Plana v. Mnuchin

          RULING AND ORDER ON MOTION TO DISMISS

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

         Alfredo Plana (“Plaintiff”), an employee of the Internal Revenue Service (“IRS”), allegedly suffered discrimination, a hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Compl., ECF No. 1 ¶ 1, 4.

         Steven T. Mnuchin, in his official capacity as the United States Secretary of the Treasury (“Defendant”), moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). Fed.R.Civ.P. 12(b)(6). Def.'s Mot. to Dismiss or for Summ. J. (“Def. Mot.”), ECF No. 24.^[1]

         For the reasons set forth below, the Court now GRANTS Defendant's motion to dismiss, ECF No. 24, but also grants Mr. Plana leave to file an Amended Complaint by April 12, 2019.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         Since August 6, 2007, Mr. Plana has worked as a Senior Individual Taxpayer Advisory Specialist (“ITAS”) in the Hartford, Connecticut IRS Office. Def. Mot., Ex. B, Office of Civil Rights and Diversity for the Treasury, Complaint ([No. IRS-17-0390-F] June 9, 2017) (“OCRD Compl.” or “Internal Treasury Complaint”), ^[2] ECF No. 24-4, at 5; Compl. ¶ 4. Mr. Plana, who is Puerto Rican, alleges that his supervisors know his “ethnic background, national origin, color, sex, and sexual orientation, Compl. ¶¶3, 6, and that he is or “was the only gay person in his working group.” Id.

         Mr. Plana claims that the IRS discriminated against him “on the grounds of his national origin (Hispanic/Puerto Rican), color (white), and sex (male, LGBT), ” and created a hostile workplace by: (1) failing to provide him with requisite training, id. ¶ 7; (2) altering his schedule and mischaracterizing him as AWOL, id. ¶¶ 8, 10; and (3) mocking his accent, id. ¶ 9. Mr. Plana also alleges that the IRS retaliated against him for filing a hostile workplace complaint. Id. ¶ 11.

         1. Alleged Failure to Provide Training and Related Disciplinary Actions

         Mr. Plana alleges that he was “the only person in his group who was never provided any on-the-job training (“OJT”), ” id. ¶ 7, including on the Interactive Tax Law Assistant, ” which is allegedly required for his particular position. Id. ¶ 7. Mr. Plana further alleges that his supervisor, Tyese Daley, formally reprimanded him for failure to use the Interactive Tax Law Assistant but still did not provide training. OCRD Compl. at 5. Ms. Daley allegedly issued a letter of reprimand for Plaintiff's failure to use Interactive Tax Law Assistant, id. at 6; the IRS allegedly removed the letter from Mr. Plana's personnel file when he explained that he had not been properly trained on the Interactive Tax Law Assistant. Id. at 6.

         2. Alleged Discriminatory Scheduling and AWOL Charging

         At some point, Mr. Plana's tour of duty start time was changed from 7:30 a.m. to 8:00 a.m., allegedly making him “work a heavier load than others in his unit.” Compl. ¶ 8; OCRD Compl. at 11.^[3] On December 8, 2016, Mr. Plana allegedly requested that his tour of duty revert to 7:30 a.m. - 4:00 p.m. OCRD Compl. at 11. On January 27, 2017, Victoria Grant, the group manager, denied the request by e-mail. Id. at 11. Mr. Plana claims that “long before [he] started working in this department under Tyese Daley”, such requests were either immediately denied or presumptively approved. Id. Mr. Plana alleges that he and one other employee in his unit, also of “Hispanic” race or ethnicity, were the only two “treated in this summary fashion.” Compl. ¶ 8.

         On June 10, 2016, Ms. Daley allegedly directed her subordinate to charge Mr. Plana as absent without leave (“AWOL”), even though he had requested an “unanticipated sick leave” charge. OCRD Compl. at 6. On June 16, 2016, Plaintiff was allegedly charged AWOL “as a result of being unavoidably late to work without providing advance notice, a circumstance which is not considered being AWOL in his agency and for which no other non-Hispanic employee in his unit ever has been disciplined[.]” Id. ¶ 10. On March 3, 2017, Mr. Plana was again charged as AWOL for arriving to work thirty minutes late due to a medical appointment for a recently broken ankle. Id. at 5.

         3. Alleged Accent Mocking

         Mr. Plana alleges that Ms. Daley made fun of his Spanish accent “on at least three separate occasions” in 2017 “in the presence of co-workers.” Compl. ¶ 9. On one occasion, Ms. Daley allegedly laughed at Mr. Plana's pronunciation of inventory, made him repeat himself repeatedly as she laughed at him, and then told him how to correctly pronounce the word. OCRD Compl. at 6. Another time, she allegedly laughed about something he had said and asked him to repeat it but a co-worker named Jean repeated what Mr. Plana had said so that he would not have to do so. Id.

         4.Alleged Retaliation

         Mr. Plana alleges that he received OCRD's final agency decision on December 26, 2017, and that around one month later, supervisor Robert Bartoli issued a counseling memo in retaliation for the discrimination complaint. Compl. ¶¶ 5, 11.

         B. Procedural Background

         On March 7, 2017, Mr. Plana allegedly contacted a Treasury Department counselor regarding his allegations of discrimination. Mem. of Law in Supp. of Mot. to Dismiss or for Summ. J. (“Def. Mem. of Law”) at 7.^[4]

         On June 9, 2017, Mr. Plana filed an intra-agency discrimination complaint with the Office of Civil Rights and Diversity for the Treasury. OCRD Compl.

         On June 12, 2017, OCRD issued Mr. Plana a “Claims to be Investigated” letter regarding Defendant's alleged: 1. Failure to provide on-the-job training generally and with respect to the ITLA, 2. Wrongful AWOL charging in June 2016 and March 2017, 3. January 27, 2017 denial of Mr. Plaintiffs TOD scheduling change request, and 4. Accent mocking. Def. Mot., Ex. A, Office of Civil Rights and Diversity for the Treasury, Claims to be Investigated (June 12, 2017), ECF No. 24-3.

         On December 26, 2017, Plaintiff allegedly received a notice of final agency decision. Compl. ¶ 5.

         On February 26, 2018, Plaintiff filed his Title VII complaint. Compl.

         On August 24, 2018, Defendant moved to dismiss the Complaint. Def. Mot.^[5]

         On September 14, 2018, Plaintiff opposed the motion to dismiss. Pl. Brief in Opp. to Mot. to Dismiss and/or for Summ. ...