IRS employee involved in affair with supervisor fails to advance discrimination, harassment claims
Monday, July 27, 2020

IRS employee involved in affair with supervisor fails to advance discrimination, harassment claims

By Wayne D. Garris Jr., J.D.

The employee alleged that the supervisor’s husband, also an IRS supervisor, blocked his shift change request and stalked him on the Internet.

Granting the IRS’ motion for summary judgment, a federal district court in Pennsylvania found that a customer service representative failed to show that he was subjected to harassment due to his gender, rather than because he was engaged in a romantic relationship with an IRS supervisor’s estranged wife, who was also a supervisor. Nor could the employee establish prima facie cases of sex discrimination or retaliation arising from his suspension for sending inappropriate emails to IRS management as there was no evidence that female employees had been punished for similar conduct and there was a two-year time span between his protected activity and his suspension (Friel v. Mnuchin, July 23, 2020, Savage, T.).

The employee worked as a customer service representative for the IRS. In 2012, he began a consensual romantic relationship with a supervisor, who was not the employee’s regular supervisor, but would cover for that supervisor when needed. The supervisor was married, and her husband also worked as a supervisor in a different unit of the agency. The employee alleged that when the husband learned about the relationship, he began to harass the employee including through "internet-stalking, name-calling, and intimidation." He also claimed that the husband and his friends stopped the employee from obtaining a shift change he needed to be able to finish his college degree.

Relationship ends. The employee ended the relationship with the supervisor in 2015 because she refused to do anything about her husband’s conduct. According to the employee, after he ended their relationship, the supervisor asked him "to be with her one more time." The employee declined.

In January 2016, the supervisor accused him of signing in late, but the employee was cleared of wrongdoing. The next day, she accused him of giving her a piece of paper containing an obscenity. The employee’s second-level manager warned him in writing that he could be disciplined for similar conduct in the future.

EEO complaints. In early 2016, the employee complained to an EEO counselor about the alleged harassment and received EEO counseling in May 2016. Subsequently, the employee filed three EEO complaints: sex discrimination in August 2016 and retaliation in September 2017 and November 2018. The agency found no discrimination occurred and the EEOC affirmed.

Suspension. In September 2016, the employee emailed several IRS supervisors and copied the IRS Commissioner, the highest ranking official in the IRS, writing "I guess you people have been waiting for me to break. Congratulations, you got your wish." After sending the email, the employee left the building causing a lockdown of the building’s parking garage. Then, in June 2017, at 4:28 am, the employee sent a series of text messages to an Assistant Special Agent in Charge regarding the supervisor’s accusation that he gave her a paper containing an obscenity. In one of the messages, the employee demanded that the supervisor "Make this shit right or I Will." The special agent interpreted this message as a threat. The employee’s third-level manager suspended him for five days, which disqualified him from receiving an annual performance award.

The employee filed suit alleging gender-based disparate treatment, retaliation, and hostile work environment in violation of Title VII. The employer moved for summary judgment.

Disparate treatment. The employee identified three instances of alleged disparate treatment: the denial of his shift change request, his lower 2016 performance evaluation, and his suspension. First, the court noted that neither the shift change denial nor the performance evaluation was an adverse action as neither changed the terms or conditions of his employment. Further, the employee conceded in his deposition that his shift change request was denied due to seniority. As for the performance evaluation, his scores in two categories were lower than the previous year, but his overall score was the same and he received the same performance award as he did the prior year. Lastly, the employee admitted that he didn’t believe his lower score was due to gender because he believed that he was being treated differently than all of his coworkers—male and female.

Turning to the suspension, the employee failed to put forth any evidence that women in similar situations were treated more favorably. Again, the employee conceded that his discipline would not have been different if he were a woman. The court concluded that there was no evidence of gender-based discrimination and granted summary judgment on the disparate treatment claim.

Retaliation. The employee alleged that he was subjected to retaliation when his shift change requests were denied; he received a written warning for the alleged obscene note; he received a lower annual performance review; he was not promoted; and he was suspended. The court quickly rejected four of the five allegations. First, the shift change denial, written warning, and performance review occurred before the employee engaged in any adverse action. Next, the employee was never denied a promotion. Lastly, as determined with respect to his discrimination claim, the shift change denial and lower evaluation were not adverse actions.

Nor could he show a causal connection between his EEO activity and his suspension. The employee first met with an EEO counselor in May 2016 but was suspended over two years later. The court concluded that the timing was not indicative of causation.

Furthermore, the employee failed to show that the IRS’ legitimate, nondiscriminatory reason for his suspension, his unprofessional email and text messages, was a pretext for retaliation. The employee argued that the messages were not threatening, thus the suspension was inappropriate. Rejecting this argument, the court explained that a reasonable person viewing the messages would find them "threatening and unprofessional."

Hostile work environment. The employee alleged two bases for his hostile work environment claim: sexual harassment by the supervisor and nonsexual harassment by the supervisor’s husband. He claimed that the supervisor sexually harassed him after he ended their relationship and she asked him to be with her "one more time." Although the court acknowledged that one incident, if serious, could rise to the level of actionable sexual harassment, that was not the case here. The comment did not interfere with the employee’s job performance and he did not feel threatened or intimidated by it. Given the totality of the circumstances, namely his years-long consensual relationship with the supervisor, no reasonable jury could conclude that the single incident was severe or pervasive enough to create a hostile work environment.

Nonsexual harassment. As for the nonsexual harassment by the supervisor’s husband, the employee admitted that the husband harassed him because of his relationship with the husband’s estranged wife. As a result, there was no evidence the harassment was based on the employee’s sex, or any other protected class. Thus, the hostile work environment claim was dismissed.

The case is No. 19-2559.

Attorneys: J. Matthew Wolfe (J Matthew Wolfe Law Offices) for Sean T. Friel. Matthew E.K. Howatt, U.S. Attorney's Office, for Steven T. Mnuchin.

Cases: Discrimination SexDiscrimination SexualHarassment Retaliation PublicEmployees GCNNews PennsylvaniaNews

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