Brucks v. O'Neill
| Decision Date | 21 November 2001 |
| Docket Number | No. CIV.A. 00-2163-CM.,CIV.A. 00-2163-CM. |
| Citation | 184 F.Supp.2d 1103 |
| Parties | Jolene C. BRUCKS, Plaintiff, v. Paul H. O'NEILL, Secretary of the Treasury, Defendant. |
| Court | U.S. District Court — District of Kansas |
Jerry K. Levy, Law Offices of Jerry K. Levy, Katherine L. Kirk, Attorney Mediator, Lawrence, KS, for Plaintiff.
Jolene C. Brucks, Cape Coral, FL, Pro se.
Christopher Allman, Office of United States Attorney, Kansas City, KS, for Defendant.
In this lawsuit, plaintiff Jolene Brucks, a revenue agent employed by the Internal Revenue Service ("IRS"), alleges that the defendant IRS discriminated against her by failing to promote her, retaliating against her, and maintaining a hostile work environment, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1994) et seq. Pending before the court is defendant's motion for summary judgment (Doc. 63). For the reasons set forth below, defendant's motion is granted and plaintiff's complaint is dismissed.
Plaintiff has been employed as a Grade 11 revenue agent with the IRS since February 1986 and served in the Parsons, Kansas office from 1994 to 1999. In 1998, plaintiff applied for a position as a Grade 12 revenue agent in the Parsons office. Of the five Grade 11 employees who applied, she received the highest Best Qualified List (BQL) score. The BQL score is based on a formula derived from factors relevant to the open position. The BQL score does not determine the individual to be selected for the position. Rather, it serves as a means to narrow the number of applicants to those persons best qualified for the position. Every applicant listed on the BQL who was interviewed had an equal opportunity to be selected for the promotion. After the BQL scores were tabulated, the top four candidates were two men and two women (including plaintiff). The second female candidate subsequently withdrew her name from consideration. Although interviews were not required as part of the selection process, Luther Clary, the Branch Chief, and Juan Luina, the Group Manager from the Topeka, Kansas office, interviewed the remaining candidates. Plaintiff and Lorn Burdick, a man, became the top two candidates. Ultimately, Mr. Clary and Mr. Luina selected Mr. Burdick for the promotion.
Defendant contends that Mr. Burdick received the promotion because he was the most qualified candidate. It claims Burdick had more relevant experience, better interpersonal and communication skills, and performed better during the interview than plaintiff. Plaintiff, on the other hand, asserts that the reasons set forth by defendant are pretextual, and that the decision was gender-based.
The interview panel arrived at its decision by comparing the information provided by each applicant, including background, education, experience, and interpersonal and analytical skills as demonstrated in the interviews. The interviewers did not receive guidelines from the agency regarding how to evaluate the candidates. Mr. Clary and Mr. Luina determined that Mr. Burdick had more experience in a wider variety of areas than did plaintiff, which would enable him to be more successful as a Grade 12 revenue agent.
Among Mr. Clary and Mr. Luina's observations during the interviews were that while Mr. Burdick appeared comfortable and at ease, plaintiff had appeared nervous and was argumentative in response to one question. Further, Mr. Burdick had been a Revenue Agent for twenty-four years, whereas plaintiff had twelve years of experience. In addition, Mr. Burdick had served as a Volunteer Income Tax Assistance coordinator and instructor, was a Lieutenant Colonel in the United States Army Reserve, and had completed credits toward an MBA. Plaintiff, on the other hand, was a Certified Public Accountant and a licensed mediator. She also received national recognition for her work on a complex tax case. Both candidates had experience on higher graded duty cases.
With respect to his evaluation of the candidates' qualifications, Mr. Luina stated that Mr. Burdick's twenty years of experience and education guided him to choose Mr. Burdick over plaintiff. Mr. Clary stated that the determining factors in his decision were Mr. Burdick's slightly greater experience, community involvement, and education. Mr. Clary also stated he was impressed with Mr. Burdick's military record. Mr. Clary opined that the national recognition plaintiff had achieved for her work on one case did not outweigh Mr. Burdick's extensive training, knowledge, experience, and interpersonal skills demonstrated during the interview process. Before she became aware of the BQL ranking, plaintiff stated she would have understood if Mr. Burdick were selected for the Grade 12 promotion, because he had more years of experience than she. In their respective positions, Mr. Clary and Mr. Luina routinely encouraged female employees to seek better, higherpaying positions, and promoted female employees whenever possible and appropriate.
On June 4, 1998, plaintiff learned that Mr. Burdick had received the promotion. She contacted Steven Sumler, an Equal Employment Opportunity (EEO) Specialist located in the St. Louis IRS office, and expressed a desire to file an EEO complaint. Plaintiff stated that she believed Mr. Sumler was an EEO counselor, and that Mr. Sumler did not correct her misunderstanding. She contends he did not assign her an EEO counselor or refer her to the proper party with whom to file a complaint. Mr. Sumler was, however, aware of an EEO counselor's duties because he had served as a counselor in the past. Mr. Sumler stated that he did not assign a counselor to the case because plaintiff later told him she did not want to initiate the EEO process. He said plaintiff initially told him she wanted to file a complaint, but changed her mind, and said she did not want to file a complaint because she liked Luther Clary.
Mr. Sumler stated that plaintiff was merely calling him to hear an empathetic person, and denies that he misled or intimidated her. Plaintiff admits that she was aware of the time limits for contacting an EEO officer and that Sumler did not deceive her regarding them. Plaintiff, however, contends that Mr. Sumler misled her as to his status as an EEO counselor and intimidated her from filing a timely EEO complaint. Plaintiff stated that Mr. Sumler often referred to God and Christ as proper avenues with which to deal with her complaint. According to plaintiff, Mr. Sumler became "authoritarian" and informed her that "[m]anagement takes this [allegation of discrimination] very seriously." Plaintiff continued to speak with Mr. Sumler by telephone for the next ten months, including after plaintiff took a hardship transfer to Florida in September 1999. Plaintiff does not allege that anyone within the agency precluded her from contacting another EEO counselor if she had been dissatisfied with Mr. Sumler. She also admits she believes herself to be skilled at legal research. Plaintiff had received information on discrimination, retaliation and the means by which to contact an EEO counselor if she believed herself to be the victim of sex discrimination and retaliation.
The IRS designates cases according to a grade level based upon their complexity and the dollar amounts involved. Art Klaus, the Group Manager for the Parsons office, generally assigned revenue agents to cases commensurate with the grade level of their positions. Pursuant to their collective bargaining agreement with the agency, revenue agents were not entitled to receive pay at a higher grade than that which relates to the grade level of their positions. Mr. Klaus secured a temporary promotion to Grade 12 for plaintiff while she worked on a Grade 12 case in 1997 and 1998, even though she did not request a pay increase. Mr. Klaus stated that at that time, plaintiff promised Mr. Klaus she would not request higher graded pay if he would permit her to continue working on the Grade 12 case. Plaintiff denies making such a promise.
On August 20, 1998, plaintiff submitted a request for Grade 13 pay. On September 2, 1998, Mr. Klaus met with plaintiff to discuss her request. Mr. Klaus was angry because he claimed plaintiff had promised she would not seek higher graded duty pay in exchange for Mr. Klaus's promise he would assist her in obtaining a temporary certification to Grade 12. After hearing plaintiff's request, Mr. Klaus stated he would give plaintiff the "easiest Grade 11 cases to work."
On September 22, 1998, plaintiff filed a formal grievance in which she sought to obtain back pay for higher graded pay at Grade 13 for work she had performed as a Grade 11 Revenue Agent. In her grievance, she also alleged that Mr. Klaus's statement that he would assign her the lowest possible Grade 11 work assignments was in retaliation for her formal request for higher graded duty pay. Citing an ongoing pattern of discrimination, harassment, and hostility in her grievance, plaintiff asked that the alleged retaliation cease and that Mr. Klaus assign work fairly.
Specifically, she declared that Mr. Klaus retaliated against her for the higher graded duty request by permitting Bob Lett and Lorn Burdick, other co-workers who were Grade 12 employees at that time, to select their own cases. Neither her pay request nor her grievance addressed retaliation or discrimination under Title VII. Mr. Klaus denied that he had retaliated against plaintiff for exercising her EEO rights. According to Mr. Klaus, plaintiff had not been omitted from the selection of cases for retaliatory reasons. Rather, he claimed that all of the cases at issue were Grade 12 cases upon which plaintiff was not entitled to work because she was not a Grade 12 agent....
To continue reading
Request your trial
-
Carter v. Greenspan
...defendant's part, and therefore, Mr. Carter's misconception cannot serve to extend the deadline for EEO action. See Brucks v. O'Neill, 184 F.Supp.2d 1103, 1112 (D.Kan.2001) (employee's assumption that EEOC representative she contacted was an EEO counselor when in fact he was an EEO speciali......
-
St. Croix v. Univ. Of Co. Health Scie. Cen.
...decision is not automatically pretextual if the employer gave an honest explanation for termination"); Brucks v. O'Neill, 184 F.Supp.2d 1103, 1114 (D.Kan. 2001)("[t]here is no showing that the interviewers did not in fact rely upon the factors they claim to have considered in arriving at th......
-
Ford v. Brennan
... ... Certainly, Ford has ... not presented "particularly egregious ... circumstances" required for equitable tolling ... Brucks ... ...