Lorber v. Lew et al
Filing
67
MEMORANDUM OPINION AND ORDER re: 42 MOTION to Dismiss Amended Complaint. filed by Jacob Lew, Sharon R. Porter, Pamela J. Drenthe, David W. Horton, Rosemary J. Sereti. For the reasons stated above, Defendants' motion to dismiss co unts two, four, and six is GRANTED. Adjudication of count five is STAYED pending the outcome of the cases that are now before the Second Circuit. The Clerk of Court is directed to terminate the motion at ECF No. 42. (Signed by Judge Kimba M. Wood on 2/13/2017) (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DANIEL LORBER,
USDC SDNY
DOCUMENT
ELECTRO NI CALLY FILED
DOC#:
DATE FILED: Qlt
S-/ t:r-
Plaintiff,
-against-
15 Civ. 9995 (KMW) (BCM)
JACOB LEW, SECRETARY DEPARTMENT OF
TREASURY, INTERNAL REVENUE SERVICE;
ROSEMARY J. SERETI (in her individual capacity);
DAVID W. HORTON (in his individual capacity);
SHARON R. PORTER (in her individual capacity); AND
PAMELA J. DRENTHE (in her individual capacity),
MEMORANDUM OPINION
AND ORDER
Defendants.
KIMBA M. WOOD, District Judge:
Plaintiff, Daniel Lorber, an openly gay male who was employed as a manager at the
Internal Revenue Service ("IRS"), brings this action for discrimination and retaliation against
Jacob Lew, the then-Secretary of the Treasury, under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and against four individuals at the IRS in their individual capacityRosemary J. Sereti, David W. Horton, Sharon R. Porter, and Pamela J. Drenthe--pursuant to
Bivens v. Six Unknown Named Agents ofFed. Bureau of Narcotics, 403 U.S. 388 (1971).
Defendants move to dismiss four counts of Plaintiffs amended complaint. For the reasons stated
below, Defendants' motion is GRANTED in part and STAYED in part.
I. BACKGROUND 1
At all relevant times, Plaintiff worked as a Supervisory Internal Revenue Agent-a Front
Line Manager position-in the Large Business and International ("LBJ") division, International
Individual Compliance ("IIC") subdivision, of the IRS. Am. Compl.
1 The
if~
18, 44, ECF No. 39.
following facts are taken from the Amended Complaint and are assumed to be true for purposes of
Defendants' motion to dismiss. See Tellabs, Inc. v. Makar Issues & Rights, Ltd., 551U.S.308, 322 (2007); see also
Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) ("When considering a mQtion to di5mi55 ...
for failure to state a cause of action, a court must accept as true all material factual allegations in the complaint.").
Supervisory Internal Revenue Agents are managed by Senior Managers, who oversee day-to-day
operations of their subdivision. Id.
if 23. Under IRS merit promotion rules, the IRS may not
non-competitively promote a Front Line Manager to a Senior Manager. Id.
if 52. A Front Line
Manager can receive a temporary assignment as a Senior Manager ifthat individual is a member
of the Senior Manager Readiness Program ("SMRP"), id.
if 29, but participation in the SMRP is
not a guarantee of a permanent Senior Manager position, id.
if 30, and neither participation in nor
graduation from the SMRP is required to become a Senior Manager, id.
if 31.
Prior to July 21, 2014, a potential candidate for a Senior Manager position was required
to obtain an Evaluation of Managerial Potential ("EMP"), in which the candidate's immediate
manager would rank the employee and the candidate's second-level manager would approve or
disapprove the rankings. Id.
ifif 32, 33, 35. The score in each category could be "Ready Now,"
"Ready in 1-2 years," or "Ready in 3-5 years." Id.
ir 34.
After July 21, 2014, a potential
candidate was instead required to obtain a Leadership Succession Review ("LSR") from his
immediate manager, which would then be approved or disapproved by the candidate's secondlevel manager. Id.
irir 39-41.
In April 2012, the IRS announced that Carmen Hahn, a heterosexual female employee,
was selected to temporarily act in a Senior Manager position, for which the IRS indicated an
individual from SMRP would be chosen. Id.
if 51, 52, 56. In June 2013, Plaintiff was made
aware of an intranet page that listed IRS Front Line Managers and other employees who were in
or had graduated from the SMRP. Id. if 55. Plaintiff discovered that Hahn had never participated
in the SMRP. Id.
ir 56. Plaintiff alleges that Hahn was selected for the Senior Manager position
by LBI executive Sereti, the then-Director of IIC, who was aware at the time of Hahn's
promotion that (1) Hahn was not a SMRP candidate, (2) there were male SMRP candidates, (3)
2
Hahn was not rated "Ready Now" on her EMP, and (4) other, more qualified male candidates
were rated "Ready Now." Id.
i!i! 60-62.
When Hahn became Plaintiffs manager, she rated him as not being "Ready Now,"
without an objectively reasonable basis, despite Plaintiffs former manager's assessment that he
was ready for senior management. Id. iI 65, 73. This rating prevented Plaintiff from making the
"best qualified" list for several Senior Manager positions. Id if 64. Plaintiff claims that Hahn
gave him this rating to make him less likely to be chosen for a permanent Senior Manager
position, for which females were also applying. Id. if 66. Indeed, Plaintiff believes that Hahn
has never rated a female employee as being anything less than ''Ready Now" for Senior Manager
positions. Id. iI 68.
Plaintiff alleges that between approximately 2012 and 2014, Sereti was the selecting
official for eleven positions, of which ten went to females. Id. if 69-70. In March 2013, the IRS
cancelled a Vacancy Announcement, for which Plaintiff had made the "best qualified" list, to
prevent him from obtaining a Senior Manager position. Id. if 74. Instead, a female employee,
Jackie Rookwood, was non-competitively placed in the position. Id. iI 75. In April 2013, a
female employee, Brenda Jackson, was non-competitively promoted to a Senior Manager
position. Id. ifiI 79-82. The IRS also non-competitively placed Roseanne Perricelli, another
female employee, into a Senior Manager position. Id. iI 83.
Plaintiff also alleges that less qualified heterosexual male candidates were chosen for
promotion over more qualified homosexual male candidates, such as Plaintiff Id. iI 84. In
September 2012, Horton, a heterosexual male and the then-Director of IIC, non-competitively
selected Aureo Nieves, also a heterosexual male, for a Senior Manager position for which he was
not eligible. Id. iiiI 86-88. Horton knew that Nieves was less qualified than Christopher Holmes,
3
a gay man, who was not considered for the position. Id. iii! 90-91. In June 2013, Plaintiff
discovered that Ted Curtis, another heterosexual male, was non-competitively selected for a
Senior Manager position, for which Plaintiff was substantially more qualified. Id. if 92-93.
Plaintiff was not considered for this position because the IRS allegedly did not want a
homosexual male in a Senior Manager position. Id. if 95.
This same preference for heterosexual men over homosexual men is evidenced with
respect to positions for which competition was numerically scored. For instance, in July 2012,
Plaintiff applied for a Senior Manager position and received a ranked score of 91, which was the
minimum qualifying score, but Horton and Porter directed that Plaintiff be hold that he did not
make the cutoff score and was not qualified for the position. Id.
mf 100-04.
Similarly, in June
2013, Plaintiff applied for another Senior Manager position for which he was well qualified. Id.
iii! 105-06. Horton and Judith McNamara were involved in the selection process. Id. if l 07.
Plaintiff was told that he did not make the "Best Qualified" score for the position, and a
heterosexual male, Robert Benesch, was selected for the position. Id. iii! l 08-09. In July 20 l 4,
Plaintiff was informed that the "Best Qualified" cutoff was set at a number that guaranteed that
his score would not be included in the list of eligible applicants to be interviewed. Id. ii I l 0.
Plaintiff alleges that McNamara has made comments to other Frontline Managers that Plaintiff
would never be a Senior Manager. Id. if l l l.
Plaintiff participated in an Equal Employment Opportunity ("EEO") case filed by a
coworker in March 2013, and filed his own EEO complaint in July 2013. Id. iii! l 13, l 14.
Plaintiff alleges that Horton, Sereti, Drenthe, Jeannie Fisher, Hahn, and Porter engaged in a
pattern ofretaliatory behavior against Plaintiff as a result of those activities. Id. if l l 5. For
instance, in March 20 l 3, the IRS cancelled a Senior Manager vacancy announcement for which
4
Plaintiff would have been the best qualified candidate. Id. ir 116. That same month, Hahn
"distributed information about Plaintiff's disability and reasonable accommodation request to
one of the Plaintiffs employee who had no need to know the information so as to humiliate,
embarrass, and discredit Plaintiff as a Front Line Supervisor." Id. if 117. In August 2013,
Barbara Tobias, Plaintiffs supervisor at that time, forwarded her assessment of Plaintiff to
Drenthe, a senior executive, who told Tobias that she expected Tobias not to send her a "high
appraisal" of Plaintiff. Id. irir 118-26. When Tobias sent a "high assessment" of Plaintiff to
Horton, Plaintiffs second-level supervisor, he refused to sign-off on the assessment. Id. irir 12729. Horton also worked with Fisher, Plaintiffs supervisor effective September 2013, to lower
Plaintiffs rating and annual evaluation. Id. irir 130-132. Plaintiffs ratings were lowered and
negative language was added to his evaluation. Id. if 132, 134. These ratings are "instrumental
to promotion opportunities, raises, work assignments, bonuses, temporary details and other terms
and conditions of Plaintiffs employment." Id. ir 133.
Other retaliatory acts followed. Id. ir 135. In December 2013, Plaintiff was excluded
from a managers meeting with the LBJ Deputy Commissioner. Id. ir 136. Also in December
2013, the IRS purposefully placed a Senior Manager position outside of Plaintiffs post of duty
to prevent him from applying for the position. Id. if 13 7. In January 2014, Fisher disclosed
information about Plaintiff's personal and private medical condition to other Front Line
Managers who had no need to know, and Fisher harassed Plaintiff about his personal leave. Id.
irir 138-39.
In support of his hostile work environment claim, Plaintiff alleges that he has been:
questioned about his personal leave usage; accused of being Absent Without Leave (AWOL);
excluded from meetings; ridiculed based on his disability, his request for a reasonable
5
accommodation, and his performance evaluation; falsely accused of being late in completing
assignments; given a lowered LSR review; not assigned substantial daily responsibilities or
duties; assigned minor and non-substantive tasks inconsistent with his job description; had
employees removed from his supervision; prohibited from assigning tasks to his subordinate
employees or review their work; and not selected for two vacancy announcements for Senior
Manager positions. Id.
~
157. Plaintiff alleges that similarly situated females did not have these
actions taken against them. Id.
Defendants filed their partial motion to dismiss on June 28, 2016. ECF No. 42. The case
was reassigned to the undersigned on November 22, 2016.
II. LEGAL STANDARD
In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient
factual allegations "to state a claim to relief that is plausible on its face." Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible "when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court
accepts as true all well-pleaded factual allegations a'nd draws all reasonable inferences in favor
of the non-moving party. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 78 (2d
Cir. 2015).
"A case is properly dismissed for lack of subject matter jurisdiction under Rule
12(b)(l) when the district court lacks the statutory or constitutional power to adjudicate it."
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The party asserting subject
matter jurisdiction carries the burden of establishing, by a preponderance of the evidence, that
jurisdiction exists. Morrison v. Nat 'l Australia Bank Ltd., 54 7 F .3d 167, 170 (2d Cir. 2008)
6
(quoting Makarova, 201 F.3d at 113 ). When evaluating a motion to dismiss for lack of subject
matter jurisdiction, the court accepts all material factual allegations in the complaint as true
but does not necessarily draw inferences from the complaint favorable to the plaintiff. JS. ex
rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004) (citing Shipping Fin. Servs.
Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)).
III. DISCUSSION
Defendants move to dismiss count two (gender-based hostile work environment), count
four (retaliatory hostile work environment), and count five (discrimination based on
nonconformity with male sex stereotypes) pursuant to Rule 12(b)(6) for failing to allege facts
sufficient to state a claim, and to dismiss count six (a Bivens action alleging violations of the
Fifth Amendment based on sexual orientation discrimination) pursuant to Rule 12(b)(l) for lack
of subject-matter jurisdiction. Def. Mem. 1, ECF No. 43.
A. Counts Two and Four: Gender-Based and Retaliatory Hostile Work Environment
"A hostile work environment claim requires a showing [ 1] that the harassment was
'sufficiently severe or pervasive to alter the conditions of the victim's employment and create
an abusive working environment,' and [2] that a specific basis exists for imputing the
objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)
(alteration in original) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)).
The first prong "has both objective and subjective components: the conduct
complained of must be severe or pervasive enough that a reasonable person would find it
hostile or abusive, and the victim must subjectively perceive the work environment to be
abusive." Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014). The Court should consider
factors such as "the frequency of the discriminatory conduct; its severity; whether it is
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physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance." Alfano, 294 F.3d at 374
(quoting Harris v. Forklift Sys .. Inc., 510 U.S. 17, 23 (1993)). ''As a general rule, incidents
must be more than 'episodic; they must be sufficiently continuous and concerted in order to be
deemed pervasive."' Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004) (quoting Alfano,
294 F.3d at 374).
To satisfy the second prong, if, as here, it is a supervisor harassing the plaintiff, "the
employer is liable for a hostile work environment created by the supervisor unless the
employer can establish 'that (1) the employer exercised reasonable care to prevent and correct
any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the
preventive or corrective opportunities that the employer provided."' Charley v. Total Office
Planning Servs .. Inc., No. 14 Civ. 85, 2016 WL 4705164, at *3 (S.D.N.Y. Aug. 23, 2016)
(quoting Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013)). Because Defendants do not
contest this second prong, the Court need not address it.
Plaintiffs claim is predicated on allegations that, over the course of several years,
supervisors passed over him for promotions, gave him lower performance evaluations to prevent
him from being promoted, intentionally excluded him from consideration for promotions,
excluded him from meetings, ridiculed him or embarrassed him, gave him more menial tasks and
less substantive work, and removed his insubordinates. Although these are serious allegations,
they do not amount to a hostile work environment, which requires that "the workplace is
permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the victim's employment and create an abusive working
environment." Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010) (quoting
8
Demoret v. Zegarelli, 451F.3d140, 149 (2d Cir. 2006)); see, e.g., Fleming v. MaxMara USA,
Inc., 371 F. App'x 115, 119 (2d Cir. 2010) (no hostile work environment existed despite the facts
that "defendants wrongly excluded [plaintiff] from meetings, excessively criticized her work,
refused to answer work-related questions, arbitrarily imposed duties outside of her
responsibilities, threw books, and sent rude emails to her"); Davis-Molinia v. Port Auth. of N. Y
& N.J., No. 08 Civ. 7584, 2011 WL 4000997, at *11 (S.D.N.Y. Aug. 19, 2011) (dismissing
hostile work environment claim where plaintiff alleged exclusion from staff meetings;
questioning about overtime hours; additional job scrutiny; diminished job responsibilities; being
yelled at, insulted, and belittled; being denied necessary documents; and being subject to a
racially offensive remark), ajj"d, 488 F. App'x 530 (2d Cir. 2012). Furthermore, Plaintiff has
not alleged facts to suggest that many of these acts were motivated by his sex. Although Plaintiff
pleads "[u]pon information and belief, similarly situated female employees" did not suffer the
same hardships Plaintiff endured, he does not provide factual allegations that "give plausible
support to a minimal inference of discriminatory motivation." Littlejohn v. City ofN. Y., 795
F.3d 297, 311 (2d Cir. 2015). Plaintiff has failed to state a claim for hostile work environment.
To establish a retaliatory hostile work environment claim, a plaintiff "must satisfy the
same standard that governs hostile workplace claims by showing that the incidents of harassment
following complaints were sufficiently continuous and concerted to have altered the conditions
of his employment." Villar v. City ofN.Y., 135 F. Supp. 3d 105, 137 (S.D.N.Y. 2015) (quoting
Rasco v. BT Radianz, No. 05 Civ. 7147, 2009 WL 690986, at *15 (S.D.N.Y. Mar. 17, 2009)).
Not all of Plaintiffs allegations of discriminatory hostile work environment are also alleged in
his retaliatory hostile work environment claim. Compare Am. Compl. ir 157 (listing sixteen
incidents regarding count two), with id.
if 170 (listing ten incidents regarding count four). As
9
Plaintiff fails to state a claim for gender-based hostile work environment, his retaliatory hostile
work environment claim must also fail.
Accordingly, Defendants' motion to dismiss counts two and four is GRANTED.
B. Count Five: Discrimination Based on Sexual Orientation or Nonconformity with Male
Sex Stereotypes
In their motion to dismiss, Defendants argue that Plaintiff has failed to state a claim for
discrimination under Title VII for nonconformity with male sex stereotypes, and rulings from
the Second Circuit Court of Appeals foreclose Title VII claims based exclusively on sexual
orientation discrimination. See Def. Mem. 19-21 (citing Dawson v. Bumble & Bumble, 398
F.3d 211, 217 (2d Cir. 2005)); see also Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000). In
his opposition, Plaintiff acknowledges that "Title VII does not recognize a cause of action for
Plaintiffs gender stereotyping claim." Pl. Opp. 14, ECF No. 46-1. The Court agrees that
Plaintiff fails to state a claim for discrimination based on noncomformity with male sex
stereotypes.
However, the Second Circuit has recently held oral argument in two cases that present
the issue of whether Title VII protects against sexual orientation discrimination. See Zarda v.
Altitude Express, No. 15-3775 (2d Cir. argued Jan. 5, 2017); Christiansen v. Omnicom Group,
Inc., et al., No. 16-748 (2d Cir. argued Jan. 20, 2017). Accordingly, adjudication of Plaintiff's
fifth count is STAYED pending the outcome of these cases.
C. Discrimination in Violation of the Fifth Amendment
Plaintiff asserts constitutional claims against the individual defendants in their personal
capacities under Bivens. A Bivens action is allowed where there are "no special factors
counseling hesitation in the absence of affirmative action by Congress." Bivens, 403 U.S. at 396.
IO
As the Second Circuit has long established, the "the comprehensiveness of available statutory
schemes" to address a plaintiff's injury is one such factor counseling hesitation. Arar v.
Ashcroft, 585 F.3d 559, 573 (2d Cir. 2009) (citing Dotson v. Griesa, 398 F.3d 156, 166 (2d Cir.
2005)). "[I]t is the overall comprehensiveness of the statutory scheme at issue, not the adequacy
of the particular remedies afforded, that counsels judicial caution in implying Bivens actions."
Dotson, 398 F.3d at 166-67.
Defendants argue that the Civil Service Reform Act ("CSRA "), 5 C.F .R. § 1021.191,
precludes a Bivens remedy against the individual defendants. Def. Mem. 21-25. The CSRA
"prescribes in great detail the protections and remedies applicable to such action, including the
availability of administrative and judicial review." United States v. Fausto, 484 U.S. 439, 443
(1988). "The CSRA represents Congress's comprehensive identification of the employment
rights and remedies available to federal civil service personnel." Bamba v. US. Dep 't of
Homeland Sec., No. 11 Civ. 7466, 2012 WL 3020034, at *3 (S.D.N.Y. July 24, 2012) (quoting
Dotson, 398 F.3d at 160), aff'd, 533 F. App'x 33 (2d Cir. 2013). Courts have routinely held that
"the remedial scheme established by the CSRA precludes federal civil service employees from
challenging adverse employment decisions through Bivens actions for money damages." Id.
(quoting Dotson, 398 F.3d at 168); see also, e.g., Bush v. Lucas, 462 U.S. 367, 368 (1983)
("Because [plaintiffs First Amendment] claims arise out of an employment relationship that is
governed by comprehensive procedural and substantive provisions giving meaningful remedies
against the United States, we conclude that it would be inappropriate for us to supplement that
regulatory scheme with a new judicial remedy."); Atterbury v. US. Marshals Serv., 805 F.3d
398, 405 (2d Cir. 2015) ("If [the plaintiff] had been directly employed by the federal
government, his exclusive remedy would lie under the CSRA, and he would be precluded from
11
bringing a Bivens claim [for a violation of the Due Process Clause of the Fifth Amendment].").
Accordingly, Defendants' motion to dismiss Plaintiffs Bivens claim must be GRANTED. 2
IV. CONCLUSION
For the reasons stated above, Defendants' motion to dismiss counts two, four, and six
is GRANTED. Adjudication of count five is STAYED pending the outcome of the cases that
are now before the Second Circuit. The Clerk of Court is directed to terminate the motion at
ECFNo. 42.
SO ORDERED.
I~ n-i.
Dated: February 13, 2017
New York, New York
lAnrYt)..
KIMBA W. WOOD
United States District Judge
2 Plaintiff makes two arguments in opposition. First, he cites to the Supreme Court's decision in Davzs v. Passman,
442 U.S. 228 (1979), which stated that a plaintiff who was not covered by Title VII was not precluded by Title VII
from bringing a Bivens action for discrimination. PL Opp. 16. However, Davis was decided only one year after the
CSRA was enacted and therefore did not consider the preemptive effect of the CSRA on that plaintiff's claims.
Second, Plaintiff contends that the Merit Systems Protection Board ("MSPB"), a component of the CSRA, does not
have jurisdiction over sexual orientation discrimination, and therefore Plaintiff does not have a remedy for such
discrimination. PL Opp. 17-19. Defendants respond that a complaint through the Equal Employment Opportunity
Commission would be the proper venue for such a complaint. Def Reply 9-10. Furthermore, "'[t]he absence of
statutory relief for a constitutional violation' is not sufficient, by itself, for courts to imply a cause of action for
money damages against the official causing the violation." Dotson, 398 F.3d at 167 (alteration in original) (quoting
Schweiker v. Chi/icky, 487 U.S. 412, 421-22 (1988)).
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