Johnson v. Lew et al
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,
JACOB J. LEW, Sec’y, Dep’t of Treasury, Internal
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.
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).
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.)
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.)
Page citations to Plaintiff’s Second Amended Complaint refer to the pagination
generated by CM/ECF, the Court’s electronic filing system.
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.
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
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
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
Plaintiff was employed as an ITAS with the IRS’s W&I Field Assistance Office
in Albany, New York.
Amy Albee was Plaintiff's first line manager.
Jean Cain was Plaintiff’s second line manager.
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
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).
The instructions to Form 13380 state that suggestions should be submitted to the
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 . . . .”).
(Dkt. No. 64, Attach. 5, at 1 [“About the Employee Suggestion Program”].)
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
In 1996, Plaintiff sent his proposal to U.S. House Representative Michael
In 1997, Plaintiff met with faculty at the State University of New York at Albany
(“SUNY Albany”) regarding his proposal.
In 2002, and again in 2004, Plaintiff submitted a suggestion through the ESP
proposing, inter alia, revisions to certain IRS forms and notices.7
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.
(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
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.
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.
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
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.
(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.
(Dkt. No. 64, Attach. 24, at GOV_176 ¶ 7 [Cain Decl.].)
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.
It is not within the authority of Albee or Cain to implement Plaintiff's suggestion.
Plaintiff did not submit his 2010 suggestion through the ESP, and there was
therefore no action taken on it.
On May 13, 2010, Plaintiff contacted an Equal Employment Opportunity (“EEO”)
counselor regarding his suggestion related to the IRS’s diversity policy.
In August 2010, Plaintiff filed a formal complaint of discrimination.10
Plaintiff’s Absences from Work
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.
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.
Plaintiff provided an undated doctor’s note to account for his absences between
September 29 and October 7, 2010.
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
(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.)
call myself at the above list [sic] phone number.”11
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
Albee also informed Plaintiff that he could request leave without pay under the
Family Medical Leave Act (“FMLA”) if he provided proper documentation.
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.
Plaintiff did not provide any other supporting medical documentation excusing his
As a result, Plaintiff was charged with AWOL for September 29, September 30,
October 1, October 4, and October 7, 2010.
Plaintiff was charged with AWOL 31 times in 2009, for a total of over 120 hours.13
(Dkt. No. 64, Attach. 15. [Doctor’s Note].)
(Dkt. No. 64, Attach. 23, at ¶ 8 [Albee Supp. Decl.].)
Defendant asserts that Plaintiff was “charged with AWOL  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).
Plaintiff was charged with AWOL 39 times in 2010 totaling 150.3 hours.
Plaintiff was permitted to take LWOP 157 times in 2009 for a total of
approximately 560 hours.14
Plaintiff was permitted to take LWOP 80 times in 2010 for a total of
approximately 237 hours.15
Between the time Plaintiff contacted on EEO Counselor (in May 2010) and the end
of 2010, Plaintiff was permitted to use LWOP 47 times.
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
(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).
(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).
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
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.
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
According to Defendant, the memorandum was “submitted by Plaintiff during
discovery[.]” (Dkt. No. 66 at 3 [Def.’s Opp’n Memo. of Law].)
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.
Parties’ Briefing on the Pending Motions
Defendant’s Motion for Summary Judgment
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,
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].)
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
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