BOANDL v. GEITHNER

a reasonable and manageable accommodation and therefore failed to engage in the interactive process.

The defendant does not dispute that Mr. Boandl put it on adequate notice that he was requesting an accommodation for his disability, and I believe Mr. Boandl has provided evidence that would allow a factfinder to conclude that the defendant failed to engage in the interactive process because Ms. Heasley denied his request summarily. However, "[t]he interactive process does not dictate that any particular concession must be made by the employer; nor does the process remove the employee's burden of showing that a particular accommodation rejected by the employer would have made the employee qualified to perform the job's essential functions." Taylor, 184 F.3d at 317. In other words, even if the defendant failed to engage in the interactive process, Mr. Boandl still must ultimately show that a cell phone was required for him to perform the essential functions of his job as a revenue agent. Mr. Boandl claims that the reason identified by Ms. Heasley for his request — that he be able to immediately return pages from the office while in the field — was not the sole reason for his cell phone request. Rather, he claims that he had investigative duties outside the office requiring use of a cell phone, including locating tax non-filers and visiting witnesses. Pl.'s Resp. To Def.'s SMF, ¶ 38. He claims that his disability made finding and using pay telephones to perform these duties a hardship. Id.

The defendant does not present evidence that locating non-filers and witnesses was not an essential function of Mr. Boandl's position. It relies largely on the EEOC decision in support of its argument, and in that decision, the ALJ cited testimony from Ms. Heasley that Mr. Boandl did not need to return pages immediately and that cell phones were not issued to other Revenue Agents. EEOC Decision, 8. I believe summary judgment in favor of the defendant is not merited on this claim. Mr. Boandl has presented evidence sufficient to create an issue of fact whether a cell phone was a reasonable accommodation. Although Ms. Heasley and the defendant frame Mr. Boandl's request as relating only to his ability to return pages from the office while he was in the field, Mr. Boandl has identified other tasks — including locating non-filers and witnesses — that he claims required the use of a payphone and were made more difficult because of his disability.

Because Mr. Boandl has satisfied his prima facie burden, the government must show that his requested accommodation is unreasonable or would cause an undue hardship. Ms. Heasley's testimony, as described by the EEOC ALJ, does not establish "that the accommodations requested by [Mr. Boandl] are unreasonable or would cause an undue hardship." See Donahue, 224 F.3d at 229. Therefore, I will deny the government's motion for summary judgment on this claim.

2. Retaliation

Just as the Rehabilitation Act borrows the ADA's standards for accommodation claims, it borrows as well the ADA framework for retaliation claims. See 29 U.S.C. § 794(d); 42 U.S.C. § 12203;Venter v. Potter, 694 F. Supp. 2d 412, 427 (W.D.Pa. 2010). Therefore, the familiar McDonnell-Douglas framework utilized in ADA cases is also applicable in this context.

To establish a prima facie case of retaliation under the [Rehabilitation Act], a plaintiff must show: (1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action. . . . If an employee establishes a prima facie case . . . the burden shifts to the employer to advance a legitimate, non-retaliatory reason for its adverse employment action. . . . If the employer satisfies its burden, the plaintiff must be able to convince the factfinder both that the employer's proffered explanation was false, and that retaliation was the real reason for the adverse employment action.

Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-501 (3d Cir. 1997) (internal citations and quotations omitted); see also Ozlek v. Potter, 259 Fed.Appx. 417, 421-422 (3d Cir. 2007) (non-precedential opinion).

Since Mr. Boandl has not set forth direct evidence of discrimination, the United States Supreme Court's analysis inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L. Ed. 2d 668 (1973), applies to his claims. "Direct evidence is `so revealing of discriminatory animus that it is not necessary to rely on any presumption from the prima facie case to shift the burden of production.'" Embrico v. U.S. Steel Corp., 404 F. Supp. 2d 802, 818 n. 16 (E.D.Pa. 2005) (quoting Connors v. Chrysler Fin. Corp., 160 F.3d 971, 976 (3d Cir. 1998)).

As to the first element of a retaliation claim, the defendant does not dispute that filing an EEO complaint and making a request for a reasonable accommodation are protected employee activities. See Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 188 (3d Cir. 2003). The issue here is whether Mr. Boandl has met the second and third elements required to state a prima facie case.

It is well-settled that materially adverse employment actions are not necessarily "workplace-related or employment-related retaliatory acts and harm." Moore v. City of Phila., 461 F.3d 331, 341 (3d Cir. 2006) (quoting Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 66, 126 S.Ct. 2405, 2412-2413 (2006)). Rather, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which . . . means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."Burlington Northern, 548 U.S. at 68, 126 S.Ct. at 2415 (internal citations and quotations omitted). Courts must "remain mindful that it is important to separate significant from trivial harms because an employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at

work and that all employees experience." Moore, 461 F.3d at 346. Determinations about whether acts are materially adverse or simply part of a normal workplace "depend on the totality of the circumstances." Id. ("[A] discrimination analysis must concentrate not on individual incidents, but on the overall scenario." (citing Andrews v. City of Phila., 895 F.2d 1469, 1484 (3d Cir. 1990))).

The third prima facie element of a retaliation claim is the establishment of a causal connection. In order to establish a causal connection between engagement in protected activity and an adverse employment action, a plaintiff must demonstrate either (1) a temporal proximity between the two events that is "unusually suggestive" of retaliation, or (2) timing plus other evidence, such as evidence that the employer engaged in a "pattern of antagonism" with the plaintiff. Luckiewicz v. Potter, 670 F. Supp. 2d 400, 411 (E.D.Pa. 2009) (citing Williams v. Phila. Hous. Auth. Police Dep't., 380 F.3d 751, 760 (3d Cir. 2004), and Robinson v. Se. Pa. Transp. Auth., 982 F.2d 892, 895 (3d Cir. 1993) (finding that even absent temporal proximity, an employee showed a causal connection where he was subjected to a barrage of written and verbal warnings, inaccurate point totalings, and disciplinary action)).

Mr. Boandl sets forth a number of acts he claims constituted retaliation for his filing of EEOC complaints in August of 2003 and February of 2004. He claims that after he was denied the promotions and the accommodation request, he was "subjected to retaliation and harassment, denied proper evaluations, such as recognition for commendations and special achievements, subjected to pretextual evaluations and discipline, [and] subjected to retaliatory investigations[.]" Boandl Compl. ¶ 28. He claims has was further retaliated against when he was given a negative evaluation in response to the OPR investigation into his application for enrolled agent status. Id. ¶ 29. Instead of setting forth each instance of retaliation individually, Mr. Boandl refers in his complaint to patterns of retaliation. See id. at ¶ 32 (complaining of subjection to "an unrelenting pattern of retaliation, harassment, and an ever increasing hostile work environment"); ¶ 37 ("Ms. Heasley's ongoing retaliatory harassment . . . was followed by a pattern of intimidation designed to justify an illegal, intolerable, and hostile work environment[.]").

The government separates Mr. Boandl's Rehabilitation Act count into three distinct retaliation claims: (1) retaliation in the form of the TIGTA investigation and referral; (2) retaliation in the form of the negative performance reviews and the issuance of the opportunity to improve letter; and (3) retaliation in the form of the comments made to OPR in connection with Mr. Boandl's application for enrolled agent status. See Def.'s Mem., 42-52. I believe that this is a valid construction of Mr. Boandl's complaint, and I will discuss each claim in turn.

a. TIGTA Referral

The defendant claims the referral of Mr. Boandl's issuance of a complimentary taxpayer letter to TIGTA did not constitute an adverse employment action. It argues that referral of an incident to an independent investigative body would not dissuade a reasonable worker from making a charge of discrimination. It support of its argument, the defendant cites Simmington v. Gates, where the reviewing court found that plaintiff's retaliation claim was not supported by the evidence where the alleged materially adverse actions included investigation of the plaintiff's work attendance and giving the plaintiff an "unacceptable" rating in an employee evaluation.

The defendant also cites cases from the Southern District of Texas and the District of Columbia. I reject its reliance onCoyle v. Snow, as the reviewing court in that case stated that its refusal to recognize a TIGTA referral as an adverse employment action was due to the fact that "[t]he Fifth Circuit has construed the `adverse employment action' element of a retaliation claim in a `stricter sense' than other circuits, holding that only an employer's `ultimate employment decision' can provide the basis for a Title VII retaliation claim." No. H-04-0244, 2006 WL 696652 at *6 (S.D.Tx. Mar. 20, 2006).

No. 08-3169, 2010 WL 1346462 (D.Md. Mar. 30, 2010). In response, Mr. Boandl relies on Porter v. Shah, a case from the District of Columbia Circuit in which the District Court's grant of summary judgment in favor of the defendant was overturned insofar as it concluded that an assessment of the plaintiff did not constitute a materially adverse action for purposes of a retaliation claim. 606 F.3d 809, 818 (D.C. Cir. 2010). The court reasoned that the assessment, a "Notification of Unacceptable Performance" that "informs an employee that his or her performance teetered on the lowest rating possible for an Agency employee," was placed in the plaintiff's personnel file instead of retained in the operating unit as was agency custom; that it was accompanied by a 120-day Performance Improvement Pan outlining the activities necessary to upgrade the employee's level to "needs improvement;" and that it exposed the plaintiff to "removal, reduction in grade, withholding of within grade increase or reassignment." Id. Given these potentially serious consequences, and the nature of the performance improvement plan, the court found plaintiff had shown the existence of a materially adverse action. Id. Porter is more relevant to Mr. Boandl's negative performance evaluation claim than to his claim that referral to TIGTA was an adverse employment action. The consequences of the negative performance appraisal to the plaintiff in Porter were simply not present for Mr. Boandl as a result of the TIGTA referral. TIGTA is an independent agency whose audit and investigative duties are designed to detect and deter fraud and abuse in IRS programs and activities, and to protect IRS employees against external attempts at corruption. Def.'s SMF ¶ 47. Mr. Boandl has neither alleged nor shown that referral to this independent agency exposed him to removal from his position or reduction in grade. Mr. Boandl does attempt to dispute Treasury's characterization of TIGTA's role and the nature of the investigation initiated by Ms. Heasley and Mr. Briggs.

Instead, Mr. Boandl appears to claim that the TIGTA investigation was materially adverse because it encompassed not only his issuance of a complimentary letter to a taxpayer, but also the IRS's receipt of letters from taxpayers complimenting Mr. Boandl's work. Pl.'s Resp. To Def's SMF, ¶ 46. The TIGTA report confirms this allegation, revealing that Ms. Heasley told investigators Mr. Boandl violated IRS policy by issuing summonses to taxpayers without approval from management and that he conducted an audit in violation of established guidelines; and that Mr. Briggs expressed suspicion to investigators that Mr. Boandl asked a taxpayer to send the IRS a complimentary letter about him. TIGTA Report, Pl.'s Ex. 4. However, the fact that Mr. Boandl's supervisors spoke to investigators about other aspects of Mr. Boandl's work in connection with the investigation does not make the initiation of that investigation a materially adverse employment action.

Mr. Boandl also claims that the TIGTA referral "was a request for a criminal investigation." Pl.'s Resp. To Def.'s SMF ¶ 47. This allegation is simply unsupported. The TIGTA report states that an Assistant United States Attorney "declined prosecution of Boandl in liue of handing the matter administratively." TIGTA Report. The fact that a TIGTA investigation may lead to criminal prosecution of an IRS employee or an external actor does not make every TIGTA referral a request for prosecution.

The undisputed facts are that Mr. Boandl sent a complimentary letter to a taxpayer lauding the services of a tax preparer. IRS guidelines prohibit an IRS agent from recommending the services of a tax preparer. Mr. Boandl's supervisors sought the assistance of an external, independent body to determine whether Mr. Boandl's issuance of the letter violated IRS guidelines. Mr. Boandl has presented no evidence that the referral, in itself, could have or did alter the terms of his employment, and he has presented no evidence that this referral would have dissuaded an objective worker from pursuing a claim of discrimination; indeed, there were no ramifications of the investigation beyond the issuance of a report of investigation. I do not believe an objective employee aware of the IRS guidelines and the independent nature of TIGTA would have been chilled from pursuing his rights because of the initiation of a TIGTA investigation.

The defendant further argues that the TIGTA referral cannot constitute an adverse employment action because "the record shows that the referral and resulting investigation and report did not deter [Mr. Boandl's] EEO activity." Mem. In Support, 45. The defendant cites Mr. Boandl's filing of his second EEO complaint days after the TIGTA referral, and filing of a third EEO complaint based on the TIGTA referral. Id. The standard articulated by the Supreme Court in Burlington Northern is whether "a reasonable employee would have found the challenged action materially adverse," not whether the plaintiff found the challenged action materially adverse. Burlington Northern, 548 U.S. at 67-68 (emphasis added). The Court was adamant: "We refer to reactions of a reasonable employee because we believe that the provisions's standard for judgment harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings."Id. at 68-69 (emphasis in original).
Other courts have accepted this "subjective response" argument.See Sykes v. Pennsylvania State Police No. 05-1349, 2007 WL 141064 at *6 (W.D.Pa. Jan. 17, 2007) ("The court does not detail the specific instances of retaliation described by Sykes since it is clear that they are not actionable under the standard set out in Burlington. These actions, whether characterized as major or minor, did not deter Sykes's pursuit of new and expanded allegations of discrimination, either internally or administratively."), aff'd 311 Fed.Appx. 526 (3rd Cir. Apr 04, 2008). While Mr. Boandl's continued and persistent pursuit of his EEO claims following the referral makes the "subjective response" argument an attractive one, I will not rely on it here because it appears to conflict with the Supreme Court's ruling in Burlington Northern and because other evidence makes clear that the TIGTA referral was not an adverse employment action.

Therefore, I will not address whether Mr. Boandl has met the third element of a prima facie case.

b. Negative Performance Evaluations

The defendant argues that the negative performance evaluations Mr. Boandl received are not legally sufficient to constitute adverse employment action, but focuses its brief on the argument that "he cannot designate record facts creating a genuinely triable issue that Ms. Heasley's well-grounded business reasons for the at-issue performance evaluations and opportunity letter were pretexts for retaliation." Def.'s Mem., 50.

Although the defendant essentially concedes that, viewing the evidence in the light most favorable to Mr. Boandl, the negative performance evaluations constitute an adverse employment action, I will briefly address Mr. Boandl's arguments on this claim. Mr. Boandl was issued negative performance evaluations following the TIGTA referral. Those appraisals were significantly worse than those he received before 2004. In his performance evaluation for the period from July 1, 2001 until May 20, 2002, Mr. Boandl's summary level evaluation rated him as exceeding the "fully successful" standard in job performance. Boandl Ex. 20. The written evaluation accompanying this rating did not raise any problems. Id. In his appraisal for the period from February 24, 2003 until May 30, 2003, Mr. Boandl was rated as meeting or exceeding all performance rating standards. Ex. 9 to Boandl EEOC Complaint filed Nov. 11, 2004, Boandl Ex. 5.

Along with the negative performance evaluation, Ms. Heasley issued Mr. Boandl an Opportunity to Improve letter affording him 120 days to improve his performance, informed him that his work would be periodically reviewed, and told him that if he did not improve his performance, he would face termination. Under theBurlington Northern standard, I believe an objective person would be dissuaded from pursuing a claim of discrimination following this treatment. Compare Counts v. Shinseki, No. 08-85, 2010 WL 3810662 at *10 (W.D.Pa. Sep. 23, 2010) (finding that a material fact existed whether work reassignments and retrieval of plaintiff's government issued laptop constituted adverse employment actions) with Clayton v. Pa. Dept. Of Public Welfare ex. Rel. Richman, No. 05-0768, 2007 WL 575677 at *10 (M.D.Pa. Feb. 20, 2007) (finding that " de minimis administrative decisions" such as moving plaintiff's mailbox, refusing to give him an office in the location he desired, and requiring him to follow a hospital-wide office hours policy did not constitute materially adverse actions) aff'd 304 Fed.Appx. 104 (3d Cir. 2008).

Because Mr. Boandl has stated the first and second elements of a prima facie case, I must consider whether he has shown a causal connection between his activity and the retaliatory acts. I believe that he has. A causal connection is established with evidence of temporal proximity between the protected activity and a retaliatory act that is unusually suggestive of retaliation, or mixed evidence of the timing and other elements, such as evidence that the employer engaged in a pattern of antagonism with the plaintiff. The time that elapsed between Mr. Boandl's filing of his second EEO complaint and the issuance of the negative performance evaluation and improvement plan was about a month. That fact, combined with other evidence, including the TIGTA referral and antagonistic relations between Mr. Boandl and Ms. Heasley, could allow a factfinder to find a causal connection.See Krouse, 126 F.3d at 503-04 (holding that "when temporal proximity between protected activity and allegedly retaliatory conduct is missing, courts may look to the intervening period for other evidence of retaliatory animus.").

Because I believe Mr. Boandl has made a prima facie retaliation claim based on the issuance of a negative performance evaluation and improvement plan, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for Mr. Boandl's evaluation and performance plan. The defendant presents the written evaluation prepared by Ms. Heasley, arguing, in essence, that the document speaks for itself. Indeed, the letter includes six pages citing in great detail the problems with Mr. Boandl's work, including his issuing taxpayer summonses without management approval; failing to advise a taxpayer of his rights before commencing an investigation; failing to otherwise communicate with taxpayers in an acceptable manner; failing properly to document his hours worked per case; and failing timely to complete work, prioritize work, and gather information properly. March 24, 2004 Written Performance Evaluation, Def.'s Resp. To Complaint, Ex. C. These are all legitimate, nondiscriminatory reasons for Ms. Heasley's issuance of the negative performance evaluation.

Therefore, the burden shifts back to Mr. Boandl to present evidence that would be sufficient to convince a factfinder that the reasons offered for the negative evaluation were false, and that retaliation was the real reason for the evaluation and performance plan. In order to meet this burden, he must either (i) "present sufficient evidence to meaningfully throw into question, i.e., to cast substantial doubt upon," the defendant's proferred reason for its adverse employment action; or (ii) "come forward with sufficient evidence from which a factfinder could reasonably conclude that an illegitimate factor more likely than not was a motivating or determinative cause of the adverse employment decision[.]" Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). Although the plaintiff need not present evidence beyond that supporting his prima facie case to survive summary judgment, he must point to "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons [such] that a reasonable factfinder could rationally find them `unworthy of credence' and hence infer that the proffered non-discriminatory reason `did not actually motivate' the employer's action."Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644 (3d Cir. 1998) (citations omitted).

Mr. Boandl fails to address or discredit each of the elements of the negative performance evaluation he received. Rather, in support of his claim, he presents generalized evidence that: (1) the performance evaluation he received was a significant deviation from evaluations issued prior to Ms. Heasley's supervision of Mr. Boandl; (2) Mr. Boandl had a history of positive work evaluations and commendations from the IRS; (3) Mr. Heasley treated Mr. Boandl differently than others by singling him out for discipline due to his issuance of a complimentary taxpayer letter; (4) Ms. Heasley singled Mr. Boandl out for other demeaning treatment. The haphazard presentation of Mr. Boandl's brief makes it difficult to label his argument with any degree of certainty, but, because he fails to offer any evidence that Ms. Heasley's evaluation of his performance was unfounded, I will assume that he seeks to avoid summary judgment on the second ground articulated in Fuentes; that is, he claims Ms. Heasley relied on illegitimate factors in issuing the evaluation.

I believe Mr. Boandl has met his burden. In support of his claim, Mr. Boandl provided a copy of a letter of appreciation sent to him from Jerome Lisuzzo, the Special Agent in charge at the Criminal Investigation Section of the Philadelphia Field Office, on January 5, 2004, after Ms. Heasley's referral of Mr. Boandl's claim to TIGTA and before her issuance of the opportunity to improve letter. The letter of appreciation recognizes Mr. Boandl for providing information to the Criminal Investigation division which led to the filing of felony charges and successful prosecution of a tax non-filer. Id., Ex. 14 to Boandl Ex. 5. Mr. Boandl also includes evidence of commendations and positive recognition for his work dating back to the 1980's, arguing that because "analysis of the timing and sequence of events" is essential, Mr. Boandl's performance history must be taken into consideration in determining whether the defendant's performance evaluation was pretextual. Pl.'s Resp., 29. Evidence that an employee has a history of positive work evaluations is relevant to support a showing of pretext. See Steward v. Sears Roebuck Co., 312 F. Supp. 2d 719, 728 (E.D.Pa. 2004).

With regard to the choice to refer Mr. Boandl to TIGTA for investigation, Frank Bucci, an Internal Revenue Agent, attested that "there would be nothing unusual for an Agent to compliment a taxpayer or taxpayer representative where the audit revealed excellent tax books and records." Bucci Affidavit, Boandl Ex. 8. Adam Florkowski, a former co-worker of Mr. Boandl's who was also supervised by Ms. Heasley, claims he recalled times he complimented a taxpayer or a taxpayer's representative when records were well-prepared. Florkowski Affidavit, Boandl Ex. 10. Although I do not find the TIGTA referral constituted an adverse employment action, evidence that Mr. Boandl was treated differently than his coworkers for sending a complimentary letter could be construed by a factfinder as evidence of retaliatory animus. Mr. Boandl has also offered further evidence concerning Ms. Heasley's treatment of Mr. Boandl. In an affidavit, Mr. Florkowski testified that he observed Ms. Heasley scolding Mr. Boandl about an error on a payroll time report publicly and using an abusive tone. See Florkowski Affidavit. Mr. Boandl stated in his affidavit that, in late September, 2003, Ms. Heasley also accused Mr. Boandl of choosing a particular stamp in order to mock the addressee of a letter he had sent and that she made other accusations against him. Boandl Affidavit at 6-7.

I believe that Mr. Boandl's proferred evidence — that his past work evaluations were positive; that his work was exceeding the expectations of others only weeks prior to Ms. Heasley's issuance of the negative evaluation; and that Ms. Heasley singled Mr. Boandl out for negative treatment both publicly and in private around the time the negative performance evaluation was issued — creates an issue of fact whether Ms. Heasley's stated reasons for her evaluations of Mr. Boandl were pretextual. At least one other court in this District has accepted such reasoning. See Long v. Thomson Industries, Inc., No. 99-1693, 2000 WL 1586078 at *9 (E.D.Pa. Oct. 24, 2000) (finding that the timing of negative evaluations after plaintiff filed a complaint of discrimination, the transfer of plaintiff to a different department, and evidence of continuing altercations with management "provide sufficient circumstantial evidence for a reasonable jury to conclude that [defendant's justification for negative performance evaluations] is pretextual.").

Therefore, I will deny the defendant's motion for summary judgment on Mr. Boandl's retaliation claim based on issuance of the negative performance evaluation.

c. Negative Reference for Enrolled Agent Application

The defendant argues that Mr. Boandl's claim of retaliation in connection with the reference provided by Charles Brantley to the OPR does not constitute an adverse employment action. I agree.

In order to make a claim for post-employment retaliation, a plaintiff must show that he engaged in protected activity, that his former employer had influence over a subsequent employment-related decision, and that his former employer made a retaliatory use of that influence to the detriment of the plaintiff's employment opportunities." See Charlton v. Paramus Bd. Of Educ., 25 F.3d 194, 200-201 (3d Cir. 1994) ("[W]e . . . hold that an ex-employee may file a retaliation action against a previous employer for retaliatory conduct occurring after the end of the employment relationship when the retaliatory act is in reprisal for a protected act . . . and arises out of or is related to the employment relationship."). A former employer engages in retaliation where its action "results in discharge from a later job, a refusal to hire the plaintiff, or other professional or occupational harm." Id. at 200. In essence, post-employment retaliation must "involve[] some harm to an employee's employment opportunities." Nelson v. Upsala College, 51 F.3d 383, 388 n. 6 (3d Cir. 1995).

It is undisputed that Mr. Brantley, as an IRS director, provided information from Mr. Boandl's file to OPR at its request. Def.'s SUF ¶ 77. Even if that information was untrue or misleading, as Mr. Boandl claims it was, there was no adverse effect on Mr. Boandl. He was given the opportunity to provide additional information to OPR beyond that provided by Mr. Brantley, and after he did, he was granted enrolled agent status. Mr. Boandl has simply failed to allege a post-employment adverse action that caused harm to his employment opportunities.

D. Age Discrimination in Employment Act Claim for Failure to Promote

In the second count of his complaint, Mr. Boandl sets forth a claim under the ADEA. He argues that "in the evaluation and ranking process for [his] application[s] for promotion . . . his greater credentials and professional skills, under objective standards were ignored" and that he was "subjected to unequal evaluation standards as compared with younger employees lacking his broad range of experience." Boandl Compl. ¶ 53.

The ADEA protects federal employees over the age of 40 from age-based employment discrimination. Claims under the ADEA are analyzed under the McDonnell-Douglas burden shifting framework.Barber v. CSX Distribution Serv., 68 F.3d 694, 698 (3d Cir. 1995). A failure to promote claim under the ADEA is analogous to a failure to hire claim. Id. In order to state a prima facie case of discrimination, a plaintiff must show (1) that he belongs to the protected class; (2) that he applied for and was qualified for the job; (3) that he was rejected despite being qualified; and (4) under circumstances that raise an inference of discrimination, the employer continued to seek out individuals with qualifications similar to plaintiff's or treated more favorably those not in the protected class. Id. (citing Fowle v. C C Cola, 868 F.2d 59, 61 (3d Cir. 1989)); see also Maxwell v. Springer, 274 Fed.Appx. 186, 188 (3d Cir. 2008). Once the plaintiff makes a prima facie case, the burden shifting framework comes into play. The defendant must articulate a legitimate, non-discriminatory reason for rejecting the plaintiff for the promotion, and if the defendant does so, the burden shifts back to the plaintiff to show, by a preponderance of the evidence, that the employer's explanation is pretextual. See Fuentes, 32 F.3d at 763; see also Sarullo v. United States Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003).

The defendant does not appear to dispute that Mr. Boandl has made a prima facie case of age discrimination. See Def.'s Mem., 53. Mr. Boandl was 54 years old at the time he applied for vacant Revenue Agent positions in March and May of 2003. He claims he was qualified for the positions and the defendant concedes as much. He was rejected for both positions, and the individuals who were chosen for the positions were a forty-nine year old woman and a thirty-eight year old woman, respectively. I will assume, because the defendant has, that he has made out a prima facie case.

Although Mr. Boandl applied for these positions separately, the application process for each position was the same and the standards and procedures used by the defendant to determine which applicants for the positions were "best qualified" were also the same. Therefore, I will consider the claims coextensively where possible.

Therefore, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for rejecting Mr. Boandl for the positions. The defendant's burden here is "relatively light."Fuentes 32 F.3d at 763. The defendant claims Mr. Boandl was not chosen for either position because the ranking scores he received were below the scores the respective ranking panels had designated as "best qualified." One part of his ranking score was based on a performance evaluation he received prior to applying for the job. The other part of his overall score was based on a subjective score for potential. The defendant has met its burden. Uniform reliance on past performance evaluations to make hiring or promotion decisions is legitimate and nondiscriminatory. See Bray v. Marriot Hotels, 110 F.3d 986, 993-97 (3d Cir. 1997) (finding that use of evaluation scores was a legitimate reason for making promotion decisions, and that only evidence of discrepancies in the evaluation of the scores raised an inference of pretext); D'Amico v. Pulte Homes, Inc., No. 08-1099, 2009 WL 792344 at *3 (E.D.Pa. Mar. 23, 2009) (finding that reliance on poor performance scores in decision not to promote was legitimate and nondiscriminatory).

Therefore, the burden shifts back to Mr. Boandl to show that the government's stated reason for its rejection of his applications for promotion was pretextual and that the real reason he was denied the promotions was discrimination. Mr. Boandl relies on blanket assertions in arguing that the defendant's stated reasons are pretextual. For example, he states that the two females chosen for the positions were "younger [and] far less experienced[.]" Pl.'s Resp., 28. He fails to offer, in his brief or in his affidavit, an explanation for his argument that the individuals chosen for the position were far less experienced. He has knowledge about the other selectees' records, but makes no specific arguments concerning them, nor offers them as evidence in support of his claim. See Boandl Affidavit at 3-4 ("I recognized that under objective standards, I was far more qualified than the selectees. . . . I had more education, more diverse experience, and more years of experience. . . . In real contrast, the two younger selectees without disabilities lacked my years of diverse experience and special accomplishments. Their records do not show comparable commendations from the Commissioner of the IRS, or numerous complimentary letters from both taxpayers and tax preparers, or commendations from other segments of the IRS[.]"); Boandl SMF ¶ 28 ("Most of the experience of the two younger selectees was in the area of general enforcement [.] In sharp contrast, Boandl worked not only in general enforcement but, in addition, he had experience in special enforcement related to taxpayers found to be engaging in illegal activities, such as embezzlement, drug trafficking, illegal gambling, and other illegal activities."). Mr. Boandl does not explain how the absence of letters of commendation in the records of the selectees makes them less experienced than he, and nowhere has defendant argued that letters of commendation, or experience in criminal tax enforcement, were considered in making the promotion decisions. A plaintiff's reliance on factors he, but not the employer, deems important in making hiring and promotional decisions is not valid to show pretext. See Simpson, 142 F.3d at 638.

In Simpson, the court concluded that the plaintiff's reliance on Bray, supra, was misplaced because "in Bray, we found that various discrepancies in how the employer evaluated the criteria purportedly relied on to promote a white person over the black plaintiff, was sufficient to raise questions of fact as to the employer's motives. Bray, however, is clearly distinguishable. In Bray the discrepancies were in the use of criteria identified as determinative by the employer, see id., whereas in this case [the plaintiff] is pointing to discrepancies between a criterion identified by [the defendant] (sales quotas) and a criterion asserted only by [the plaintiff] (evaluation scores). As we have said, the focus is on the criteria identified by the employer, not the criteria only the plaintiff thinks are important." 142 F.3d at 638.

The defendant's undisputed evidence shows that the five individuals designated as "best qualified" for the March positions were between the ages of forty-two and fifty years old; and the individuals so designated for the May position were between the ages of thirty-eight and fifty-five. Although all the individuals who were "best qualified" for the first opening were younger than Mr. Boandl, the individual chosen for the March position was a mere five years younger than he. Although the individual ultimately chosen for the May position was significantly younger (thirty-eight compared to Mr. Boandl's fifty-four) an individual older than Mr. Boandl was among those designated best qualified. Because Mr. Boandl offers absolutely no evidence to counter this strong evidence that the government's selection process was not the result of age discrimination, and because he has identified no discoverable evidence that provides support for his claim, I will grant defendant's motion for summary judgment on this claim.

E. Title VII Claim for Failure to Promote

Mr. Boandl also claims the promotion selection process violated Title VII of the Civil Rights Act, which outlaws discrimination on the basis of sex. Although men are not traditionally the protected class under Title VII, they may still assert reverse discrimination claims. Such claims are governed by the McDonnell Douglas burden shifting framework. Iandimarco v. Runyon, 190 F.3d 151, 157 (3d Cir. 1999). In order to make a prima facie case of reverse discrimination in violation of Title VII, a plaintiff must "present sufficient evidence to allow a fact finder to conclude that [the defendant] is treating some people less favorably than others based upon a trait that is protected under Title VII." Id. at 161.

The defendant does not appear to dispute that Mr. Boandl has stated a prima facie case of reverse discrimination in connection with his rejections for promotion. He was a male who applied and was qualified for the promotions, he was rejected, and women were chosen for both positions. The defendant again cites its ranking panel process in setting forth a legitimate, nondiscriminatory reason for its decision to offer the promotions to other applicants. Because I have already found that the explanation offered by defendant for its selection is legitimate, I will not discuss this element again. Just as Mr. Boandl failed to offer any evidence or identify any discoverable evidence supporting his claim that the defendant discriminated on the basis of age in making the promotion decisions, he has failed to do so with respect to gender. Moreover, the evidence strongly supports the defendant's contention that there was no discrimination in its decision. Of the applicants who were ranked "best qualified" for the March position, four were men and one was a woman; of the May applicants, three were men and one was a woman. Again, this evidence belies any inference of discrimination, and Mr. Boandl points to no evidence creating an issue of fact whether the defendant had discriminatory motives when it made its promotion decisions.

Therefore, I will grant the defendant's motion for summary judgment on this claim.

F. Hostile Work Environment Claim

Mr. Boandl appears to assert hostile work environment claims in each count of his complaint. Courts in this Circuit have recognized a plaintiff's right to assert a hostile work environment claim under the Rehabilitation Act, see Miller v. Cohen, 52 F. Supp. 2d 389, 400 (M.D.Pa. 1998) aff'd, 185 F.3d 862 (3rd Cir. 1999); Title VII, see Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996); and the ADEA, see Fries v. Metro. Mgmt. Corp., 293 F.Supp.2d 498, 504 (E.D.Pa. 2003)aff'd Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506 (3d Cir. 2004).

"Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L. Ed. 2d 106 (2002). In order to state a claim for hostile work environment, a plaintiff must prove five elements: (1) the plaintiff suffered intentional discrimination because of his disability, gender, or age; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected plaintiff; (4) the discrimination would have detrimentally affected a reasonable person of the same protected class in that position; and (5) the existence of respondeat superior liability.Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001). "[H]arassment is pervasive when `incidents of harassment occur either in concert or with regularity.'" Andrews, 895 F.2d at 1484. To determine whether discrimination is sufficiently hostile to create employer liability, a reviewing court must look at the totality of the circumstances, including factors such as "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; whether it unreasonably interferes with an employee's work performance." Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L. Ed. 2d 295 (1993)). "[O]ffhanded comments and isolated incidents (unless extremely serious) are not sufficient to sustain a hostile work environment claim. Rather, the conduct must be extreme to amount to a change in the terms and conditions of employment." Mufti v. Aarsand Co., Inc., 667 F. Supp. 2d 535, 545 (W.D.Pa. 2009) (citing Abramson v. William Paterson College of New Jersey, 260 F.3d 265 (3d Cir. 2001)). Even conduct that is unquestionably offensive and rude will not rise to the level required to make out a hostile work environment claim unless it is sufficiently severe. See Saidu-Kamara v. Parkway Corp., 155 F. Supp. 2d 436, 439-440 (E.D.Pa. 2001) (finding that defendant's repeated making of suggestive sexual comments, patting plaintiff on the buttocks and breast, and making harassing comments about plaintiff's family background and poverty were not sufficient to state a claim for hostile work environment). Rather, the conduct must be objectively severe and serious.

Just as courts must review retaliation claims under an objective standard, that standard applies as well to hostile work environment and constructive discharge claims. See Burlington Northern, 548 U.S. at 68 ("We refer to reactions of a reasonable employee because we believe that the provision's standard for judging harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings." (citing Penn. State Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) for use of an objective standard in constructive discharge claims, and Harris, 510 U.S. at 21 for use of an objective standard in hostile work environment claims)).

The defendant claims Mr. Boandl has not stated a hostile work environment claim because he has not alleged harassment that was severe and pervasive. Mr. Boandl, on the other hand, claims the discrimination he suffered was "unrelenting" and that his work environment was "intimidating and threatening" Boandl Compl. ¶¶ 38, 48. In his affidavit, he provides specific examples of this treatment, claiming (1) that he was "harassed each time [he] had contact with Ms. Heasley;" (2) that Ms. Heasley accused him of choosing a particular stamp in order to mock the addressee of a letter; (3) that Ms. Heasley accused him of unauthorized use of the internet after he informed her that he had used the internet to perform case related research; (4) that Ms. Heasley "chastis[ed] [him] in a demeaning manner in the presence of fellow employees and a visitor"; (5) that Ms. Heasley accused him of disrespecting the privacy rights of a taxpayer; (6) that in August of 2004, when Mr. Boandl returned to work to turn in his case files, Ms. Heasley failed to show or voice any concern for him when he tripped outside her cubicle. See Boandl Affidavit, 6-15. Mr. Boandl also claims the TIGTA referral and negative performance evaluations, and repeated instances where Ms. Heasley failed to acknowledge commendations and compliments Mr. Boandl received from other IRS supervisors, are evidence of the hostile work environment to which he was subjected. Id. Mr. Boandl's former co-worker, Adam Florkowski, described an incident when Ms. Heasley scolded Mr. Boandl loudly, publicly, and using a demeaning tone for an error in his payroll report. Florkowski Affidavit, Boandl Ex. 9.

Mr. Boandl's hostile work environment claim must be dismissed. First, he has failed to set forth any evidence that would allow a reasonable trier of fact to conclude that he was harassed because of his membership in a protected class. In other words, Mr. Boandl has not alleged that any of the harassment he allegedly suffered was based on his disability, age, or gender. Instead, almost every example Mr. Boandl provides supporting his hostile work environment claim concerns an interaction where Ms. Heasley criticized him based solely on his work performance or reprimanded him for an action he had taken in his capacity as a Revenue Agent.

Moreover, Mr. Boandl has failed to allege or provide evidence of conduct that, when viewed objectively, would allow a fact-finder to conclude that his working conditions were altered. Mr. Boandl describes conduct that was rude, undoubtedly insulted him, and caused him distress. However, even accepting his accusations as true, he has failed to describe the kind of conduct courts in this Circuit have accepted as stating a claim for hostile work environment. He claims Ms. Heasley criticized his work and failed to appropriately recognize him for his achievements. He does not allege physical contact from Ms. Heasley, he does not describe specific discriminatory statements made by her, and he does not allege conduct that took place with any great frequency. Rather, he describes isolated incidents where Ms. Heasley used a demeaning tone with him or questioned him concerning work-related mistakes or misconduct. He alleges approximately four incidents that took place over the course of a year and asserts multiple complaints concerning Ms. Heasley's failure to compliment and voice concern for him in the manner he wished. There is no requirement under any relevant law that a supervisor act with a particular degree of civility. Because Mr. Boandl has failed to allege conduct which creates a claim for hostile work environment, I need not examine the remaining elements.

As noted eloquently by Judge Ditter, "[s]o long as what the law identifies as discrimination is not in involved, there is no requirement that a supervisor be friendly, courteous, or kind. To the contrary, the boss may be demanding, exacting, and unreasonable. He or she may deride, discipline, or demote with or without cause. Again, so long as what is inflicted is not a pretext for discrimination, there is no guarantee that the workplace will be cheerful and pleasant, smiles and compliments, praise and promotion. Bad management techniques are not in and of themselves discrimination. Lebofsky v. City of Phila., No. 06-5106, 2009 WL 1507581 at *10 n. 21 (E.D.Pa. May 29, 2009)aff'd 2010 WL 3610184 (3d Cir. Sep. 17, 2010).

Mr. Boandl has set forth allegations sufficient to meet the third prong of the test: he claims that, due to his work environment, he struggled with depression and was unable to enjoy his family life. He also claims that his doctor prescribed him medication for his symptoms and recommended that he take sick leave from work. While I recognize that Mr. Boandl was detrimentally affected by his work environment, I believe he has failed to allege conduct that a reasonable employee would view similarly.

Mr. Boandl has failed to state a hostile work environment claim under the Rehabilitation Act, the ADEA, or Title VII. I will dismiss all three hostile work environment claims.

G. Constructive Discharge Claim

Courts reviewing constructive discharge claims must employ an objective standard, and ask whether "the conduct complained of would have the foreseeable result that working conditions would be so unpleasant or difficult that a reasonable person in the employee's shoes would resign." Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir. 1993). The leading constructive discharge decision from the Supreme Court,Penn. State Police v. Suders, describes in detail the showing a plaintiff must make when alleging a compound hostile work environment constructive discharge claim. 542 U.S. at 130. In this type of claim, the plaintiff must make an additional showing beyond that required for a simple hostile work environment claim.Id. ("A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign); see also Stremple v. Nicholson, 289 Fed.Appx. 571, 573 (3d Cir. 2008) (non-precedential opinion).

However, a compound claim is only one type of constructive discharge claim. A plaintiff can prove constructive discharge independent of a hostile work environment based on the actions of a supervisor. See Stemple, 289 Fed.Appx. at 573-74 (affirming bench trial decision in favor of a surgeon in which the court rejected the surgeon's hostile work environment claim but found in his favor on a constructive discharge claim where the surgeon showed "a slow degradation of his responsibilities, status, and authority" and was "forced out of his position."). The factors relevant to whether a plaintiff can make this kind of supervisor-based constructive discharge claim, known as theClowes factors, are "whether the employer (1) threatened [the employee] with discharge or urged or suggested that she resign or retire; (2) demoted her, (3) reduced her pay or benefits, (4) involuntarily transferred her to a less desirable position, (5) altered her job responsibilities, or (6) gave unsatisfactory job evaluations." Colwell, 602 F.3d at 503.

It is unclear whether Mr. Boandl makes a compound or supervisor-based constructive discharge claim. See Boandl Compl. ¶¶ 28-29 (Boandl . . . was denied promotions and then denied reasonable accommodation, subjected to retaliation and harassment, denied proper evaluations . . . subjected to pretextual evaluations and discipline, subjected to retaliatory investigations, a hostile work environment, and intolerable working conditions, which led to his forced termination shown by his unplanned retirement. The working conditions were such as to constitute a constructive discharge."). Because I have found that Mr. Boandl failed to state a hostile work environment claim, and success on such a claim is predicate to success on a compound hostile environment constructive discharge claim, I will grant the defendant's motion for summary judgment insofar as it seeks dismissal of a compound claim.

Mr. Boandl has presented evidence, however, of actions taken by his supervisors which, though not supportive of a hostile work environment claim, so degraded his professional life that a trier of fact could conclude that he was constructively discharged. As described in great detail above in connection with Mr. Boandl's retaliation claim, Mr. Boandl was referred to TIGTA for investigation in February of 2004 for the issuance of a complimentary letter to a taxpayer. In March of 2004, he was given a negative job evaluation, placed on a performance improvement plan that included periodic reviews of his work, and informed that if he did not improve his performance within 120 days, he faced termination. He was also removed from the IRS' Flexiplace program. He describes his decision to retire as follows:

I found out that Mr. Briggs was taking action to fire me. Then, Mr. Briggs said that I could exhaust my entire sick leave from July through September, if I agreed to submit my retirement papers immediately. On July 13, 2004, I felt forced to submit the requested Memorandum to Mr. Briggs and my retirement papers on July 26, 2004. My intentions were to retire around, or after 2006[.] . . . The situation had become so intolerable that it was impossible for me to do my work. All this constant intimidation and my increasing health concerns showed me that I needed to follow my doctor's advice.

Boandl Affidavit, 14-15.

Mr. Boandl therefore has alleged facts that meet at least three of the six Clowes factors: he was threatened with discharge and was urged by Mr. Briggs to retire; his benefits were reduced at least in the sense that his participation in the Flexiplace program was taken away, and he was given unsatisfactory job evaluations. I believe there is no evidence these actions were taken because of his age or his gender; however, insofar as this pattern of retaliatory behavior was connected to Mr. Boandl's disability-related request for an accommodation and his EEOC charges, I will allow his constructive discharge claim to proceed under the Rehabilitation Act.

IV. CONCLUSION

I will grant the defendant's motion for summary judgment as to the following claims: Mr. Boandl's Title VII claims for failure to promote, hostile work environment, and constructive discharge, his ADEA claims for failure to promote, hostile work environment, and constructive discharge, and his Rehabilitation Act retaliation claims based on the TIGTA referral and the negative enrolled agent application reference. That leaves Mr. Boandl with the following claims: a failure to promote claim under the Rehabilitation Act (which the defendant did not seek to dismiss); a failure to accommodate claim under the Rehabilitation Act; a retaliation claim under the Rehabilitation Act based on the defendant's issuance of a negative performance evaluation and performance improvement plan; and a constructive discharge claim under the Rehabilitation Act.

ORDER

AND NOW, this 1st day of November, 2010, upon careful consideration of the defendant's amended motion for partial summary judgment (Document No. 14), the plaintiffs' response thereto (Document No. 18), IT IS HEREBY ORDERED that the defendants' motion is GRANTED with respect to only the following claims:

1. Plaintiff's Title VII claims for failure to promote, hostile work environment, and constructive discharge;

2. Plaintiff's ADEA claims for failure to promote, hostile work environment, and constructive discharge;

3. Plaintiff's Rehabilitation Act retaliation claims based on the TIGTA referral and negative application reference.