 12.) Accordingly, under the circumstances of this case (and in light of Plaintiff’s status as a pro
se civil rights litigant), the Court will deem Plaintiff’s factual assertions to have been sufficiently
supported where those assertions find support in the same record evidence filed and relied upon
by Defendant.
The Court will not recite the entirety of Plaintiff’s Rule 7.1 Statement (which, again, is
virtually identical to Defendant’s Rule 7.1 Statement and with which the parties are familiar).
Instead, the Court addresses only the following two factual assertions.

11

First, Plaintiff asserts that, at all relevant times, he was employed by the IRS not only as
an ITAS, but also as “Black Employment and Assistant Black Employment Program Manager.”
(Dkt. No. 65 at 2 ¶ 2[b].) Although Defendant also asserted that Plaintiff was an ITAS (and the
parties thus agree on this point), Plaintiff cites no record evidence (by citation to a purported
“Investigative File” or otherwise) that he was, at all relevant times, “Black Employment and
Assistant Black Employment Program Manager.” However, in response to Plaintiff’s motion,
Defendant has filed a memorandum, dated June 16, 1997, from “Chief, EEO/Diversity,” to
Plaintiff. (Dkt. No. 66, Attach. 2 [Memorandum, dated 6/16/97].) The memorandum advised
Plaintiff that, effective on that date, he was “being relieved of [his] collateral duties as the
Assistant Black Employment Program Manager for the Upstate New York District” based on
“[s]everal events [that] have transpired” demonstrating that he was “unable to adequately serve
the District in this role.” (Id.) The memorandum lists three such “events,” one of which was
that, on May 15, 1997, Plaintiff “attended an external meeting representing the [IRS] without
securing approval to act as [its] representative,” and, at the meeting, made “commitments in the
[IRS]’s name which [he] w[as] not authorized to do.” (Id.)16 As a result, the Court will treat as
uncontroverted the fact that, during the relevant times, Plaintiff was employed by the IRS as the
“Assistant Black Employment Program Manager.”
Second, Plaintiff asserts that, “[i]n 2002 and again in 2004,” he submitted a suggestion
through the ESP “regarding outreach for the Earned Income Tax Credit (EITC) program.” (Dkt.
No. 65 at 2 ¶ 7.) However, to the extent that Plaintiff is referring to the same 2002 and 2004
suggestions referenced by Defendant in his Rule 7.1 Statement, it is not entirely clear from
16

According to Defendant, the memorandum was “submitted by Plaintiff during
discovery[.]” (Dkt. No. 66 at 3 [Def.’s Opp’n Memo. of Law].)
12

Plaintiff’s “I Suggest Form” (dated June 11, 2002) that his suggestion involved only (or even
primarily) the earned income tax credit. (Dkt. No. 64, Attach. 7, at GOV_283-85.) The content
of the “I Suggest” form is discussed more fully supra, in note 6 of this Decision and Order. As a
result, the Court will not treat as uncontroverted the fact asserted by Plaintiff.
D.

Parties’ Briefing on the Pending Motions
1.

Defendant’s Motion for Summary Judgment
a.

Defendant’s Memorandum of Law

Generally, in support of his motion, Defendant argues as follows: (1) to the extent that
Plaintiff’s discrimination claims are predicated on his 1997, 2002, and/or 2004 suggestions for
minority student recruitment (or the failure to implement these suggestions), they are time-barred
under 20 C.F.R. § 1614.105(a) because (a) Plaintiff did not “initiate EEO contact” until May
2010, and (b) any discriminatory motive behind the decision not to implement his suggestions
would have accrued when his suggestions were rejected (and not when Plaintiff learned of a
similar program having been implemented in a different office, years later); (2) Plaintiff waived
and released any claims related to his suggestions for a minority student recruitment program as
part of the 2007 settlement agreement with the IRS; (3) in any event, Defendant is entitled to
judgment as a matter of law on Plaintiff’s discrimination claims because (a) the fact that his
suggestions for a minority recruitment program were not accepted or implemented did not
constitute an adverse employment action (given that it had no bearing on the terms or conditions
of his employment, job responsibilities, or pay), (b) the fact that he was charged with AWOL
instead of being permitted to use LWOP also did not constitute an adverse employment action
(given that LWOP is, by definition, unpaid, and Plaintiff has not alleged that he was terminated,

13

demoted, or lost job opportunities due to being charged with AWOL), (c) Plaintiff has identified
no direct evidence that he was subjected to discriminatory animus based on his race, age, or
gender (such as that any comments were made about these characteristics, or that they were
considered in any decision-making process related to his employment), (d) Plaintiff has
identified no evidence suggesting that similarly situated employees were treated more favorably
than he was (i.e., by receiving greater rewards for their suggestions, or being granted LWOP,
rather than charged with AWOL, under circumstances similar to Plaintiff’s), (e) Defendant had
legitimate, non-discriminatory reasons for not implementing Plaintiff’s suggestion, given that
Plaintiff did not submit his suggestion through the ESP for formal evaluation in 2010, despite
Albee’s and Cain’s suggestions that he do so, (f) Defendant had legitimate, non-discriminatory
reasons for charging Plaintiff with AWOL, given that Plaintiff violated the IRS’s leave policy
when he (i) repeatedly called in late to work, even after exhausting all of his leave and using
LWOP excessively, and (ii) provided only an undated doctor’s note stating that his medication
was “mak[ing] him feel tired and [that] he may need additional rest,” and never provided
additional documentation; and (4) Defendant is entitled to judgment as a matter of law on
Plaintiff’s retaliation claim because (a) for the same reasons discussed with respect to his
discrimination claim, there is no evidence supporting the conclusion that he suffered an adverse
employment action, or that any alleged actions taken by the IRS would not have occurred but-for
his EEO complaint, and (b) his time and attendance records establish that he was frequently
charged with AWOL many times both before and after he filed his EEO complaint. (Dkt. No.
64, Attach. 2, at 7-19 [Def.’s Memo. of Law].)

14

b.

Plaintiff’s Opposition

Generally, liberally construed, Plaintiff’s response to Defendant’s motion for summary
judgment argues as follows: (1) his discrimination claims are not time-barred because he “did
not discover that his suggestion was <[i]mplemented’ until he read a newspaper article in 2010";
(2) the 2007 settlement agreement pertained to “the Earned Income Tax Program” (rather than
minority recruitment), and did not constitute a release of claims related to his suggestion made in
1996 and/or 1997; (3) a factfinder could reasonably infer that he was subjected to discrimination,
and that Defendant’s purportedly non-discriminatory reasons for its actions were pretextual,
because (a) although he did not submit his suggestion to the ESP in 2010, he learned for the first
time in 2010 that his suggestion submitted in 1996 and/or 1997 had been implemented, (b)
similarly situated employees who were “white, young and female” were “given Equal
Opportunity awards for <implementing’” his suggestion in the IRS’s Buffalo, Syracuse, and Troy
offices, and (c) Defendant has not explained why Plaintiff’s suggestion was rejected when he
submitted it, but was implemented when it was “submitted by other white employees”; and (4)
with respect to his retaliation claim, (a) Plaintiff “requested and received advance sick leave”
before he filed his EEO complaint, but, “[a]fter” he filed his EEO complaint, “his request for
advance sick leave was denied,” and (b) Defendant did not deny “advance sick leave,” or charge
AWOL to, similarly situated employees outside of Plaintiff’s protected classes. (Dkt. No. 67 at
1-2.)17

17

Page citations to Plaintiff’s opposition to Defendant’s motion, as well as to
Plaintiff’s memorandum of law in support of his own motion, refer to the pagination generated
by CM/ECF, the Court’s electronic filing system.
15

c.

Defendant’s Reply Letter-Brief

Generally, in reply, Defendant argues as follows: (1) because “the crux” of Plaintiff’s
discrimination claims took place in 1996 or 1997, these claims are time-barred and were waived
pursuant to the 2007 settlement agreement; (2) Plaintiff’s assertion that he did not learn until
2010 that his suggestion had been implemented is belied by the 2007 settlement agreement
(which resolved his grievance, filed in 2005, that the IRS implemented his earlier suggestions
without compensating him); (3) the failure to implement his suggestions did not constitute an
adverse employment action, and Plaintiff has not identified any evidence that the terms or
conditions of his employment were impacted; (4) an assertion of “a racial imbalance in the
makeup of a workplace” is insufficient to establish discrimination; (5) with respect to Plaintiff’s
argument that his suggestion was implemented when submitted by white employees, Plaintiff has
identified no evidence that any suggestions similar to his were ever made by a white employee,
and accepted and implemented by the IRS; (6) Plaintiff’s allegation that he was denied pre-paid
sick leave after he filed his EEO complaint must be rejected because (a) it was improperly
asserted for the first time in his opposition to Defendant’s motion for summary judgment, (b) he
has identified no evidence supporting this claim, (c) his time records reflect that his usage of
“various types of leave time” (i.e., both AWOL and LWOP) were similar both before and after
he filed his EEO complaint, and (d) he does not contest that he was not present at work on the
days at issue and did not have available leave time to cover those days. (Dkt. No. 70 [Def.’s
Reply Ltr. Br.].)

16

2.

Plaintiff’s Motion for Summary Judgment
a.

Plaintiff’s Memorandum of Law

Generally, liberally construing his memorandum of law, Plaintiff argues as follows: (1)
he is a member of a protected class; (2) he was subjected to adverse employment actions in that
(a) he was terminated from his position as Assistant Black Employment Manager, (b) he was
denied monetary compensation for his suggestion to recruit low-income and minority students to
the IRS, and (c) he was declared AWOL because he “engag[ed] in EEO activity”; (3) “[n]onmanagerial employees under Floyd’s authority” (who are white, but otherwise similarly situated
to Plaintiff given their non-managerial positions) were “given EEO awards” for implementing
Plaintiff’s recruitment suggestion in other cities (namely, Buffalo, Syracuse, and Troy, New
York), but Plaintiff was not awarded or compensated;18 (4) the fact that Plaintiff did not submit
his suggestion through the ESP does not constitute a legitimate non-discriminatory reason for
Defendant’s conduct because the ESP program did not exist in 1996 or 1997, and Plaintiff
submitted his idea in the appropriate manner (namely, by proposing it to his supervisors, Floyd
and Rafferty, who did not act upon it); (5) “[n]o minority person ever worked in the Unit as a
supervisor,” a fact which suggests discriminatory animus; (6) “[t]here is no evidence that any
other employees under Albee’s supervision were charged with AWOL in 2010,” and a factfinder
could reasonably infer that charging Plaintiff with AWOL was motivated by discriminatory
animus; (7) Defendant’s rejection of his doctor’s note as insufficient to justify granting him

18

In another section of his memorandum of law, Plaintiff asserts that “[a]ll the
other” ITASs “are of a difference race, ten are female, and [Plaintiff] is the oldest employee
under Albee’s supervision,” and that “younger, white female managers disregarded his
suggestions and were attempting to remove” him. (Dkt. No. 65 at 6.)
17

LWOP during the week of September 29, 2010, was pretextual because this doctor’s note (aside
from being undated) was “substantially the same” as “earlier documentation” that he submitted,
and based on which the IRS granted him LWOP “on a regular basis during the first nine months
of 2010”; (8) his filing of an EEO complaint constituted a protected activity for purposes of his
retaliation claim; and (9) the fact that he was charged with AWOL soon after filing his EEO
complaint demonstrates both a “deviation from past practice” (i.e., granting him LWOP in earlier
months), and that Albee knew that Plaintiff filed the EEO complaint. (Dkt. No. 65 at 3-8 [Plf.’s
Memo. of Law].)
b.

Defendant’s Opposition Memorandum of Law

Generally, in response to Plaintiff’s motion, Defendant argues as follows: (1) Plaintiff is
not entitled to summary judgment with respect to his discrimination claims because (a) these
claims are predicated on events that occurred in 1996 and/or 1997, and are therefore time-barred,
(b) he waived his claims when he entered into the settlement agreement, (c) there is no evidence
that his “alleged termination” from his role as Assistant Black Employment Manager constituted
an adverse employment action for purposes of his claim (given that he was “removed for this
collateral duty” in 1997 after attending a meeting on behalf of the IRS without the IRS’s
permission), (d) there is no evidence that the fact that he was not compensated for his suggestion
constituted an adverse employment action, or that he was in fact entitled to compensation for his
suggestion, (e) there is no evidence that the fact that he was charged with AWOL for certain of
his absences constituted an adverse employment action, and he does not assert that he was
disciplined, lost promotional opportunities, or was otherwise negatively impacted by being
charged with AWOL (rather than granted LWOP), (f) there is no evidence supporting his

18

assertions that other “non-managerial employees under Floyd’s authority” were given EEO
awards for implementing Plaintiff’s recruitment suggestion in other IRS offices (i.e., Buffalo,
Syracuse, and Troy, New York), that any IRS employee ever received compensation for a
suggestion to implement any internship program, or that any such employees were similarly
situated to him, and (g) his bald assertion that there is a lack of minorities in supervisory
positions is not a basis from which a discriminatory intent may be reasonably inferred; and (2)
Plaintiff is not entitled to summary judgment with respect to his retaliation claim because (a)
record evidence demonstrates that Plaintiff was charged with AWOL for his absences many
times both before and after he filed his EEO complaint in 2010, and that he was permitted to use
LWOP numerous times after he filed his EEO complaint, (b) his “blatant abuse of the IRS’ leave
policies” (as evidenced by his frequent failure to report to work, despite having no accrued leave
time) constitutes a legitimate non-discriminatory reason for the AWOL charges. (Dkt. No. 66 at
2-6 [Def.’s Opp’n Memo. of Law].)
II.

LEGAL STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT
Under Fed. R. Civ. P. 56, summary judgment is warranted if "the movant shows that

there is no genuine dispute as to any material fact and that the movant is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(a). A dispute of fact is "genuine" if "the [record]
evidence is such that a reasonable jury could return a verdict for the [non-movant]." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).19 As for the materiality requirement, a dispute of

19

As a result, "[c]onclusory allegations, conjecture and speculation . . . are
insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.
1998) [citation omitted]. As the Supreme Court has explained, "[The non-movant] must do more
than simply show that there is some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
19

fact is "material" if it "might affect the outcome of the suit under the governing law . . . . Factual
disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255.
In addition, "[the movant] bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the . . . [record] which it believes
demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S.
317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must
come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ.
P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant
willfully fails to respond to a motion for summary judgment, a district court has no duty to
perform an independent review of the record to find proof of a factual dispute.20
Of course, when a non-movant willfully fails to respond to a motion for summary
judgment, "[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that
the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Rather, as indicated above, the Court must assure itself that, based on the undisputed material
facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v.
Comprehensive Analytical Group, Inc., 140 F. Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.);
N.D.N.Y. L.R. 7.1(b)(3). What the non-movant's failure to respond to the motion does is lighten
the movant's burden.

20

Cusamano v. Sobek, 604 F. Supp.2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby,
J.) (citing cases).
20

For these reasons, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set
forth in a movant's statement of material facts to be admitted, where (1) those facts are supported
by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that
statement.21
Similarly, in this District, where a non-movant has willfully failed to respond to a
movant's properly filed and facially meritorious memorandum of law, the non-movant is deemed
to have "consented" to the legal arguments contained in that memorandum of law under Local
Rule 7.1(b)(3).22 Stated another way, when a non-movant fails to oppose a legal argument
asserted by a movant, the movant may succeed on the argument by showing that the argument
possess facial merit, which has appropriately been characterized as a “modest” burden. See
N.D.N.Y. L.R. 7.1(b)(3) ("Where a properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate entitlement to the relief requested
therein . . . ."); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct.
30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009
WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).

21

Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a
response to the movant's Statement of Material Facts, which admits or denies each of the
movant's factual assertions in matching numbered paragraphs, and supports any denials with a
specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3).
22

See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31
(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to
oppose several arguments by defendants in their motion for summary judgment as consent by
plaintiff to the granting of summary judgment for defendants with regard to the claims that the
arguments regarded, under Local Rule 7.1[b][3]; Devito v. Smithkline Beecham Corp., 02-CV0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff’s
failure to respond to “aspect” of defendant’s motion to exclude expert testimony as “a
concession by plaintiff that the court should exclude [the expert’s] testimony” on that ground).
21

III.

ANALYSIS
A.

Whether Plaintiff’s Discrimination Claims Are Time-Barred

After carefully considering the matter, and for the reasons that follow, the Court answers
this question in the negative.
As noted above, Defendant argues that, “[t]o the extent that Plaintiff bases his
discrimination claim on the alleged failure . . . to implement his 1997, 2002, and 2004
suggestions, those claims are time-barred” because he did not initiate EEO contact until May
2010 (and thus, more than 45 days after the allegedly discriminatory act). (Dkt. No. 64, Attach.
2, at 7 [Def.’s Memo. of Law].) In response, Defendant argues that his discrimination claim is
not time-barred because “he could not allege discrimination until he became aware of a
discriminating act,” which, in this case, was the “implementation” of a program that he had
suggested in Troy, New York. (Dkt. No. 67 at 3 [Plf.’s Opp’n to Def.’s Mtn.]; see also Dkt. No.
65 at 5-6 [Plf.’s Mtn.] [“Plaintiff assumed his [1997] suggestion had not been implemented until
he read a newspaper article in 2010 about the implementation of his suggestion at Catholic High
School in Troy, New York.”].) Plaintiff asserts that his discrimination claim is “not based on
[the IRS’s] rejection but on [its] implementation” of his recruiting suggestion without
compensating him. (Dkt. No. 67 at 3.)23 A newspaper article in the evidentiary record describes

23

Plaintiff’s assertion that his discrimination claim is “not based on rejection but on
implementation” of his suggestion when it was proposed by other individual(s) (Dkt. No. 67 at
3) appears to be undermined by his EEO complaint, in which he asserted that the IRS
discriminated against him when management “refused to implement my suggestion to provide
short-term and long-term recruitment for low-income and minority students” (Dkt. No. 64,
Attach. 14 [EEO Complaint, executed 8/13/10] [emphasis added]). However, the Court
construes Plaintiff’s discrimination claim (with the utmost liberality) to allege that he was
subjected to discrimination when his rejected suggestion was accepted and implemented upon
the suggestion of other (younger, white, female) employees.
22

“a unique program that trains high school students at Catholic Central High School” to “prepare
tax returns for poor families.” (Dkt. No. 64, Attach. 10.) Moreover, the article states that
“Catholic High has run the accountant program for the last decade,” that participating students
“earn their certification from the IRS,” and that “their work is checked by an adult.” (Id.)24
EEOC regulations provide that federal employees “who believe they have been
discriminated against on the basis of race, color, . . . sex, [or] age . . . must consult a Counselor
prior to filing a complaint in order to try to informally resolve the matter.” 29 C.F.R. §
1614.105(a); accord, Smith v. Colvin, 574 F. App’x 55, 55 (2d Cir. 2014) (summary order)
(“Before initiating a federal suit under Title VII . . . a litigant must exhaust his [or her] claim in
accordance with EEOC regulations. In addition, a litigant who initiates proceedings with the
EEOC on an ADEA claim is obliged to exhaust such proceedings before filing a civil action
under the ADEA.”) (internal citations and quotation marks omitted). More specifically, “[a]n
aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter
alleged to be discriminatory[.]” 29 C.F.R. § 1614.105(a)(1). “The 45-day period serves as a
statute of limitations; thus, as a general rule, claims alleging conduct that occurred more than 45
days prior to the employee's initiation of administrative review are time-barred.” Fitzgerald v.

24

An EEO Counseling Report related to Plaintiff’s complaint states that, “on or
about May 6, 2010, someone left” on Plaintiff’s desk “an article about a program that was being
started” in the IRS’s Buffalo office and which “would allow high school students to obtain
certain jobs at the IRS during the summer” with the prospect of full time employment after
college graduation. (Dkt. No. 64, Attach. 11, at GOV_103.) The EEO Counseling Report notes
that “[t]he aggrieved stated that the program is going to use students from Catholic High School
in Albany, New York,” and that “someone stole his idea and implemented it using Catholic High
School, which is a majority White school.” (Id.) The article in the record (which concerns a
program at Catholic High School in Troy, not Albany) does not mention or discuss any IRS
career recruitment in relation to the program.
23

Henderson, 251 F.3d 345, 359 (2d Cir. 2001). This time period may be extended where, inter
alia, “the individual shows that he or she was not notified of the time limits and was not
otherwise aware of them, [or] he or she did not know and reasonably should not have been [sic]
known that the discriminatory matter or personnel action occurred[.]” 29 C.F.R. §
1614.105(a)(2). “In other words, the time for contacting a counselor, in some cases, begins to
run when the plaintiff reasonably suspects discrimination.” Smith, 574 F. App’x at 56.
However, “the plaintiff bears the burden of showing extraordinary circumstances to justify such
tolling.” Barbarito v. McHugh, 11-CV-0179, 2013 WL 2120402, at *3 (N.D.N.Y. May 15,
2013) (Sharpe, C.J.) (citing Boos v. Runyon, 201 F.3d 178, 184-85 [2d Cir. 2000]).
To the extent that Plaintiff’s discrimination claim may be understood to be predicated
solely upon the rejection of his suggestion as first made in 1996 or 1997, Defendant is correct
that his claim is time-barred under 29 C.F.R. § 1614.105(a)(1). (Dkt. No. 64, Attach. 2, at 7-8
[Def.’s Memo. of Law].) However, Plaintiff asserts that this is not his claim (i.e., that he is not
claiming that the IRS’s rejection of his suggestion approximately 20 years ago was, in itself, due
to an animus related to his race, gender, or age). Rather, Plaintiff argues that Defendant
discriminated against him by implementing the same suggestion that he made (more than 10
years ago and as many as 20 years ago), when made by “employees who are white, young and
female” at some later point in time. (Dkt. No. 67 at 3.) The Court finds this distinction
(seemingly drawn for the purpose of avoiding Defendant’s limitations-period argument) to be, at
least in part, a semantical distinction. An award given to other employees for an implemented
suggestion, considered in isolation, would appear to have relation to, or effect upon, Plaintiff or
his employment. What Plaintiff appears to be arguing is (1) that Defendant’s discriminatory

24

animus only manifested itself when Defendant allegedly implemented Plaintiff’s suggestion after
it was suggested by other (young, white, female) employees, (2) that he only learned of this fact
in 2010, when he read the 2010 article, and (3) that, for this reason, the EEOC’s 45-day rule
should be tolled. The Court is skeptical of this argument because the “personnel action,” at least
arguably, occurred in 1996/1997. However, under the circumstances (and for the sake of
argument), the Court will assume that Plaintiff has raised a genuine dispute of material fact with
respect to whether “he did not know and reasonably should not have . . . known that the
discriminatory matter or personnel action occurred” such that tolling under 29 C.F.R. §
1614.105(a)(2) is appropriate.25 As a result, Defendant’s motion for summary judgment on
statute-of-limitations grounds is denied at this time.26
B.

Whether Plaintiff Waived His Discrimination Claims Pursuant to the
Settlement Agreement

After carefully considering the matter, and for the reasons set forth below, the Court
answers this question in the negative.

25

See generally Pauling v. Sec’y of Dep’t of Interior, 160 F.3d 133, 136-37 (2d Cir.
1998) (concluding that an issue of fact existed with respect to whether plaintiff had notice of
limitations period under 29 C.F.R. § 1614.105[a] and whether tolling would be appropriate on
that basis); Carby v. Holder, 11-CV-5775, 2013 WL 3481722, at *6 (S.D.N.Y. July 10, 2013)
(holding that, with respect to tolling based on lack of notice of applicable time limit, “the [c]ourt
cannot say that a jury would be unreasonable in concluding that the plaintiff was unaware of the
45-day time limit”).
26

In his reply letter-brief, Defendant argues that Plaintiff’s assertion that he did not
learn until 2010 that his suggestion had been implemented is belied by his 2005 grievance and
the 2007 settlement agreement. (Dkt. No. 70 at 1 [Def.’s Reply Ltr. Br.].) However, Plaintiff
appears to be correct that “the 2007 settlement agreement did not pertain . . . to minority
recruitment.” (Dkt. No. 67 at 3.) A copy of Plaintiff’s 2005 grievance does not appear to have
been filed, and the settlement agreement states that the grievance alleged that the IRS failed to
recognize Plaintiff for his suggestion made on June 11, 2002 (“and subsequent suggestions
related to the Original Suggestion”). (Dkt. No. 64, Attach. 9, at GOV_271 [Settlement
Agreement].) As noted above, the suggestion that Plaintiff submitted on June 11, 2002, does not
appear to involve a proposal for IRS recruitment. See, supra, note 6 of this Decision and Order.
25

As noted above, Defendant argues that, pursuant to the 2007 settlement agreement
(which resolved his 2005 grievance), Plaintiff waived his present discrimination claims. (Dkt.
No. 64, Attach. 2, at 8-10 [Def.’s Memo. of Law].) However, the settlement agreement dealt
expressly with the suggestion that he submitted on June 11, 2002, “and subsequent suggestions
related to” that suggestion. (Dkt. No. 64, Attach. 9, at GOV_271.) As discussed above,
Plaintiff’s June 11, 2002, suggestion does not appear to bear any relation to minority recruiting,
which is the subject of his EEO complaint and Second Amended Complaint. Moreover, a copy
of Plaintiff’s 2005 grievance does not appear to have been filed by either party in support of their
respective motions. While the settlement agreement contains a very broad provision requiring
Plaintiff to “waive any and all rights or claims as to matters raised in the instant grievance, and
all other outstanding or potential complaints [or] grievances . . . not otherwise identified herein
arising from matters occurring prior to” its execution, it also provided that Plaintiff “does not
waive any rights of claims that may arise after the date” of its execution. (Dkt. No. 64, Attach. 9,
at GOV_272, ¶ 7[c], [d] [emphasis added].) “In the absence of a clear right or obligation set
forth in the language of a contract–and a settlement agreement is a contract–a court should not
lightly find an implied right or obligation.” Dash v. Bd. of Educ. of City Sch. Dist. of New York,
15-CV-2013, 2017 WL 838226, at *10 (E.D.N.Y. Mar. 3, 2017) (internal quotation marks
omitted).
Accordingly, the Court cannot conclude, as a matter of law and based upon the record
evidence before it, that Plaintiff waived his right to assert his present (federal statutory)
discrimination claims by entering into the settlement agreement, which dealt with an apparently
unrelated grievance.

26

However, the Court reaches a different conclusion with respect to his 2002 and 2004
suggestions. In his opposition (which, in any event, contains arguments related to his 1996/1997
suggestion, and not his 2002/2004 suggestions), Plaintiff expressly acknowledges that the 2007
settlement agreement “pertained to the Earned Income Tax Program.” (Dkt. No. 67 at 1.)
Moreover, in his Second Amended Complaint, Plaintiff alleges that he received compensation
after settling his grievance related to the 2002 suggestion. (Dkt. No. 55 at 4.) As a result, to the
extent that Plaintiff may be understood to argue that the IRS’s refusal to implement his 2002
suggestion was discriminatory, he has waived this claim. Moreover, even if Plaintiff had not
waived this claim, the Court would lack jurisdiction over it because his EEO complaint
referenced only IRS management’s alleged failure to implement his “suggestion to provide
short-term and long-term recruitment for low-income and minority students” (and made no
reference to any other suggestion he has ever submitted). (Dkt. No. 64, Attach. 14, at GOV_62.)
See also Fitzgerald, 251 F.3d at 359 (“If a claimant has failed to pursue a given claim in
administrative proceedings, the federal court generally lacks jurisdiction to adjudicate that
claim.”). Finally, even if Plaintiff had not waived any claim related to his 2002/2004
suggestions and the Court had jurisdiction over such a claim, Plaintiff has failed to adduce
evidence from which a factfinder could reasonably infer that the failure to implement those
suggestions was the result of discriminatory animus.
C.

Whether Defendant Is Entitled to Judgment as a Matter of Law with Respect
to Plaintiff’s Discrimination Claims

After carefully considering the matter, the Court answers this question in the affirmative.
More specifically, the Court accepts Defendant’s third argument in his memorandum of law and
his related arguments in his reply letter-brief. (Dkt. No. 64, Attach. 2, Part III, at 10-16 [Def.’s
27

Memo. of Law]; Dkt. No. 70 at 1-2 [Def.’s Reply Ltr. Br.].) To those arguments, the Court adds
two points.27
First, the Court finds that the record does not contain any basis from which it may be
reasonably inferred that Plaintiff was subjected to an adverse employment action for purposes of
his discrimination claim. “An adverse employment action is ‘a materially adverse change in the
terms and conditions of employment,’ for example, ‘termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other indices unique to a particular
situation.’” Rowe v. Jagdamba, Inc., 302 F. App’x 59, 62 (2d Cir. 2008) (quoting Sanders v.

27

Employment discrimination claims under Title VII and the ADEA are “analyze[d]
. . . using the now-familiar burden-shifting framework established by” McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d
128, 136 (2d Cir. 2016). To establish a prima facie case, a plaintiff must show the following:
“(1) that he [or she] belonged to a protected class; (2) that he [or she] was qualified for the
position he held; (3) that he [or she] suffered an adverse employment action; and (4) that the
adverse employment action occurred under circumstances giving rise to an inference of
discriminatory intent.” Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 151 (2d Cir. 2012)
(quoting Feingold v. New York, 366 F.3d 138, 152 [2d Cir. 2004]) (applying this test to Title VII
disparate treatment claim); accord, Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466-67
(2d Cir. 2001) (applying the same test to ADEA claim). If the plaintiff establishes a prima
facie case, “the burden of production . . . shift[s] to the defendant to offer a legitimate,
nondiscriminatory rationale for its actions.” Kovaco, 834 F.3d 136; accord, Chin, 685 F.3d at
151; Abdu-Brisson, 239 F.3d at 466. “If the defendant satisfies its burden of production, then the
presumption raised by the prima facie case is rebutted and drops from the case, such that [a]t the
final stage, the plaintiff then has the opportunity to demonstrate that the proffered reason was not
the true reason for the employment decision.” Kovaco, 834 F.3d at 136 (internal quotation
marks omitted). “[A] plaintiff bringing a disparate-treatment claim pursuant to the ADEA must
prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged
adverse employment action and not just a contributing or motivating factor.” Gorzynski v.
JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010) (quoting Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167, 180 [2009]); accord, e.g., Varno v. Canfield, 664 F. App’x 63, 65 (2d Cir. 2016)
(summary order) (“Unlike Title VII claims, ADEA claims require that age be the ‘but-for’ cause
of the employer's adverse decision.”) (internal quotation marks omitted).
28

N.Y. City Human Res. Admin., 361 F.3d 749, 755 [2d Cir. 2004] [quotation marks and alteration
omitted]). Even assuming that the denial of such a monetary award for an employee suggestion
through the ESP may, under certain circumstances, constitute an adverse employment action, the
record does not support the conclusion that Plaintiff was entitled to such an award here. More
specifically, in his opposition to Defendant’s motion, Plaintiff asserts that (1) the ESP did not
exist in 1996 or 1997 (i.e., at the time he made his minority recruitment suggestion), and (2) the
2007 settlement agreement (which concerned Plaintiff’s 2002 and 2004 ESP suggestions) “did
not pertain . . . to minority recruitment.” (Dkt. No. 67 at 2-3.) Considering Plaintiff’s assertions
in combination with the fact that he did not submit his minority recruitment suggestion through
the ESP in 2010 (when he discussed his suggestion with Albee and Cain, who suggested that he
do so) (Fact. No. 17 in Part I.B. of this Decision and Order), it does not appear that Plaintiff ever
formally submitted his suggestion at a time when the IRS provided monetary award incentives
for employee suggestions. The record evidence does not suggest otherwise.28
Second, even assuming Plaintiff has raised a genuine dispute of material fact with respect
to having suffered an adverse employment action, he has not identified any basis for reasonably
inferring that the adverse action was undertaken due to discriminatory animus. The record is

28

In his own motion, Plaintiff argues that his “[t]ermination from his position as
Assistant Black Employment Manager” by Sharon Floyd, EEO Director, also constituted an
adverse employment action. (Dkt. No. 65 at 4 [Plf.’s Mtn.].) The Court concludes that any
claim predicated upon this action must be dismissed because (1) given that this occurred in 1997,
any claim related thereto is time-barred, (2) the record contains no evidence about what the role
of Assistant Black Employment Manager entailed, or what (if any) benefits Plaintiff lost when he
was removed from that role, and (3) the June 16, 1997, memorandum from Floyd to Plaintiff,
advising him that he was being “relieved of [his] collateral duties,” provides three separate
performance-related reasons for this action, which, the Court finds, constitute a legitimate, nondiscriminatory reason for the removal and which Plaintiff has failed to rebut with any evidence
of pretext. (Dkt. No. 66, Attach. 2.)
29

devoid of any direct evidence of animus based on his race, gender, or age (such as comments by
supervisors or coworkers, or any overt indication that these characteristics were considered with
respect to any action taken regarding his employment). Moreover, although Plaintiff appears to
cast his claim as arising from disparate treatment, he has not sufficiently identified anyone from
outside of his protected groups who were treated more favorably. "A plaintiff relying on
disparate treatment evidence 'must show [he or] she was similarly situated in all material respects
to the individuals with whom she seeks to compare herself.'" Mandell v. Cty. of Suffolk, 316
F.3d 368, 379 (2d Cir. 2003) (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 [2d Cir.
2000]); accord, Shumway v. United Parcel Serv., 118 F.3d 60, 64 (2d Cir. 1997). Here, Plaintiff
argues that Defendant “award[ed] benefits to other similarly situated employees who are white,
young and female” (Dkt. No. 67 at 3), but has not adduced admissible record evidence that either
identifies any other coworker in greater detail or establishes that any such coworker was subject
to the same workplace standards, performed similar job functions, or shared any other
"objectively identifiable basis for comparability." Graham, 23 F.3d at 40 (internal quotation
marks omitted); accord, e.g., Hongyan Lu v. Chase Inv. Servs. Corp., 412 F. App'x 413, 417-18
(2d Cir. 2011) (summary order) (noting that plaintiff "offer[ed] 'little more than conclusory
statements' and 'sweeping allegations unsupported by admissible evidence'" that similarly
situated male coworkers were treated differently). Notably, the record does not contain any
evidence that any minority recruitment program implemented by the IRS had its genesis in a
suggestion proposed by any other employee (much less that any such employee was white,
female, and/or younger than Plaintiff and similarly situated to him).

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For each of these reasons, as well as those set forth in Defendant’s memorandum of law
and reply letter-brief, the Court concludes that Defendant is entitled to judgment as a matter of
law with respect to Plaintiff’s discrimination claims.
D.

Whether Defendant Is Entitled to Judgment as a Matter of Law with Respect
to Plaintiff’s Retaliation Claim

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons set forth in Defendant’s memorandum of law and reply letter-brief. (Dkt. No. 64,
Attach. 2, at 17-19 [Def.’s Memo. of Law]; Dkt. No. 70 at 1-2 [Def.’s Reply Ltr. Br.].) To those
reasons, the Court adds two points.29
First, although filing an EEO complaint (as Plaintiff did here) constitutes a protected
activity, Plaintiff has not identified any evidence from which it may be reasonably inferred that
his being charged with AWOL (rather than receiving LWOP) on the dates in question constitutes
a materially adverse action for purposes of his retaliation claim. See Hicks v. Baines, 593 F.3d

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“Retaliation claims under Title VII and the ADEA are also analyzed under the
McDonnell Douglas burden-shifting test[.]” Gorzynski, 596 F.3d at 110; accord, e.g., Sellick v.
Agency-Castle Point, 09-CV-6616, 2010 WL 2813431, at *11 (S.D.N.Y. July 16, 2010)
(“Retaliation claims under Title VII and the ADEA are analyzed under the same burden-shifting
framework employed for considering claims of discrimination.”). “To establish a prima facie
case of retaliation, an employee must show that (1) [he or] she was engaged in protected activity;
(2) the employer was aware of that activity; (3) the employee suffered a materially adverse
action; and (4) there was a causal connection between the protected activity and that adverse
action.” Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012). “In order to succeed on a
retaliation claim after a defendant has established a legitimate, non-discriminatory reason for the
adverse action, the plaintiff must present evidence that retaliation was the ‘but-for’ cause of the
action.” Varno, 664 F. App’x at 66 (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct.
2517, 2533 [2013] [“Title VII retaliation claims must be proved according to traditional
principles of but-for causation.”]). Moreover, “[a]lthough the Second Circuit has not definitively
determined whether the ‘but for’ causation standard applies to retaliation claims under the
ADEA, several courts in this Circuit accept that, in light of recent Supreme Court decisions, the
‘but for’ analysis is appropriate.” Ulrich v. Moody’s Corp., 13-CV-0008, 2017 WL 1232709, at
*14 (S.D.N.Y. Mar. 31, 2017) (citation omitted) (collecting cases).
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159, 165 (2d Cir. 2010) (“Actions are materially adverse if they are harmful to the point that they
could well dissuade a reasonable worker from making or supporting a charge of
discrimination.”) (internal quotation marks omitted). Although the IRS’s Leave Policy
Handbook contemplates that “AWOL is not considered a disciplinary action [but] may form the
basis for future disciplinary action” (Dkt. No. 64, Attach. 18, at GOV_387), the record does not
support the conclusion that Plaintiff was disciplined or that he was terminated, was demoted, or
suffered any other employment-related consequences as a result of being charged with AWOL
on the dates at issue (or, for that matter, on any dates). Simply stated, being charged with
AWOL would not have dissuaded a reasonable worker from making or supporting a charge of
discrimination.
Second, even if charging Plaintiff with AWOL (and not granting him LWOP) constituted
a materially adverse action, the record does not reasonably suggest that the AWOL charges were
causally connected to Plaintiff’s EEO complaint. As an initial matter, Plaintiff argues that
Defendant “does [not] allege that other similarly situated employees were charged with
AWOL[.]” (Dkt. No. 67 at 4.) At the first step of the McDonnell Douglas framework,
Defendant is not required to show that similarly situated employees were treated the same as
Plaintiff; rather, establishing that similarly situated employees were treated differently is one
means by which a plaintiff may attempt to demonstrate causation. See Hicks, 593 F.3d at 170
(explaining that “[p]roof of causation” may include “circumstantial evidence such as disparate
treatment of fellow employees who engaged in similar conduct”). Plaintiff has not identified any
such evidence in this case. Moreover, although Plaintiff notes that he was charged with AWOL
on certain dates in September 2010 and October 2010, in relatively close temporal proximity to

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the filing of his EEO complaint, he does not dispute that (1) he failed to properly request leave
for the dates at issue, (2) he was charged with AWOL on numerous occasions before he filed his
EEO complaint, and (3) he was granted LWOP on numerous occasions after he filed his EEO
complaint. Fact Nos. 21, 29-33 in Part I.B. of this Decision and Order.30 Based on these facts,
and in the absence of any other evidence of retaliatory motive (direct or circumstantial), the
Court concludes that the record provides no basis from which it may be reasonably inferred that
Plaintiff’s EEO complaint was the but-for cause of his being charged with AWOL on the handful
of dates singled out in his Second Amended Complaint.
For each of these reasons, as well as those set forth in Defendant’s memorandum of law
and reply letter-brief, the Court concludes that Defendant is entitled to judgment as a matter of
law with respect to Plaintiff’s retaliation claim.
Based upon the foregoing, the Court concludes that Defendant has established its
entitlement to summary judgment with respect to each of Plaintiff’s claims, and, in response,
Plaintiff has failed to raise a dispute of material fact. Defendant’s motion for summary judgment
is therefore granted, and Plaintiff’s motion for summary judgment is denied.
ACCORDINGLY, it is
ORDERED that the Clerk of the Court shall substitute Steven T. Mnuchin for Secretary
of the Treasury Jacob J. Lew as the Defendant in this action, pursuant to Fed. R. Civ. P. 25(d);
and it is further

30

Indeed, Plaintiff’s attendance records reflect that he was granted LWOP (among
other times) three times during the week ending on October 2, 2010, five times during the week
ending on October 9, 2010, and four times during the week ending on November 27, 2010. (Dkt.
No. 64, Attach. 16, at GOV_333.)
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ORDERED that Defendant’s motion for summary judgment (Dkt. No. 64) is
GRANTED; and it is further
ORDERED that Plaintiff’s motion for summary judgment (Dkt. No. 65) is DENIED;
and it is further
ORDERED that Plaintiff's Second Amended Complaint (Dkt. No. 55) is DISMISSED in
its entirety; and it is further
ORDERED that the Clerk of the Court shall enter judgment in favor of Defendant and
close this case.
Dated: August 30, 2017
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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