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Kenneth Robinson, et al v. Timothy Geithner

January 7, 2011


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

(Docket No.)



This is an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., brought by current and former employees of the Internal Revenue Service. When the complaint was filed, the plaintiffs included Kenneth Robinson, Darryl DuChene,*fn1 Tony Hawkins, Rudy Jackson, Percy McIntosh, Rick Spight, Tyrone Watson, Nicole Williams, and Norman Alston (collectively "Plaintiffs"). Plaintiffs' claims generally consisted of "disparate treatment in promotion, performance evaluation and discipline" and retaliation on the basis of race. The named defendants included the Secretary of the Treasury and the Internal Revenue Service.*fn2

On November 26, 2007, the district court dismissed Plaintiffs' claims for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiffs appealed the district court's order, and on November 13, 2009, the Ninth Circuit affirmed in part. The Ninth Circuit held that the claims of Hawkins, Spight, and Williams were properly dismissed because they failed to establish that their claims were within the scope of any administrative complaints. (Doc. 113.) The court also determined that Plaintiff Alston was not entitled to amend his complaint because he had not filed an administrative complaint covering the claims in his second amended complaint. (Doc. 113.) The Ninth Circuit also held that certain claims of Plaintiffs Kenneth Robinson, Rudy Jackson, and Percy McIntosh were not subject to dismissal for lack of jurisdiction and remanded the matter to the district court.(Doc. 113.)

Following remand, the Court issued a new scheduling order on January 14, 2010. On October 29, 2010, the Secretary of the Treasury, Timothy Geithner, filed a Motion to Sever and Dismiss as misjoined Plaintiffs Jackson's and McIntosh's claims pursuant to Federal Rule of Civil Procedure 20 or, in the alternative, a Motion to Bifurcate each Plaintiff's claims for purposes of trial pursuant to Federal Rule of Civil Procedure 42(a).A hearing was held on December 1, 2010, and the matter was argued and submitted. (Doc. 134.) It is this motion that is pending before the Court.


The following factual background is based upon the complaint and discovery responses provided by Plaintiffs during the course of the litigation.

A. Plaintiff Kenneth Robinson

Kenneth Robinson is the lead Plaintiff. He is an African-American who was hired by the Fresno, California, branch of the IRS in 1985. (Doc. 42, Second Amended Complaint ("SAC") ¶ 21.) In 2000, Robinson was denied a promotion to an EEO specialist position due to selection criteria set by a selection committee, which were chosen for the purpose of excluding African-American applicants. (Doc. 42, ¶ 22.)

In June 2000, Robinson received a thirty-day suspension and was removed from his management position for an alleged offense for which other non African-American employees received significantly more lenient discipline. (Doc. 42, ¶ 24.)

In February 2001, Robinson's job evaluation was reduced by the acting branch chief from "distinguished" to "satisfactory" without any justification. (Doc. 42, ¶ 23.) In that same year, a non African-American employee, Tommy Vilado, called him a liar and an idiot in front of other employees, but that employee was not reprimanded. (Doc. 132-1, Plaintiff Kenneth Robinson's Responses to Defendant's Interrogatories (Set 2), Response No. 2.)

In August 2002, Robinson was notified of his selection for an In Plant Liaison position. Later that month, Robinson was notified of a training for that position that was to occur from October 21, 2002, through October 25, 2002. (Id.) His team leader, Connie Gonzalez, told Robinson he was not being released to the In Plant Liaison position. (Id.) On September 5, 2002, Robinson requested to be informed why he was not being released, and the response from his team leader was that he was scheduled to receive phone and paper training for another position. (Id.) Despite this, Robinson never received the scheduled training. (Id.) Robinson was subsequently informed that he was denied the In Plant Liaison position because he had previously submitted improper travel vouchers. (Id.) He asserts that other employees, including his supervisor, Sharon Brockbank, had trouble with these vouchers but were not disciplined. (Id.)

In October 2002, Robinson was scheduled to move to another work unit, but Ms. Gonzalez, his supervisor, repeatedly delayed evaluating him and refused to give him a departure rating. (Id.) She eventually rated him as "minimally successful." (Id.) However, evaluations of his work before and after this evaluation showed that he was rated as "fully successful." (Id.)

In March 2003, Robinson's manager, Janet Sharpe, removed him from overtime because of alleged errors. (Doc. 132-1, Response No. 4.) Ultimately, Robinson was removed from his management position after he complained of racial discrimination to the Equal Employment Opportunity ("EEO") office of the IRS. (Doc. 42, ¶ 29.) One of his managers, Janet Sharpe, was aware of his EEO activity and criticized him for it. Robinson's employment was eventually terminated entirely around 2005. (Doc. 42, ¶ 30.)

During discovery, Robinson was asked to identify each and every person with knowledge of facts relating to the allegations of his complaint. (Doc. 132-1, Interrogatory No. 1.) Robinson identified the following individuals: (1) Coleen Gonzalez, Team Leader; (2) Emma Smith, Department Manager; (3) Dawn Baxter, Human Resources Specialist; (4) Gloria Delgado, Team Leader); Janet Sharpe, Manager; (5) Ellen Mooradian; (6) Glen Coles; (7) Rhonda Hon; (8) Karl Meredith; (9) David Martin, IRS employee and Plaintiff's second-level manager; (10) Yvonne McClain, IRS employee, Team Leader; (11) Tommy Vilado; (12) Sharon Brockbank; and (13) Richard Freeman. (Doc. 132-1, Response No. 1.)

B. Rudy Jackson

Plaintiff Rudy Jackson was hired by the Fresno, California, branch of the IRS on February 2, 1972, as a "clerk." (Doc. 42, ¶ 52.) He was assigned to the Machine Services Unit. (Doc. 42, ¶ 53.) While in that position, Jackson was subjected to racial slurs, and he was forced to perform menial tasks unrelated to his job responsibilities as a form of harassment. (Doc. 42, ¶ 55.)

In the late 1980s, Jackson was assigned to the EEO Office as an assistant. (Doc. 42, ¶ 59.) In or around 1991, Jackson was transferred to the position of Safety Officer, classified as a GS-8 position. (Doc. 42, ¶ 61.) In that position, Jackson was not given promotions because of his race, while two lesser qualified non-African-Americans were given promotions.

In 1999, Jackson and another employee (Rosanna Rodriguez) applied for a GS-11 "Hazmat" position. (Doc. 42, ¶ 67.) The position was cancelled, and Rodriguez received additional training; when the position was reopened, Rodriguez was given the job. (Id.) Once Rodriguez vacated her position to take the promotion, Barbara Mecca was moved into Rodriguez's old position. Mecca had no safety experience, and Jackson's manager instructed him to provide Mecca with training. (Doc. 132-3, Response No. 2.) Mecca was promoted after two years in that position, while Jackson did not receive any promotions. (Id.)

Mecca was given credit for his work, and Jackson claims that the IRS intentionally closed positions for which Mecca was not qualified so that she might receive additional training and then reapply for the positions. (Doc. 132-3, Response No. 2.)

In 2002, Jackson engaged in a dispute with a supervisor, Randall Severs. (Doc. 132-3, Response No. 3.) When Jackson reported the dispute to his manager, management lowered his performance evaluations. (Id.) Another employee made comments about his leave hours; subsequently, his leave hours were closely monitored, and he was denied leave for a medical appointment. ...

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