United States District Court, D. Connecticut
RULING AND ORDER ON MOTION TO DISMISS
A. BOLDEN, UNITED STATES DISTRICT JUDGE
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.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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”),  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.
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.
Alleged Failure to Provide Training and Related Disciplinary
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.
Alleged Discriminatory Scheduling and AWOL Charging
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. 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.
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.
Alleged Accent Mocking
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.
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.
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
9, 2017, Mr. Plana filed an intra-agency discrimination
complaint with the Office of Civil Rights and Diversity for
the Treasury. OCRD Compl.
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.
December 26, 2017, Plaintiff allegedly received a notice of
final agency decision. Compl. ¶ 5.
February 26, 2018, Plaintiff filed his Title VII complaint.
August 24, 2018, Defendant moved to dismiss the Complaint.
September 14, 2018, Plaintiff opposed the motion to dismiss.
Pl. Brief in Opp. to Mot. to Dismiss and/or for Summ. ...