Angiulo v. United States

• Decision Date: 08 June 2012
• Docket Number: No. 11 C 02168.,11 C 02168.
• Citation: 867 F.Supp.2d 990
• Parties: Frank ANGIULO, Plaintiff, v. UNITED STATES of America, Timothy Geithner, Secretary of the Treasury, Department of Treasury, and Internal Revenue Service, Defendants.
• Court: U.S. District Court — Northern District of Illinois

867 F.Supp.2d 990

Frank ANGIULO, Plaintiff,

v.UNITED STATES of America, Timothy Geithner, Secretary of the Treasury, Department of Treasury, and Internal Revenue Service, Defendants.

No. 11 C 02168.

United States District Court,

N.D. Illinois,

Eastern Division.

June 8, 2012.

Nicola Tancredi, Oakbrook Terrace, IL, for Plaintiff.

AUSA, Zachary David Clopton, United States Attorney's Office, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

Frank Angiulo (“Plaintiff”) brings this action pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (“Rehabilitation Act”), against the United States of America (“United States”), Timothy Geithner, Secretary of Treasury (“Geithner”), the Department of Treasury (“Treasury”), and the Internal Revenue Service (“IRS”) (collectively, “Defendants”). (R. 18, Second Am. Compl.) Presently before the Court are Defendants' motion to dismiss Plaintiff's Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), (R. 21, Defs.' Second Mot.), and Plaintiff's motion for reassignment of case no. 1:11–cv–09021, presently pending before the Honorable Judge Charles Norgle, and consolidation with the current action. (R. 27, Pl.'s Mot. Reassign.) For the reasons stated below, Defendants' motion is granted and Plaintiff's motion is denied.

RELEVANT FACTS

Plaintiff worked for the IRS as a revenue service agent in its Chicago District office for over 26 years, from October 1983 until December 2009. (R. 18, Second Am. Compl. ¶¶ 21–22.) Since October 1985, Plaintiff worked for one of three teams in the Employee Pension Plans Examinations Group (“Examinations Group”) within the IRS. ( Id. at ¶¶ 22–23.) From July 2007 until his retirement in December 2009, Plaintiff worked under the supervision of Sonja Ra'Vonn Hall and Janice Gore, first and second line supervisors, respectively, and senior executive supervisor Monica Templemann. ( Id. ¶ 25.)

Plaintiff alleges that since January 2004 he has suffered from a number of physical disabilities and cardiac conditions, including “repeated congestive heart failures requiring hospitalization, diabetes, asthma, hypertension, high blood pressure, morbid obesity, insomnia, severe allergies, swelling of the legs[,] and sleep apnea.” ( Id. ¶ 24.) Plaintiff also avers that he has suffered from anxiety, stress related disorders, and depression since 2007. ( Id.)

Plaintiff appears to seek redress for discriminatory and retaliatory acts that occurred between May 2009 through December 2009.¹ ( Id. ¶ 1.) Specifically, Plaintiff alleges that the IRS discriminated against him by: (1) subjecting him to an investigation conducted by the Treasury Inspector General for Tax Administration (“TIGTA”) on or about September 11, 2009; (2) the making of a false statement by Plaintiff's manager to the Department of Homeland Security (“DHS”) on or about October 15, 2009; (3) issuing him a counseling memorandum on or about October 22, 2009; (4) offering to transfer him to the Determinations Section of the IRS on or about November 30, 2009; (5) issuing him a low performance appraisal rating on or about December 18, 2009; and (6) constructively discharging him by forcing him to retire effective January 1, 2010. ( Id. ¶ 3.) According to Plaintiff, he also suffered acts of discrimination, hostile work environment, and retaliation prior to the actions that give rise to this suit. ( Id. ¶ 4.) Those acts, however, are being addressed in a separateadministrative hearing before the Equal Employment Opportunity Commission (“EEOC”). ( Id.) Accordingly, the Court recounts only those facts that are relevant to the mid–2009 through December 2009 time period Plaintiff specifically identified. ( Id. ¶ 1.)

On May 14, 2009, Plaintiff submitted a reasonable accommodation request to the IRS. (R. 18–1, Ex. 7.) The disabilities listed in the request included heart failure, hypertension, major depression, stress related problems, insomnia, diabetes, sleep apnea, asthma, severe allergies, and swelling of the legs. ( Id.) Plaintiff requested the following accommodations: “(1) Transfer to another group[;] (2) Put back on flexi-place [;] (3) Flexible starting hours[;] (4) Be able to use leave without being put on AWOL or being threatened with disciplinary actions[;] (5) Parking spot in basement[;] (6) Work at home when snow is forecast[;] (7) Call Secretary instead of manager for use of [l]eave[;] (8) [H]ave the leave letter of 1/21/2009 removed from [his] EPF[;] and (9) Not be assigned any overnight travel cases.” ( Id.)

On July 15, 2009, James W. Allen, a Federal Occupational Health (“FOH”) physician reviewed Plaintiff's reasonable accommodation request and determined that Plaintiff had a substantial limitation in his ability to walk, a major life activity, due to his morbid obesity.² (R. 18–1, Ex. 6.) Allen indicated that the appropriate accommodation should be to limit Plaintiff's need to walk while at work. ( Id.) Allen also indicated that he attempted to contact Plaintiff's psychiatrist, Dr. Pravin Bhatt, at least five times on July 14–15, 2009, but Dr. Bhatt never returned his messages. ( Id.) Plaintiff alleges that Defendants took no further action to investigate, evaluate, or respond to his reasonable accommodation request based upon Plaintiff's “psychiatric disabilities.” (R. 18, Second Am. Compl. ¶ 47.)

At some point during the latter part of 2009, Defendants placed Plaintiff under physical surveillance during at least one field visit. ( Id. ¶ 51.) On September 11, 2009, Plaintiff was the subject of an investigation conducted by the TIGTA. ( Id. ¶ 3.) From September 30, 2009, to October 6, 2009, Plaintiff was hospitalized for stress-related congestive heart failure. ( Id. ¶ 48.) When Plaintiff returned to work after this hospitalization, Hall directed him to report to the IRS Inspector General for questioning. ( Id. ¶¶ 18(e), 49.) On October 15, 2009, Plaintiff's manager ³ made a false statement about Plaintiff to an employee at the DHS. ( Id. ¶ 3(c).) On October 22, 2009, Plaintiff was issued a counseling memorandum.⁴ ( Id. ¶ 3(b).) At some point after October 2009, Plaintiff took medical leave for another episode of congestive heart failure. ( Id. ¶ 50.) On November 30, 2009, “Management” offered to transfer Plaintiff to the Determinations Section of the IRS. ( Id. ¶ 3(d).) Plaintiff alleges that this was a “purported or pre-textual reasonable accommodation” and that he regarded it as “an act of harassment” because of the low regard for the Determinations Section that was common among many of the revenue agents. ( Id.) Plaintiff further alleges that being transferredto the Determinations Section is a highly undesirable assignment because it is a hostile and harassing environment and usually leads to revenue agents being forced to retire involuntarily. ( Id.)

On December 18, 2009, Plaintiff received a low appraisal rating that led to the denial of a within-grade increase. ( Id. ¶ 3(e).) Finally, some time towards the end of December 2009,⁵ Plaintiff retired involuntarily in lieu of being terminated. ( Id. ¶ 3(f).) His retirement was effective January 1, 2010. ( Id.)

PROCEDURAL HISTORY

On January 14, 2010, Plaintiff filed an employment discrimination complaint (“administrative complaint”) with the IRS. ( Id. ¶ 2.) His administrative complaint charged the IRS with violating Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.,§ 501 of the Rehabilitation Act, 29 U.S.C. § 791, and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. (R. 18–1, Ex. 2 at 1.) On March 17, 2010, the IRS dismissed Plaintiff's administrative complaint because it was filed one day late. (R. 18, Second Am. Compl. ¶ 12; R. 18–2, Ex. 2 at 2.) The EEOC affirmed the final agency decision on August 12, 2010. (R. 18–2, Ex. 2 at 3–4.) Plaintiff sought reconsideration, which was denied on December 27, 2010. (R. 18–1, Ex. 1 at 1–3.)

Plaintiff initiated this action on March 29, 2011, alleging discrimination and retaliation in violation of § 501 of the Rehabilitation Act. (R. 1, Compl.) On June 15, 2011, Plaintiff filed an amended complaint. (R. 11, Am. Compl.) On June 22, 2011, Plaintiff filed a corrected amended complaint (“First Amended Complaint”) against Defendants, alleging discrimination and retaliation in violation of § 501 of the Rehabilitation Act. (R. 13, First Am. Compl. at 1, ¶ 1.) On August 1, 2011, Defendants moved to dismiss Plaintiff's First Amended Complaint, arguing that because Plaintiff's administrative complaint was untimely he failed to exhaust his administrative remedies. (R. 15, Defs.' First Mot. ¶¶ 4–5.) According to Defendants, Plaintiff also failed to allege sufficient facts to support a finding that equitable tolling or equitable estoppel should excuse his failure to timely file his administrative complaint, and therefore his First Amended Complaint should be dismissed. ( Id.) A status hearing on Defendants' first motion to dismiss was set for August 9, 2011. (R. 16, Not. Motion.) Plaintiff failed to appear and the Court granted Defendants' motion to dismiss without prejudice. (Aug. 9, 2011 Hr'g Tr. at 1:6–22; R. 17, Min. Entry.) The Court granted Plaintiff leave to amend his First Amended Complaint so that he could attempt to “make out a case for equitable tolling or equitable estoppel[.]” (R. 17, Min. Entry; Aug. 9, 2011 Hr'g Tr. at 2:17–3:2.)

On September 7, 2011, Plaintiff filed a Second Amended Complaint against Defendants. (R. 18, Second Am. Compl.) In his Second Amended Complaint, Plaintiff states that although the IRS found that he “filed his administrative complaint[ ] one day late[,]” he “does not concede a late filing, demanding strict proof of same.” ( Id. ¶ 12.) Alternatively, Plaintiff asserts that “in the event that Plaintiff did file [his administrative complaint] one day late, he is entitled to an equitable expansion of the filing period and...