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Harley v. Geithner

September 29, 2010


The opinion of the court was delivered by: Simandle, District Judge


This matter comes before the Court on Defendant's*fn1 motion for summary judgment. [Docket Item 54.] Plaintiff's remaining claims against Defendant are brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, et seq. ("Title VII"). He alleges that his supervisors and others at the IRS discriminated against him because of his race, he is African-American, and retaliated against him for bringing a previous civil suit along with several other complaints to the Equal Employment Opportunity Commission ("EEOC"). Because the Plaintiff fails to point to sufficient evidence in the record supporting a prima facie case for any of his various claims, the Court will grant Defendant's motion for summary judgment.


This case has a lengthy factual and procedural background. Plaintiff has worked for the New Jersey branch of the IRS (officially known as the Newark Field Office) in the Criminal Investigation Division ("CI") for approximately 30 years, and has, in that time, filed three separate complaints with this Federal District Court alleging discrimination and retaliation in violation of Title VII. See Harley v. Bentsen, Civil No. 94-749, slip op. (D.N.J. Oct. 28, 1996) and Harley v. Rubin, Civil No. 97-4082, slip op. (D.N.J. Aug. 12, 1998). The present action picks up where the first lawsuit ended, and covers some of the same ground as the second suit. Plaintiff claims that, since the settlement of his first suit in 1996, Defendant has continuously retaliated and discriminated against him by delaying his eventual promotion to a higher rank, by giving him annual reviews which were lower than he believes he deserved, and though a series of disagreements over leave, credit hours, transit reimbursement, workers compensation, and assignment of duty posts. This current action is based on a series of six EEO complaints that Plaintiff filed between November of 2002 and October of 2006.

A. Factual History*fn2

1. Original Lawsuit and Settlement

In 1994, Plaintiff filed his first federal suit (Harley v. Bentsen, Civil No. 94-749) against Defendant, alleging, inter alia, that Defendant had discriminated against him by denying him promotions because of a supervisor's discriminatory animus. (Harley Aff. at ¶ 3.) In August of 1996, Plaintiff accepted a settlement offered by Defendant in which Defendant awarded Plaintiff sum of money and a promotion to an Investigative Analyst ("IA") position at a rank of GS-11 at the Cherry Hill, New Jersey, post of duty. (Oct. 1, 1996 Report & Rec. at 11.) After accepting the offer on the record in the final settlement conference, Plaintiff attempted to reject the settlement terms and sought, inter alia, a different post of duty at Mays Landing. (Id.) Defendant moved to enforce the settlement; this Court concluded that the original settlement offer was enforceable because it was a "full, fair, and voluntary settlement agreement" and granted Defendant's motion, terminating the case. (Oct. 28, 1996 Order Enforcing Settlement Agreement at 2).

2. Second Lawsuit

In November of 1996, Plaintiff began working at his new job in Cherry Hill, and shortly thereafter discovered that his SF-50 form, a standard document that is created for every employment action in federal agencies, contained a remark stating that his new position of GS-11 IA had "no promotion potential" and stated that he had been promoted as part of a district court settlement. (Ex. C to Pl.'s Opp'n to Mot. Summ. J.) (See also 1997 Compl. attached as Ex. T1 to Pl.'s Opp'n to Mot. Summ. J.) Plaintiff alleges in his affidavit that he later learned it was Paul Machalek, a manager in the Newark Field Office in the 1990s, who inserted this language in Plaintiff's SF-50 remarks field. (Harley Aff. ¶ 6.) In August of 1997, Plaintiff again filed suit in this Court, claiming that this restriction on further promotion in his SF-50 form was an act of retaliation in violation of Title VII. In August of 1998, this Court granted Defendant's motion to dismiss this action, holding that the language limiting the position's further promotion on Plaintiff's SF-50 form was not retaliation under Title VII because it was not an adverse employment action cognizable under Title VII. Harley v. Rubin, No. Civil 97-4082, slip op. at 9-10 (D.N.J. Aug. 12, 1998). This Court further held that any other claim of failure to promote that Plaintiff might allege was not yet ripe, as he had not yet applied for any promotion and been rejected, as required under Title VII. (Id. at 10.)

3. Hostility in Cherry Hill

In the two years following Plaintiff's assignment as a GS-11 IA in Cherry Hill, from 1996 to 1998, he allegedly experienced hostility from some co-workers in the office, including being "stared down" or "glared at" in an "intimidating manner." (EEO Compl. 03-3040 at 2, attached at Pl.'s Br. in Opp'n at 9.) Plaintiff attributed this hostility to resentment in the office against Plaintiff for his 1994 law suit and settlement. (Id.) Plaintiff reports that his complaints about the hostility in the office went unheeded (id.), but the Court notes that Plaintiff adduces evidence that IRS management assigned Plaintiff a "coach" to help him more easily fit into the office and prevent such hostility from getting worse. (Pl.'s R. 56.1 stmnt. ¶ 20); (Schmus Decl., Ex. E to Pl.'s Br. Opp'n.) In 1998, the hostility in the Cherry Hill post of duty ceased with the retirement of one particular employee. (EEO Compl. 03-3040 at 2.)

4. Plaintiff's 2002 Performance Evaluation

Approximately four years later, in July of 2002, Plaintiff's then-supervisor, Leo Blanes presented Plaintiff with his annual performance evaluation. (Blanes Decl. ¶ 9); (Harley Aff. ¶ 29.) The review was the highest score Plaintiff had received in the nearly six years that he had been working as an IA, with an overall rating of "exceeds fully successful" and a numerical score of 4.0 out of a possible 5. (Blanes Decl. Ex. A.); (Harley Aff. ¶ 31.) Plaintiff believed that he deserved a higher score, and expressed his dissatisfaction to Blanes in a series of e-mail messages to which Blanes responded with an explanation for his review. (Harley Aff. ¶¶ 32-34.) In Plaintiff's final rebuttal to his review, he requested that he no longer be required to provide certain written summaries of his work to Blanes because he believed Blanes no longer read them, and indicated that he thought Blanes was racially discriminating against him. He indicated that he intended to file an EEO complaint on the issue. Blanes forwarded the e-mail exchange to his superiors in the field office headquarters asking for guidance and stating that he felt that the tone of Plaintiff's e-mails and his request to cease sending work summaries were "insubordinate." (Ex. I to Pl.'s Opp'n.)

During the course of this exchange, Plaintiff and Blanes compared Plaintiff's performance with that of the only other GS- 11 ranked IA in the state at the time, a white female named Carolyn Asfalg. (Harley Aff. ¶ 32.) Plaintiff claimed that Blanes was showing her favoritism through a more lenient evaluation standard. (Id.) Blanes rated Plaintiff higher than Asfalg in the 2002 evaluations. (Id. at ¶ 30.)

5. Blanes's Denial of POV and Overtime Requests

In September of 2002, Blanes denied Plaintiff's request for reimbursement for using his personal vehicle ("POV") for work-related activities apparently on one occasion. (Blanes Decl. ¶¶ 22-32.) Blanes believed that he was under budgetary pressures leading up to the end of the fiscal year on September 30, during which time he claims to have asked all of his employees to limit their use of POVs. (Blanes Decl. ¶¶ 24-26.) He continued to approve limited reimbursement for POV use for high-priority assignments, but the one time he denied Plaintiff's request, he did not believe it to be high-priority use. (Blanes Decl. ¶ 30.) Plaintiff denies receiving any e-mail from Blanes or seeing any office-wide memoranda on the topic, and introduces testimony from a different supervisor in a different post of duty who claimed to be unaware of any travel funds shortage at the time. (Harley Aff. ¶ 48); (Pl.'s R. 56.1 stmnt. ¶ 56.)

Plaintiff subsequently filed EEO Complaint 03-3040 on November 25, 2002, where he alleged that his July 2002 evaluation was unfairly low due to racial discrimination and retaliation for his prior civil lawsuits in the late 1990s. (EEO Compl. 03-3040.) He further claimed that Blanes's denial of reimbursement funds for POV use in September was in retaliation for his August threat to file an EEO complaint. (Id.)

In December of 2002, Plaintiff requested overtime "credit hours" from Blanes to complete a project prior to January 1, 2003. Blanes responded by denying the request and instead suggested that Plaintiff just complete as much of the assignment prior to the deadline as possible. (Blanes Decl. ¶¶ 39-41.)

6. Plaintiff's 2003 Performance Evaluation

In July of 2003, Blanes gave Plaintiff his annual performance evaluation, with an overall evaluation of "fully successful" and a numerical score of 3.6 out of a possible 5. (Blanes Decl. Ex. G.) This review was slightly lower in certain areas than Plaintiff's 2002 evaluation, but was higher in other areas. (Blanes Decl. ¶ 108.) Blanes also awarded Harley a "Special Act Award" in 2003 for work on a project in which all members of the Suspicious Activities Report ("SAR") project were given an award. (Blanes Decl. ¶ 111); (Harley Aff. ¶¶ 111-112.) Plaintiff claimed that the evaluation was unfairly low, to which Blanes responded with objective examples of business reasons for the performance evaluation. (Blanes Decl. ¶¶ 101-103.) Earlier in 2003, Blanes had not invited Plaintiff to attend a monthly meeting for the SAR team. (Harley Aff. at ¶ 108.) Blanes mentioned Harley's absence from these meetings in his 2003 evaluation, but did not penalize Plaintiff for the absence, and stated that he would begin inviting him to the meetings thereafter. (Blanes Decl. ¶ 107.) On October 9, 2003, Plaintiff filed EEO Complaint 04-3009, in which he claimed that Blanes's evaluation was kept low in retaliation for Plaintiff's November 2002 EEO complaint. (EEO Compl. 04-3009.)

7. Plaintiff's 2004 Performance Evaluation

On October 5, 2003, William Fredrick became Plaintiff's new supervisor upon the retirement of Leo Blanes. (Fredrick Decl. ¶ 4.) Fredrick met with Plaintiff on multiple occasions to provide feedback on how to improve his subsequent annual evaluation. (Fredrick Decl. ¶¶ 10-25.) On August 3, 2004, Fredrick sent Plaintiff his 2004 evaluation, which included an overall rating of "exceeds fully successful" and a numerical score of 3.8 out of a possible 5. (Fredrick Decl. Ex. L). Fredrick also recommended Plaintiff for a "Manager's Award" for his work on a particular assignment during the year, which he later received. (Fredrick Decl. ¶ 44 & Ex. M.) However, Plaintiff's review was not high enough to qualify for a "Performance Award," which carried a higher prize value than the Manager's Award. (Harley Aff. ¶ 146.)

Plaintiff complained about the evaluation and elevated his concerns to the field office managers, who considered the review independently and concurred with Fredrick's evaluation. (Fredrick Decl. ¶¶ 50-51.) Plaintiff later sent an e-mail to Fredrick and the field office managers complaining of discrimination and retaliation, and requested six weeks off to recover from stress-related ailments. (Fredrick Decl. ¶¶ 52-53.) Fredrick sent Plaintiff an e-mail tentatively approving the requested leave, and instructing Plaintiff of the department's policy on extended medical leave and the necessary medical documentation for approval, which included a statement that going on extended leave without providing the necessary documentation could result in being considered AWOL. (Fredrick Decl. Ex. T). Plaintiff responded that the e-mail made him feel threatened and retaliated against. (Fredrick Decl. ¶¶ 59-60). Plaintiff's leave request was eventually approved without the imposition of any discipline or AWOL. (Fredrick Decl. ¶¶ 67-68).

On November 2, 2004, Plaintiff filed EEO Complaint 05-2093, which alleged that Plaintiff's 2004 performance evaluation was kept unfairly low due to racial discrimination and retaliation for past EEO activity. (EEO Compl. 05-2093.)

8. Plaintiff's 2005 Performance Evaluation

In January of 2005, John Tafur became Plaintiff's supervisor. (Tafur Decl. ¶ 3.) Harley returned from his extended leave on February 18, 2005. (Tafur Decl. ¶ 10.) On August 4, 2005, Tafur presented Plaintiff with his 2005 performance evaluation, which included an overall rating of "exceeds fully successful" and a numerical score of 3.8 out of a possible 5. (Tafur Decl. Ex. A.) Plaintiff responded that he was unhappy with the evaluation and requested an in-person meeting, to which Tafur agreed. (Harley Aff. ¶ 188.) At the meeting, Harley argued, among other things, that one segment of his evaluation included an inaccurate description of his assigned duties, which convinced Tafur to raise that element, causing Plaintiff's revised 2005 evaluation to show a numerical score of 4.0 out of a possible 5. (Tafur Decl. ¶ 20). Plaintiff later filed EEO complaint 06-2127 (December 13, 2005), alleging that the performance review was unfairly low so as to keep him from receiving a performance award, because of racial discrimination and in retaliation for his 2004 EEO complaint.

9. Plaintiff's Promotion to GS-12

During the summer of 2005, the field office management decided to create a GS-12 Investigative Analyst position in the Newark Field Office, which Plaintiff had been requesting for years. (Auer Decl. ¶ 3); (Harley Aff. ¶ 245.) Assistant Special Agent in Charge ("ASAC") Daniel Auer, Special Agent in Charge ("SAC") Patricia Haynes and Acting SAC Bill Offord discussed the matter after Plaintiff alerted them to the fact that the same position had been created in the New York field office. (Auer Decl. ¶ 4.) The position was ultimately authorized by Director of Field Operations John Imhoff. Auer, Haynes and Offord all agreed, once the position was authorized, that it should be located in the Springfield office because they believed the position, as a senior investigative analyst, would have greater interaction with (and require close proximity to) the U.S. Attorney's Office and field office management in Newark. (Auer Decl. ¶ 6.)

In August of 2005, shortly after the GS-12 IA position was announced, Plaintiff's colleague, IA Asfalg had scheduled a meeting with field office management to discuss a personal matter. (Scott Decl. ¶ 11-12.) Plaintiff coincidentally called her immediately after she returned from the meeting, which Plaintiff believed was secretly about the GS-12 position, to ask her what she knew about the position. (EEO Compl. 06-122F, Pl.'s Brief in Opposition at 17.) The timing and topic of his call caused Asfalg to believe that Plaintiff was suspicious that the meeting was secretly about helping Asfalg gain the GS-12 position; she reported his call to her supervisor, James Scott. (Scott Decl. ¶ 13.) Scott thought the call sounded inappropriate, and asked one or two of Plaintiff's co-workers who had informed him about the meeting. (Id.) Ultimately, no one was reprimanded or disciplined over the incident. (Scott Decl. ¶ 14.)

In the fall of 2005, Plaintiff's then-supervisor, John Tafur, helped Plaintiff prepare for his interview for the GS-12 position by reviewing his accomplishments and conducting a mock interview. (Tafur Decl. ¶ 22.) Plaintiff asked Tafur to inquire into whether the position needed to be located in Springfield. (Tafur Decl. ¶ 23.) Both Plaintiff and IA Asfalg applied for the position, as the only two GS-11 IAs in the Newark Field Office. (Scott Decl. ¶ 15.) Plaintiff was selected by the interview panel, and was officially offered the position on January 24, 2006 by Acting SAC Bill Offord. (Tafur Decl. ¶ 24.)

10. Plaintiff Moves to Springfield

Friday, February 3, 2006, was Plaintiff's last day as a GS-11 in Cherry Hill. (Scott Decl. ¶ 16.) On that afternoon, Scott, who would become Plaintiff's supervisor in Springfield, contacted Plaintiff to arrange an arrival time in Springfield on Monday morning. (Scott Decl. ¶ 17.) Plaintiff hurt his back while packing and lifting boxes on Friday evening. (Harley Aff. ¶ 194.) Plaintiff did not tell anyone about this injury or act in a way that indicated that he had been injured. (Scott Decl. ¶ 29 & Ex. B).

On Plaintiff's first day in Springfield, he arrived later than his normally scheduled arrival time, but had previously informed Scott of this arrangement. (Harley Aff. ¶ 205.) Scott denies having made this prior arrangement and told Plaintiff that he would charge him one hour for his lateness; he later confirmed that Plaintiff was late because of moving logistics, and decided to not charge him for the lateness. (Scott Decl. ¶¶ 18-20.) Plaintiff insisted on being charged the hour, not wanting Scott to think he had done Plaintiff a favor. (Harley Aff. ¶ 208.)

Later that week, Plaintiff requested that Scott fill out some forms for a worker's compensation claim related to his back injury. (Id. ¶ 213.) Scott was unaware of any back injury, and asked around to see if anyone else knew about the injury. (Scott Decl. ¶ 27.) No one could confirm that Plaintiff had been injured, because Plaintiff had not told anyone about it. (Harley Aff. ¶ 215.) In the course of Scott's inquiries, he heard about other statements Plaintiff had made to co-workers on his first day in Springfield that led him to suspect Plaintiff's back injury was part of a ploy to get out of working in the Springfield office.*fn3 (Scott Decl. ¶¶ 30-31.) This led him to discuss his suspicions with his supervisors, Offord and Auer, who concluded that the matter should be reported to the Treasury Inspector General for Tax Administration ("TIGTA") for investigation into possible workers compensation fraud. (Scott Decl. ¶¶ 48-50.) During the course of this investigation, Plaintiff's co-workers and medical providers were approached about Defendant's suspicions of Plaintiff, which Plaintiff believes hurt his professional reputation. (Harley Aff. ¶ 228.) Ultimately, no disciplinary action was taken, or wrongdoing found, in the course of the TIGTA investigation. (Id.); (Scott Decl. ¶ 51.)

Plaintiff's time in Springfield working under Scott was marked by discord in other ways. Scott requested that Plaintiff file paperwork for a particular kind of database inquiry, in the same way that he requested of other employees who support Special Analyst investigations. (Scott Decl. ¶¶ 66-69.) Plaintiff objected to the practice, as he felt that it could potentially leave him vulnerable to charges of wrongdoing if one of the requests was improper, which he felt he was personally unable to properly verify. (Harley Aff. ¶ 240.)

On March 14, 2006, Plaintiff went out on an indefinite leave due to his back injury. (Pl.'s R. 56.1 Stmnt. ¶ 290.) Some time thereafter, Plaintiff requested Scott assign him to the Mays Landing office so that he could meet his physician's requirement to not drive longer than 30 minutes at a time, as a reasonable accommodation for his injury. (Auer Decl. ¶ 20); (Harley Aff. ¶ 229.) Scott denied the request for a transfer to Mays Landing, but offered instead a temporary posting (with the same pay) in Philadelphia, which was closer both according to MapQuest and according to personal tests done by ASAC Auer. (Auer Decl. ¶ 21) Plaintiff declined the offer of the Philadelphia temporary post, explaining that the rush-hour traffic in and out of Philadelphia would make the commute worse, even if the distance was shorter; shortly thereafter, Plaintiff submitted a new doctor's note permitting him to drive up to 35 to 40 minutes at a time. (Harley Aff. ¶ 250); (Auer Decl. ¶ 24.)

On June 13, 2006, Plaintiff filed EEO Complaint 06-122F, which alleged acts of retaliation against him by Auer, Offord and Scott, including the "secret meeting" investigation, the placement of the GS-12 position in Springfield, the TIGTA investigation, the various difficulties with taking leave, preference for Asfalg, and Scott's database paperwork requests. (EEO Compl. 06-122F, Pl.'s Br. in Opp'n at 17-18.)

On October 4, 2006, while still out on leave, Plaintiff filed EEO Complaint 06-776F, which alleged that the denial of a temporary post of duty in Mays Landing was done in retaliation for his prior EEO activities.

B. Procedural History of the Present Action

On July 31, 2007, Plaintiff filed the instant action after having exhausted his six administrative claims, claiming causes of action under the New Jersey Law against Discrimination, the First Amendment to the United States Constitution, the New Jersey Constitution, and Title VII of the Civil Rights Act of 1964. (Compl. at 11-18.) Defendant moved to dismiss and for summary judgment in lieu of answer. [Docket Item 7.] On December 9, 2008, this Court granted in part and denied in part Defendant's motion, dismissing all but the Title VII claim. [Docket Items 18 & 19.] The Court held that Plaintiff had sufficiently alleged a cause of action under Title VII for racial discrimination and for retaliation, and that summary judgment on those claims was premature because Plaintiff had not yet had an opportunity to conduct discovery for facts that would support his claims. (Dec. 9, 2008 ...

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