The opinion of the court was delivered by: Stengel, J.
Plaintiff Richard Boandl, a former IRS agent, claims he was the victim of employment discrimination based on his disability, age, and gender while an employee of the Treasury Department. Defendant Timothy Geithner, Secretary of the Treasury, has filed a motion for partial summary judgment. For the reasons set forth below, I will grant the motion in part and deny it in part.
Richard Boandl was born on October 21, 1948 and began working for the Internal Revenue Service ("IRS"), an arm of the United States Department of the Treasury, in 1973. Because he was infected with polio at a young age, Richard Boandl has been disabled for most of his life. Boandl Affidavit, Ex. 39 to Pl.'s Mem. In Opp'n to Def.'s Mot. To Dismiss, 1. He has a severe limp, he cannot stand for more than a few minutes at a time, and he requires a cane to walk short distances anda wheelchair to travel distances more than twenty yards. Id. at 1-2; Report of Dr. Norman Stempler, Pl.'s Ex. 16. From 1983 until October 1, 2004, Mr. Boandl was employed by the IRS as an Internal Revenue Agent. Def.'s Statement of Material Facts ("SMF") ¶ 4.*fn1 At all relevant times, Mr. Boandl was assigned to the IRS's Small Business/Self-Employed Business Operating Division in Compliance Area 3, located in Bethlehem, Pennsylvania. Id. at ¶ 5.
A. Mr. Boandl's Applications for Promotion
In March of 2003, Mr. Boandl applied for a promotion to a vacant position as a Revenue Agent. Id. at ¶ 6. Eleven individuals applied for the position, and the selecting official, Duane Briggs, convened a three member ranking panel to evaluate the applications. Id. at ¶¶ 7, 8. A fifty-two year-old man, a fifty-five year-old man, and a forty year-old woman sat on the ranking panel.*fn2 A Human Resources Specialist (who was not a member of the panel) provided the panel members with ranking procedures and established a cut-off score for "best qualified" applicants of 48.20. Id. at ¶ 11. When the ranking panel applied the ranking procedures to the eleven applicants, five of the eleven achieved scores earning them "best qualified" status. Id. at ¶ 12. Mr. Boandl was not one of those five applicants, because his score was 38. Id. at ¶ 13. Of the five "best qualified" candidates, four were men and one was a woman; they were between forty-two and fifty years-old; and none was disabled. Id. ¶ 14 -- 16. The individual Mr. Briggs chose for the position was a forty-nine year old female. Id. ¶ 17.
In May of 2003, Mr. Boandl applied to another vacant Revenue Agent position. Id. at ¶ 18. The same general procedure that had taken place to fill the first vacancy was utilized again.
Duane Briggs was again the selecting official, but the three-member ranking panel was made up of different individuals: a fifty-three year old man, a forty-one year old woman, and Diane Heasley, who became one of Mr. Boandl's supervisors and who was forty at the time. Id. at ¶ 22. The cut-off score for best qualified applicants for this position was 48.67,*fn3 and of the nineteen applicants who were ranked, four received a score above the cut off and earned "best qualified" status. Id. at ¶ 24. Three were men and one was a woman, their ages ranged from thirty-eight to fifty-five years old, and none was disabled. Id. at ¶¶ 26, 27. Mr. Boandl was not one of them, as he scored a 38.28.Id. at 25. Mr. Briggs chose a thirty-eight year old woman for the position. Id. at ¶ 28.
Each applicant's ranking score for the positions was computed by adding two numbers: the total score from the applicant's last performance appraisal and a score for potential that each panel member awarded him or her. See id. at ¶¶ 29-30. Mr. Boandl's performance appraisal score was therefore based on a review conducted in 2002, the year before he applied for the vacant positions and before Ms. Heasley became his supervisor. Id. at ¶ 30.*fn4 Because the performance appraisal score was based solely on Mr. Boandl's past evaluation, it was, for purposes of the application ranking process, an objective score. The score awarded to each applicant for potential was, on the other hand, subjective. Id. at ¶ 33. Mr. Boandl's performance appraisal score for each position was 22.80, and the highest possible score he could have received for potential was 20. Id. at ¶ 32. Therefore, the highest score he could have achieved for either position was a 42.80, which fell below the "best qualified" cut-off scores of 48.20 and 48.67 for the vacancies. Id. at ¶ 33.
On August 27, 2003, Mr. Boandl filed an Equal Employment Opportunity (EEO) complaint with the Treasury Department challenging his non-selection for both positions. Id. at ¶ 35.
B. Mr. Boandl's Request for a Cell Phone
Ms. Heasley became Mr. Boandl's supervisor in June 2003, and some time later in 2003, Mr. Boandl approached her to request a government-issued cell phone as a reasonable accommodation for his disability. Def.'s SMF ¶¶ 34, 36, 43; Pl's Resp. To Def.'s SMF, ¶ 36. The defendant claims Mr. Boandl did not make a cell phone request until December 11, 2003, while Mr. Boandl claims he did so earlier, in a verbal request made to Ms. Heasley on or about October 23, 2003. Def.'s SMF ¶ 36; Boandl Affidavit, 7. Because I am required to view the facts presented in the light most favorable to Mr. Boandl, I will assume that Mr. Boandl first made his request in October, 2003.
Mr. Boandl claimed he needed the cell phone to assist in his investigative duties, which required traveling outside his office to locate tax non-filers and visit witnesses. He averred that he told Ms. Heasley that "disability related barriers caused [him] much difficulty, such as, getting in and out of [his] car, walking, and standing; then, repeating the process until [he] was able to find a working pay phone." Boandl Affidavit, 7. According to Mr. Boandl, Ms. Heasley immediately denied his request. Id. Mr. Boandl then contacted an EEO Counselor who instructed him to email the cell phone request to Ms. Heasley. Pl.'s Resp. To Def.'s SMF, ¶ 41. Mr. Boandl did so, and claims that the December 11, 2003 email he sent to Ms. Heasley was therefore a second request. Id. Ms. Heasley provided Mr. Boandl a memorandum officially denying his request for a cell phone on January 20, 2004. Boandl Affidavit, 8; Def.'s SMF ¶ 41. On February 19, 2004, Mr. Boandl filed a second EEO complaint based on Ms. Heasley's refusal to issue him a cell phone. Id. at ¶ 51.
C. Negative Performance Evaluations and TIGTA Referral
Mr. Boandl claims that a period of "unrelenting retaliation and harassment," primarily from Ms. Heasley, began about a month after he filed his first EEO complaint in August of 2003. Boandl Affidavit, 5. On September 24, 2003, Ms. Heasley issued a negative performance evaluation of Mr. Boandl's work. Id. On January 26, 2004, she noted in another review that Mr. Boandl sent a taxpayer a complimentary letter in violation of IRS procedures. Def.'s SMF ¶ 44. Mr. Boandl does not deny receiving the letter, but claims that sending the letter did not violate IRS policy. Pl.'s Resp. To Def.'s SMF, ¶ 44. The letter was sent to two married taxpayers. Letter, Boandl Ex. 7. It is a one page, typed letter on Department of the Treasury, Internal Revenue Service letterhead and consists of five sentences regarding the work done for the taxpayers by their representative, including one stating that, "[d]uring my 30 years as a Revenue Agent, I have had contacts with literally hundreds of professional corporate, and government employees on all levels and none have shown more ability than [your tax preparer]." Id. The signatory is "Richard Boandl, Revenue Agent." Id. An IRS regulation in place at the time Mr. Boandl sent the letter provides that "[a]ll one time use letters must be approved by the group manager, prior to mailing." Internal Revenue Manual Section 4.10.2, Boandl Ex. 6. Mr. Boandl does not claim he sought management approval for the letter. Both Ms. Heasley and Mr. Briggs testified at an EEOC hearing that it was against IRS policy for a Revenue Agent to recommend or suggest the services of a particular tax practitioner. EEO Decision, Def. Ex. 1.
On February 3, 2004, Ms. Heasley informed Mr. Boandl during a meeting that his overall performance was unacceptable and specifically cited the complimentary taxpayer letter. Def.'s SMF ¶ 45. On February 10, 2004, Ms. Heasley and Mr. Boandl's "second line" supervisor, Mr. Briggs, referred the taxpayer letter to the Treasury Inspector General for Tax Administration (TIGTA) for investigation. While the defendant claims Mr. Boandl's issuance of a complimentary letter to a taxpayer violated IRS policy, Mr. Boandl disagrees, arguing that the IRS policy against sending letters to taxpayers applied only to initial contacts. Def.'s SMF ¶ 48; Pl.'s Resp. To Def.'s SMF ¶ 44.
Ms. Heasley issued Mr. Boandl an opportunity to improve letter on March 25, 2004.
Def.'s SMF ¶ 52. In the letter, she informed him that he was failing to perform at an acceptable level, that he had 120 days to improve his performance, that his work would be subject to periodic review during the 120 day improvement period, and that he faced termination if he did not improve. Id. Ms. Heasley provided reasons for this negative evaluation, including Mr. Boandl's failure to complete work assignments on time, failure to spend the appropriate amount of time on assignments, issuance of taxpayer summonses without prior authorization, issuance of third-party letters, visits to taxpayer homes, and failure properly to document audit trails. Id. at ¶ 53. Mr. Boandl confirms that these were the reasons provided in the letter, but denies that these reasons were valid. Pl.'s Resp. To Def.'s SMF ¶ 53. In a memorandum dated March 25, 2004, Mr. Boandl was also informed that, because of his negative performance evaluation, he was no longer permitted to take part in the IRS' Flexiplace program, which had allowed him to perform certain work from home. Def. SMF ¶ 56. Prior to Ms. Heasley becoming his supervisor, Mr. Boandl had received generally satisfactory reviews of his work. Pl.'s SMF ¶ 22. For example, Mr. Boandl's performance was evaluated in May of 2002 by Kathleen Navarre. Her evaluation shows that on a scale from 1 to 5, Mr. Boandl scored either a 3 or a 4 on each of five essential job elements. Performance Evaluation, Boandl Ex. 20. The "summary level" for his job performance was "exceeds fully successful." Id.*fn5
On March 26, 2004, Mr. Boandl requested leave to amend his second EEO complaint (based initially on Ms. Heasley's refusal to issue him a cell phone) to include discrimination and retaliation claims based on his negative performance evaluation. Def.'s SMF ¶ 57. His request was approved. Id.
On August 13, 2004, TIGTA completed a report concerning Mr. Boandl's issuance of the complimentary taxpayer letter, in which it concluded that Mr. Boandl had issued the letter but that he had not done so for financial gain. Id. at ¶¶ 62, 63. The TIGTA report also revealed that, in contravention of IRS rules, Mr. Boandl had issued taxpayer summonses without first receiving management approval. Id. ¶ 64. Mr. Boandl filed a third complaint of discrimination with the EEOC on November 11, 2004, concerning the TIGTA referral. Id. at ¶ 71.
D. Boandl's Retirement from IRS and Post-Retirement Claims
On July 8, 2004, Mr. Boandl went on sick leave from his position with IRS. Id. at ¶ 58. On July 12, 2004, while Mr. Boandl was still on leave, Ms. Heasley issued another negative performance evaluation for him, rating his work as unacceptable. Id. at ¶ 59. On July 13, 2004, Mr. Boandl submitted a written memorandum to his supervisors stating that he planned to retire. Id. at ¶ 60. He formally applied for retirement on July 26, 2004. Id. at ¶ 61.On August 30, 2004 (after issuance of the TIGTA investigative report), Mr. Boandl informed the IRS that he would retire effective October 1, 2004. Id. at ¶ 68. He claims that, during the period when he was under Ms. Heasley's supervision, he suffered "negative feelings, such as anxiety, depression, sleeplessness, guilt, sadness, dejection, and worthlessness" and that he was "unable to experience pleasure or enjoyment." Boandl Affidavit, 6.
On September 30, 2007, almost three years after his retirement from IRS became effective, Mr. Boandl applied to the Treasury Department's Office of Professional Responsibility ("OPR") for "Enrolled Agent status," which would allow him to represent taxpayers before the IRS. Def.'s SMF ¶ 72. OPR was authorized to grant enrolled agent status to any person who qualified for such enrollment based on past service and experience with the IRS "and who had not engaged in conduct that would justify censure, suspension, or disbarrment." Id. at ¶ 73. On October 16, 2007, OPR's director, Michael Chesman, wrote to the Territory Manager of the Planning and Special Program concerning Mr. Boandl's application. Id. at ¶ 74. It was standard practice for OPR to request a recommendation from an IRS executive familiar with the work of a former IRS employee. Id. at ¶ 75. The Territory Manager of the Planning and Special Program sent information from Mr. Boandl's file to Charles Brantley, the Director of the Heavy Manufacturing and Transportation Department. Id. at ¶ 76; Pl.'s Resp. To Def.'s SMF ¶ 76. The information sent to Mr. Brantley regarding Mr. Boandl indicated that Mr. Boandl had a 30-day suspension from employment with the IRS in 2001 for misusing his position and collecting money from a taxpayer. Def.'s SMF ¶ 76; Pl.'s Resp. To Def's SMF ¶ 76. Based on this information, Mr. Brantley informed OPR that he did not believe Mr. Boandl was qualified for enrolled agent status, citing the 2001 suspension. Def.'s SMF ¶ 77. It is Mr. Boandl's position that this information was false. Pl.'s Resp. To Def. SMF, ¶¶ 76, 77. He claims he never received a 30 day suspension and that he never resigned from his position with the IRS because he was instead forced into retirement. Id.
OPR Director Michael Chesman wrote to Mr. Boandl on February1, 2008, informing him that, based on the information he had received from Mr. Brantley, he was considering denying Mr. Boandl's application for enrolled agent status. Def.'s SMF ¶¶ 78-79. In the letter, Mr. Chesman stated that Mr. Boandl's application was not being denied and that OPR was requesting additional information so that it could reach an informed decision. Id. at ¶ 79. On March 12, 2008, Mr. Boandl provided the supplemental information requested by Mr. Chesman. Id. at ¶ 80. Based on that supplemental information, OPR approved Mr. Boandl's application and granted him a certificate of enrollment effective April 17, 2004. Id. at ¶ 81.
Mr. Boandl filed a fourth complaint of discrimination with the EEOC on May 23, 2008, concerning the information sent to OPR from Mr. Brantley about his application. Id. at ¶ 82.
E. Mr. Boandl's Complaint
Mr. Boandl filed a three count complaint in this court on October 19, 2009. In Count I of his complaint, Mr. Boandl alleges the Treasury Department violated the Rehabilitation Act, codified at 29 U.S.C. §§ 706 et seq, when it denied his applications for promotion, denied his request for a cell phone as an accommodation, denied him proper evaluations, and retaliated against him by subjecting him to pretextual evaluations and discipline following the filing of his first EEO complaint. Compl. ¶ 27. He claims the Rehabilitation Act entitles him to special affirmative action as a disabled employee. Id. at ¶ 27(e). In Count I, he also alleges he was victim to a hostile work environment and that he was constructively discharged from his position with the IRS. In Count II of his complaint, Mr. Boandl alleges the Treasury Department violated the Age Discrimination in Employment Act when it used a "flawed evaluation process for promotion" that included a ranking on the basis of potential. Compl. ¶ 52. He claims the evaluation and ranking process used in the selection process for the promotions for which Mr. Boandl applied ignored Mr. Boandl's "greater credentials and professional skills." Id. at ¶ 53. He makes the same retaliation, hostile work environment, and constructive discharge claims in this count. In Count III of his complaint, Mr. Boandl alleges the Treasury Department violated Title VII. In support of this claim, Mr. Boandl again cites his rejections for promotion, arguing that females with less experience were chosen. Id. at ¶ 59. He makes the same retaliation, hostile work environment, and constructive discharge complaints in this count.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" when a reasonable jury could return a verdict for the non-moving party based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" when it could affect the outcome of the case under the governing law. Id.
A party seeking summary judgment initially bears responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's burden can be met simply by demonstrating "to the district court that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Summary judgment is therefore appropriate when the non-moving party fails to rebut by making a factual showing "based on the affidavits or by depositions and admissions on file" that is "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322; Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir.1992).
Celotex sets forth the basic presumption that summary judgment is only appropriate "after adequate time for discovery." 477 U.S. at 322. Indeed, on summary judgment, the nonmoving party is relieved of its burden to set forth facts showing there is a genuine issue for trial when it "shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition[.]" FED. R. CIV. P. 56(f);*fn6 see also Anderson, 477 U.S. at 250 n.5 ("[The] requirement [that a nonmoving party set forth material facts] in turn is qualified by Rule 56(f)'s provision that summary judgment be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition."). An inability to access facts material to one's case will naturally be remedied by providing the nonmoving party additional time to conduct discovery. Rule 56(f) recognizes this, and "provides for the more just adjudication of disputes by ensuring that parties are not 'railroaded' by a premature motion for summary judgment.'" Croker v. Applica Consumer Prods., Inc., No. Civ. 05-3054, 2006 WL 626425 at *3 (D.N.J. Mar. 10, 2006) (citing Celotex, 477 U.S. at 326). Whether a court should grant a Rule 56(f) motion and defer ruling on a summary judgment motion "depends, in part, on what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained." Contractors Ass'n of E. Pa., Inc. v. City of Phila., 945 F.2d 1260, 1266 (3d Cir. 1991) (internal citations and quotations omitted). Courts will deny litigants the opportunity to conduct additional discovery where "the discovery sought appears irrelevant to the issues to be adjudicated or if it is merely cumulative" or the party seeking to delay summary judgment relies only on "a 'hope' or 'hunch' that evidence creating an issue of fact will emerge at trial." Wright & Miller, Federal Practice and Procedure 3rd Ed. § 2741.
Rule 56(f), which is therefore still in effect, provides that:
When Affidavits Are Unavailable. If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or
(3) issue any other just order.
A. Whether the Treasury's Motion for Summary ...