Loving v. Geithner

856 F. Supp. 2d 1006, 2012 WL 274655, 2012 U.S. Dist. LEXIS 11098
CourtDistrict Court, E.D. Wisconsin
DecidedJanuary 31, 2012
DocketCase No. 08-C-881
StatusPublished

This text of 856 F. Supp. 2d 1006 (Loving v. Geithner) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Loving v. Geithner, 856 F. Supp. 2d 1006, 2012 WL 274655, 2012 U.S. Dist. LEXIS 11098 (E.D. Wis. 2012).

Opinion

DECISION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

WILLIAM E. CALLAHAN, JR., United States Magistrate Judge.

I. PROCEDURAL BACKGROUND

This action was commenced on October 17, 2008, when the plaintiff, Bettye A. Loving (“Loving”), filed a complaint in the [1010]*1010United States District Court for the Eastern District of Wisconsin pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., against the defendant, Timothy Geithner, acting as Secretary for the United States Department of the Treasury. In her Amended Complaint, Loving claims that her supervisors subjected her to a hostile work environment, discriminated against her because of her race, retaliated against her for filing a complaint with the Equal Employment Opportunity Commission (“EEOC”) and for complaining of harassmeni/discrimination, and unlawfully terminated her.

This court has jurisdiction over this action pursuant to 28 U.S.C. § 1346, and venue is proper in the Eastern District of Wisconsin pursuant to 42 U.S.C. § 2000e-5(f)(3). All parties have consented to the exercise of jurisdiction by a magistrate judge. See 28 U.S.C. § 636(c); Fed. R.Civ.P. 73(b)(1).

This matter is now before the court on the defendant’s motion for summary judgment, which was filed on July 30, 2010. After being granted numerous extensions of time to file her response, Loving filed a response on February 7, 2011. However, on February 7, 2011, Loving also filed a motion to supplement her response with additional exhibits, which this court granted on February 14, 2011, 2011 WL 665355. In the court’s February 14, 2011 Order, the court also ordered Loving to file “any and all materials in opposition to the defendant’s motion for summary judgment” no later than February 28, 2011. Thus, on February 28, 2011, Loving filed not only additional exhibits, but also a “Corrected Copy of Proposed Findings of Fact,” “Additional Supplement to Proposed Findings of Facts and Exhibits,” “corrections and exhibits to the response to the defendant’s Proposed Findings of [F]acts,” “a copy of exhibits that were either omitted or a new exhibit to be associated with the original exhibits of the Proposed Findings of Fact,” and a “Response (Supplement) Brief to Defendant’s Motion for Summary Judgment.” The defendant filed his reply on March 18, 2011, concluding the briefing on his motion. For the reasons that follow, the defendant’s motion for summary judgment will be granted.

II. FACTUAL BACKGROUND

Loving was employed by the IRS for a little more than twenty years. However, in February 2007, the IRS fired Loving, citing attendance, unsatisfactory performance, and unprofessional/disrespectful conduct reasons. Loving was notified of her proposed removal from IRS service by letter dated January 10, 2007, which noted thirty-two “specifications” giving rise to her termination. (Ex. 1007.) This letter was signed by Ronald Rossi (“Rossi”), Loving’s Territory Manager. On or about February 15, 2007, David Horton (“Horton”), the “Director, Field Operations, LMSB, Heavy Manufacturing & Transportation,” issued a letter of final decision removing Loving from governmental service, with the effective date of February 17, 2007. (Def.’s Proposed Findings of Fact (“DPFOF”) ¶¶ 17-18.) Loving appealed her termination to the Merit Systems Protection Board (“MSPB”), alleging that her removal was based upon race discrimination and retaliation. Administrative Judge Stephen E. Manrose held hearings on December 10, 2007 and February 11 and 12, 2008, after which the MSPB affirmed Loving’s removal.

At the time of her termination from the IRS, Loving’s title- was Management and Program Assistant, General Schedule (“GS” or “Grade”), with the Department of Treasury, Internal Revenue Service (“IRS”). However, it appears that Loving served in this capacity in title only. [1011]*1011(DPFOF ¶ 418.) The Territory Manager’s position for which Loving assisted was abolished in 2002, and there was thus “no need for a Management Assistant to the Territory Manager in the Waukesha POD.” (Ex. 1161 at 3.) Because the territory manager’s position for which she assisted as a Management Assistant was abolished, Loving’s responsibilities as a Management Assistant were likewise abolished, although she remained a Grade 7 employee. Instead, Loving performed the duties of a Group Secretary, and she worked for various team leaders for approximately four years.

Issues pertinent to the present case began to arise when Loving was assigned to Cynthia Fox’s (“Fox”) team. In October 2005, Fox served as a “Team Manager” for one of the four “Large and Mid Size Business” (“LMSB”) components in the agency’s Pewaukee, Wisconsin office. As a LMSB Team Manager, Fox supervised GS-13 and GS-14 Senior Revenue Agents, who acted as “team coordinators” in connection with audits of tax returns of applicable corporations and businesses. Beginning on October 1, 2005, Loving was assigned to Fox’s group as the Group Secretary. As Group Secretary, Loving’s duties included managing information and computer systems for cases that were assigned to the group, mail handling duties involving the group, taking notes during group meetings, and assisting revenue agents. (DPFOF ¶ 7.)

By a memorandum dated November 2, 2005, Loving apprised Fox that she wished any communication between them to be done by electronic mail. Specifically, Loving stated as follows:

In light of what happened on September 21, 2005 [alleged physical harassment incident] I think it is only reasonable that any contact between us be done by e-mail as my attorney has advised me. If it is absolutely necessary for me to meet with you, prior notice is being requested for any meetings. My attorney has requested to be physically present or by telephone due to your confrontational behavior and to have someone of my choice advising me of my employment rights.

(Ex. 3007.) Pursuant to Loving’s request, it appears that the majority of further communications and/or contact between Loving and Fox occurred via e-mail.

In approximately June 2006, Loving filed an EEO complaint against Fox and Rossi. Loving supplemented this EEO complaint several times up through December 2006. Fox testified that she learned of Loving’s EEO complaint on or about July 17, 2006, when she was asked to sign an affidavit regarding Loving’s claim. (DPFOF ¶¶ 391, 393.) In neither her original response to the defendant’s proposed findings of fact nor in her amended response to the defendant’s proposed findings of fact filed on February 28, 2011, does Loving dispute that Fox learned of her EEO complaint on or about July 17, 2006. Therefore, such proposed fact will be deemed admitted.

As previously stated, Loving’s removal from the IRS was predicated on thirty-two “specifications.” Loving challenges all of these listed specifications.1

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Cite This Page — Counsel Stack

Bluebook (online)
856 F. Supp. 2d 1006, 2012 WL 274655, 2012 U.S. Dist. LEXIS 11098, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loving-v-geithner-wied-2012.