Boandl v. Geithner

• Decision Date: 02 November 2010
• Docket Number: Civil Action No. 09–4799.
• Citation: 752 F.Supp.2d 540
• Parties: Richard BOANDL, Plaintiffv.Timothy F. GEITHNER, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

752 F.Supp.2d 540

Richard BOANDL, Plaintiff

v.Timothy F. GEITHNER, Defendant.

Civil Action No. 09–4799.

United States District Court, E.D. Pennsylvania.

Nov. 2, 2010.

Mary Ann Hagan, Philadelphia, PA, for Plaintiff.Gerald B. Sullivan, Assistant U.S. Attorney, U.S. Atty.'s Office, Philadelphia, PA, for Defendant.LAWRENCE F. STENGEL, District Judge.

MEMORANDUM

Plaintiff Richard Boandl, a former IRS agent, claims he was the victim of employment discrimination based on his disability, age, and gender while an employee of the Treasury Department. Defendant Timothy Geithner, Secretary of the Treasury, has filed a motion for partial summary judgment. For the reasons set forth below, I will grant the motion in part and deny it in part.

I. FACTS

Richard Boandl was born on October 21, 1948 and began working for the Internal Revenue Service (“IRS”), an arm of the United States Department of the Treasury, in 1973. Because he was infected with polio at a young age, Richard Boandl has been disabled for most of his life. Boandl Affidavit, Ex. 39 to Pl.'s Mem. In Opp'n to Def.'s Mot. To Dismiss, 1. He has a severe limp, he cannot stand for more than a few minutes at a time, and he requires a cane to walk short distances and a wheelchair to travel distances more than twenty yards. Id. at 1–2; Report of Dr. Norman Stempler, Pl.'s Ex. 16. From 1983 until October 1, 2004, Mr. Boandl was employed by the IRS as an Internal Revenue Agent. Def.'s Statement of Material Facts (“SMF”) ¶ 4. ¹ At all relevant times, Mr. Boandl was assigned to the IRS's Small Business/Self–Employed Business Operating Division in Compliance Area 3, located in Bethlehem, Pennsylvania. Id. at ¶ 5.

A. Mr. Boandl's Applications for Promotion

In March of 2003, Mr. Boandl applied for a promotion to a vacant position as a Revenue Agent. Id. at ¶ 6. Eleven individuals applied for the position, and the selecting official, Duane Briggs, convened a three member ranking panel to evaluate the applications. Id. at ¶¶ 7, 8. A fifty-two year-old man, a fifty-five year-old man, and a forty year-old woman sat on the ranking panel. ² A Human Resources Specialist (who was not a member of the panel) provided the panel members with ranking procedures and established a cut-off score for “best qualified” applicants of 48.20. Id. at ¶ 11. When the ranking panel applied the ranking procedures to the eleven applicants, five of the eleven achieved scores earning them “best qualified” status. Id. at ¶ 12. Mr. Boandl was not one of those five applicants, because his score was 38. Id. at ¶ 13. Of the five “best qualified” candidates, four were men and one was a woman; they were between forty-two and fifty years-old; and none was disabled. Id. ¶ 14–16. The individual Mr. Briggs chose for the position was a forty-nine year old female. Id. ¶ 17.

In May of 2003, Mr. Boandl applied to another vacant Revenue Agent position. Id. at ¶ 18. The same general procedure that had taken place to fill the first vacancy was utilized again. Duane Briggs was again the selecting official, but the three-member ranking panel was made up of different individuals: a fifty-three year old man, a forty-one year old woman, and Diane Heasley, who became one of Mr. Boandl's supervisors and who was forty at the time. Id. at ¶ 22. The cut-off score for best qualified applicants for this position was 48.67,³ and of the nineteen applicants who were ranked, four received a score above the cut off and earned “best qualified” status. Id. at ¶ 24. Three were men and one was a woman, their ages ranged from thirty-eight to fifty-five years old, and none was disabled. Id. at ¶¶ 26, 27. Mr. Boandl was not one of them, as he scored a 38.28. Id. at 25. Mr. Briggs chose a thirty-eight year old woman for the position. Id. at ¶ 28.

Each applicant's ranking score for the positions was computed by adding two numbers: the total score from the applicant's last performance appraisal and a score for potential that each panel member awarded him or her. See id. at ¶¶ 29–30. Mr. Boandl's performance appraisal score was therefore based on a review conducted in 2002, the year before he applied for the vacant positions and before Ms. Heasley became his supervisor. Id. at ¶ 30.⁴ Because the performance appraisal score was based solely on Mr. Boandl's past evaluation, it was, for purposes of the application ranking process, an objective score. The score awarded to each applicant for potential was, on the other hand, subjective. Id. at ¶ 33. Mr. Boandl's performance appraisal score for each position was 22.80, and the highest possible score he could have received for potential was 20. Id. at ¶ 32. Therefore, the highest score he could have achieved for either position was a 42.80, which fell below the “best qualified” cut-off scores of 48.20 and 48.67 for the vacancies. Id. at ¶ 33.

On August 27, 2003, Mr. Boandl filed an Equal Employment Opportunity (EEO) complaint with the Treasury Department challenging his non-selection for both positions. Id. at ¶ 35.

B. Mr. Boandl's Request for a Cell Phone

Ms. Heasley became Mr. Boandl's supervisor in June 2003, and some time later in 2003, Mr. Boandl approached her to request a government-issued cell phone as a reasonable accommodation for his disability. Def.'s SMF ¶¶ 34, 36, 43; Pl's Resp. To Def.'s SMF, ¶ 36. The defendant claims Mr. Boandl did not make a cell phone request until December 11, 2003, while Mr. Boandl claims he did so earlier, in a verbal request made to Ms. Heasley on or about October 23, 2003. Def.'s SMF ¶ 36; Boandl Affidavit, 7. Because I am required to view the facts presented in the light most favorable to Mr. Boandl, I will assume that Mr. Boandl first made his request in October, 2003.

Mr. Boandl claimed he needed the cell phone to assist in his investigative duties, which required traveling outside his office to locate tax non-filers and visit witnesses. He averred that he told Ms. Heasley that “disability related barriers caused [him] much difficulty, such as, getting in and out of [his] car, walking, and standing; then, repeating the process until [he] was able to find a working pay phone.” Boandl Affidavit, 7. According to Mr. Boandl, Ms. Heasley immediately denied his request. Id. Mr. Boandl then contacted an EEO Counselor who instructed him to email the cell phone request to Ms. Heasley. Pl.'s Resp. To Def.'s SMF, ¶ 41. Mr. Boandl did so, and claims that the December 11, 2003 email he sent to Ms. Heasley was therefore a second request. Id. Ms. Heasley provided Mr. Boandl a memorandum officially denying his request for a cell phone on January 20, 2004. Boandl Affidavit, 8; Def.'s SMF ¶ 41. On February 19, 2004, Mr. Boandl filed a second EEO complaint based on Ms. Heasley's refusal to issue him a cell phone. Id. at ¶ 51.

C. Negative Performance Evaluations and TIGTA Referral

Mr. Boandl claims that a period of “unrelenting retaliation and harassment,” primarily from Ms. Heasley, began about a month after he filed his first EEO complaint in August of 2003. Boandl Affidavit, 5. On September 24, 2003, Ms. Heasley issued a negative performance evaluation of Mr. Boandl's work. Id. On January 26, 2004, she noted in another review that Mr. Boandl sent a taxpayer a complimentary letter in violation of IRS procedures. Def.'s SMF ¶ 44. Mr. Boandl does not deny receiving the letter, but claims that sending the letter did not violate IRS policy. Pl.'s Resp. To Def.'s SMF, ¶ 44. The letter was sent to two married taxpayers. Letter, Boandl Ex. 7. It is a one page, typed letter on Department of the Treasury, Internal Revenue Service letterhead and consists of five sentences regarding the work done for the taxpayers by their representative, including one stating that, “[d]uring my 30 years as a Revenue Agent, I have had contacts with literally hundreds of professional corporate, and government employees on all levels and none have shown more ability than [your tax preparer].” Id. The signatory is “Richard Boandl, Revenue Agent.” Id. An IRS regulation in place at the time Mr. Boandl sent the letter provides that “[a]ll one time use letters must be approved by the group manager, prior to mailing.” Internal Revenue Manual Section 4.10.2, Boandl Ex. 6. Mr. Boandl does not claim he sought management approval for the letter. Both Ms. Heasley and Mr. Briggs testified at an EEOC hearing that it was against IRS policy for a Revenue Agent to recommend or suggest the services of a particular tax practitioner. EEO Decision, Def. Ex. 1.

On February 3, 2004, Ms. Heasley informed Mr. Boandl during a meeting that his overall performance was unacceptable and specifically cited the complimentary taxpayer letter. Def.'s SMF ¶ 45. On February 10, 2004, Ms. Heasley and Mr. Boandl's “second line” supervisor, Mr. Briggs, referred the taxpayer letter to the Treasury Inspector General for Tax Administration (TIGTA) for investigation. While the defendant claims Mr. Boandl's issuance of a complimentary letter to a taxpayer violated IRS policy, Mr. Boandl disagrees, arguing that the IRS policy against sending letters to taxpayers applied only to initial contacts. Def.'s SMF ¶ 48; Pl.'s Resp. To Def.'s SMF ¶ 44.

Ms. Heasley issued Mr. Boandl an opportunity to improve letter on March 25, 2004. Def.'s SMF ¶ 52. In the letter, she informed him that he was failing to perform at an acceptable level, that he had 120 days to improve his performance, that his work would be subject to periodic review during the 120 day improvement period, and that he faced termination if he did not improve. Id. Ms. Heasley provided reasons for this negative evaluation, including Mr. Boandl's failure to complete work assignments on time, failure to spend the appropriate amount of time on assignments, issuance of taxpayer summonses without prior authorization, issuance of third-party letters, visits to taxpayer homes, and failure properly to document audit trails. Id. at ¶ 53. Mr. Boandl confirms that these were the reasons...