James B. TWISDALE, Plaintiff, v. Henry M. PAULSON, Jr., Secretary of the United States, Department of Treasury, Defendant, 595 F. Supp. 2d 686

MEMORANDUM OPINION AND ORDER JOHN T. COPENHAVER, JR., District Judge. This matter is before the court on the proposed findings and recommendation of the United States Magistrate Judge, filed on August 27, 2007, to which the defendant filed objections on September 17, 2007. Defendant objects to the magistrate judge’s recommendation that the court deny the defendant’s motion for

summary judgment as to the sole remaining claim, being that of retaliation based on defendant’s delay in processing plaintiffs grievances. The proposed findings of the magistrate judge set forth in detail the relevant facts of this case. Defendant raised no objection with respect to her recitation of the facts. I. Rule 72(

b) of the Federal Rules of Civil Procedure provides in part that, once a magistrate judge has “heard a pretrial matter dispositive of a claim or defense of a party” and made a recommendation for the disposition of the matter, [t]he district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge’s disposition to which specific written objection has been made in accordance with this rule.

The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions. Fed.R.Civ.P. 72(b). Under this rule, the court is to consider de novo any portion of the magistrate judge’s recommendation to which specific written objection has been made.

See Fed.R.Civ.P. 72(b), Advisory Committee Notes (explaining that the district judge to whom the case is assigned is to make a de novo determination “of those portions of the report, findings, or recommendations to which timely objection is made”; where no timely objection is filed, “the court need only satisfy itself that there is no clear error on the face of the record”). II. On September 10, 2004 plaintiff, James B. Twisdale, filed this action alleging that his employer, the Internal Revenue Service (“IRS”), retaliated against him in violation of Title VII of the Civil Rights Act of 1964.

In 1997, plaintiff, who is a white male, was employed as the chief of the IRS’s Quality Measurement Branch in Indianapolis, Indiana. In that capacity, plaintiff was involved in the investigation of an Equal Employment Opportunity (“EEO”) complaint filed by Barry Madison (“Madison”), a black female. Plaintiff was skeptical of Madison’s claim and issued a reprimand to Madison for her commission of an ethical violation. Subsequently, Madison filed a discrimination claim against the plaintiff with the IRS’ Equal Employment Office.

Plaintiff then filed four EEO complaints of his own, alleging that black supervisors in Indiana retaliated against him in response to his opposition to Madison’s discrimination claim. On May 26, 2000, plaintiff filed a lawsuit alleging these retaliation claims in the United States District Court for the Southern District of Indiana. The district court granted

summary judgment in favor of the IRS, and plaintiffs appeal failed. (Twisdale v. Snow, 325 F.3d 950 (7th Cir.2003), Def.’s Mot. to Dis., ex. 2). The claims dealt with in that action are not in issue here. Between April 6, 2000 and October 22, 2000 plaintiff filed five agency grievances alleging retaliation based on his prior EEO activity. (Def.’s Mot. Summ. J., ex. 1). On October 1, 2000, plaintiff began to work as the IRS’ Territory Manager for Compliance Area 6 of the Small Businesses/Self-employment Division, which is based in West Virginia.

The IRS’ processing of the five grievances lodged by the plaintiff in 2000 is at the heart of the instant dispute. Plaintiff claims that the IRS retaliated against him for engaging in the EEO process by deliberately delaying processing of the five grievances. Specifically, plaintiff contends that his immediate supervisor at the IRS, Renee Mitchell (“Mitchell”), retaliated against him by delaying a decision on his grievances for a period in excess of a year and a half, in violation of IRS policy. Plaintiffs claim arises under Title VII of the Civil Rights Act of 1964.

This court possesses jurisdiction pursuant to 28 U.S.C. § 1331. The parties do not contest jurisdiction. Defendant’s objections to the magistrate judge’s denial of its motion for

summary judgment are twofold. First, defendant contends that the magistrate judge erred in applying the holding in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2414-15, 165 L.Ed.2d 345 (2006), to federal employees. (Obj. to 2nd PF & R at 3-6). Second, defendant argues that the magistrate judge erred in finding that plaintiff established the “material harm” element of his prima facie case of retaliation. (Id. at 6-12). A.

Application of Burlington Northern to Federal Employees In Burlington Northern the Supreme Court held that Title VIPs anti-retaliation provision for private-sector employees, 42 U.S.C. § 2000e-3(a), is not bound by the same limits as Title VU’s anti-discrimination provision for such employees, 42 U.S.C. § 2000e-2(a). Rather, the anti-retaliation provision for private-sector employees “extends beyond workplace-related or employment-related retaliatory acts and harm.” Burlington Northern, 126 S.Ct. at 2414.

As a result of the decision in Burlington Northern, it is unnecessary for a private-sector plaintiff to assert an “adverse employment action” to support a claim for retaliation. Id. Instead, to prove actionable retaliation, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” ’ ” Id. at 2415 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006)).

While Burlington Northern involved a retaliation claim against a private employer brought under 42 U.S.C. § 2000e-3(a), Twisdale’s retaliation claim is brought pursuant to the statute protecting federal government employees at 42 U.S.C. § 2000e-16. A portion of the statute governing federal employees provides: (

a) Discriminatory practices prohibited; employees or applicants for employment subject to coverage All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in

section 102 of Title 5, in executive agencies as defined in

section 105 of Title 5 (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Regulatory Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal Government having positions in the competitive service, in the Smithsonian Institution, and in the Government Printing Office, the Government Accountability Office, and the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-16(a) (emphasis added).

Defendant acknowledges that although § 2000e-16(

a) does not expressly authorize retaliation claims for federal employees, such claims are cognizable because § 2000e-16(

d) incorporates § 2000e-5(

f) through (k), including § 2000e-5(g)(2)(A). (Def. Memo, in Supp. of Mot. Summ. J. at 8).

Section 2000e-5(g)(2)(

A) states: No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of

section 2000e-3(

a) of this title. Id. § 2000e-5(g)(2)(A) (emphasis added). Defendant does not contest the proposition that federal employees may bring a retaliation claim. Rather, in asserting that adverse employment action is an element of retaliation claims brought by federal employees, defendant contends that while § 2000e-5(g)(2)(

A) authorizes courts to remedy acts of retaliation against federal employees, there exists, an important limitation on the incorporation of §§ 2000e-5(

f) through (k):

Section 2000e-16 specifies that these subsections govern “as applicable,” in “civil actions brought hereunder” — that is, in civil actions brought under § 2000e~16. By the express terms of § 2000e-16(a), civil actions under § 2000e-16 are limited to claims involving “personnel actions.” (Memo, in Supp. of Mot. Summ. J. at 8). A waiver of sovereign immunity “cannot be implied but must be unequivocally expressed.” Irwin v. Dep’t of Veterans Af fairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (quoting U.S. v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980)); see also U.S. v.

Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). Thus, defendant argues, Burlington Northern is inapplicable in the context of federal government employment because, “the mere incorporation of remedies for violations of § 2000e-3(

a) would be insufficient to expand the Government’s sole waiver of sovereign immunity beyond the clear limits set by § 2000e-16(a).” (Memo, in Supp. Mot. Summ. J. at 3). In addressing the sovereign immunity issue, the United States Court of Appeals for the D.C. Circuit, prior to Burlington Northern, analyzed the statutory framework and concluded that federal government employees had the same rights in retaliation cases as that of private-sector employees. The court stated, [W]e must consider whether, when referenced in § 2000e-16(

d) via § 2000e-5(g)(l)-(2)(A), the general ban on retaliation in § 2000e-3(

a) is limited by the requirement in § 2000e-16(

a) that “all [Government] personnel actions” be made free from discrimination. We do not believe the prohibition is so qualified. Nothing in § 2000e-16(

d) or § 2000e-5(

g) suggests § 2000e-3(

a) is to be read differently when applied to the Government. Rochon, 438 F.3d at 1219. Following Burlington Northern, published decisions of the First, Seventh, and District of Columbia Courts of Appeal, and an unpublished decision of the Eleventh Circuit, have all applied it to retaliation claims brought by federal-government employees. See DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir.2008) (applying Burlington Northern to retaliation claim of deputy U.S. Marshal); Thomas v. Miami Veterans Med.

Ctr., 290 Fed.Appx. 317, 320 (11th Cir.2008) (applying Burlington Northern to retaliation claim of employee of Department of Veterans Affairs and stating, “[t]he Supreme Court has held that in order to sustain a Title VII retaliation claim, an employee must show that ‘a reasonable employee would have found the challenged action materially adverse.’ ”); Lapka v. Chertoff, 517 F.3d 974, 985 (7th Cir.2008) (applying Burlington Northern to retaliation claim by employee of the Department of Homeland Security); Novak v.

Nicholson, 231 Fed.Appx. 489, 495 (7th Cir.2007) (applying Burlington Northern to retaliation claim by former employee of Department of Veterans Affairs); Patterson v. Johnson, 505 F.3d 1296, 1299 (D.C.Cir.2007) (applying Burlington Northern standard to claim by employee of the United States Environmental Protection Agency); Weber v. Battista, 494 F.3d 179, 186 (D.C.Cir.2007) (applying Burlington Northern to retaliation claim by employee of the National Labor Relations Board); Nair v.

Nicholson, 464 F.3d 766, 768-69 (7th Cir.2006) (applying Burlington Northern to retaliation claim by employee of Department of Veteran Affairs and stating, “[w]hile it is now settled that retaliation to be actionable need not take the form of adverse employment action ... [t]he test is whether the conduct alleged as retaliation would be likely to deter a reasonable employee from complaining about discrimination.”); de Jesus v.

Potter, 211 Fed.Appx. 5, 11-12 (1st Cir.2006) (retaliation claim by employee of United States Postal Service remanded in light of Burlington Northern which “chang[ed] the legal standard to be applied claims of retaliation brought under Title VIL”). The court is in agreement with this authority. “Personnel actions” in § 2000e-16(

a) must be read to include § 2000e-3(

a) as interpreted by Burlington Northern. In a case not involving a federal employee, our court of appeals has previously stated in a footnote that inclusion of the term “personnel action” in § 2000e-16 indicated that “ultimate employment decisions” arose to “the general level of decision” targeted by Congress in that statute____[Page v. Bolger, 645 F.2d 227, 233 (4th Cir.1981)]. See also Boone v. Goldin, 178 F.3d 253, 255-56 (4th Cir.1999) (citing Page in another federal sector case).

Of course, § 2000e-3 does not confine its reach to “personnel actions” and thus this reasoning simply does not apply to retaliation actions ... Von Gunten v. Maryland, 243 F.3d 858, 866 n. 3 (4th Cir.2001), superceded by Burlington Northern, 126 S.Ct. at 2415. The latter sentence demonstrates that the Von Gunten footnote merely viewed § 2000e-16(

a) in isolation and not in the context of the larger statutory framework, including § 2000e-16(

d) and § 2000e-5(g), which incorporate § 2000e-3 into the remedies available for federal employees. It should be further observed that neither Von Gun-ten, Page, nor Boone involved federal employees’ retaliation claims unrelated to the employment context. The law of our circuit on this issue is presently unsettled inasmuch as the court of appeals has yet to squarely address the issue in a published decision. The court has, however, noted that “[notwithstanding the differences in wording, sections 2000e-2 and 2000e-16 generally have been treated as comparable, with the standards governing private-sector claims applied to claims under

section 2000e-16.” Bhella v. England, 91 Fed.Appx. 835, 844 (4th Cir. 2004). In a recent unpublished opinion, our court of appeals held that the Burlington Northern standard “applies to both private employees and federal employees whose retaliation claims arise under § 2000e-16(a).” Caldwell v. Johnson, 289 Fed.Appx. 579, 592 (4th Cir.2008). Finding error in the district court’s application of Von Gunten, a case applying the more restrictive pre-Burlington Northern “adverse employment action” standard to retaliation claims, the court in Caldwell reversed the lower court’s grant of

summary judgment in favor of the defendant on the plaintiffs retaliation claim brought pursuant to § 2000e-16(a). The Caldwell court began its analysis by observing that before Burlington Northern “we read the retaliation component of the federal employee statute in harmony with the private retaliation standard without scrutinizing the differing language of the statutes.” Caldwell, 289 Fed.Appx. at 588. The “adverse employment action” standard deemed inapplicable to private employee retaliation claims by Burlington Northern finds its origin in § 2000e-2(a)(1). See Von Gunten, 243 F.3d at 863 n. 1.

Thus, this court, like the Caldwell court, must “determine whether an extinct standard that originated from a different statute remains alive and well in the federal employee context.” Caldwell, 289 Fed. Appx. at 589. While noting that § 2000e-16(

a) covers “all personnel action” and thus on its face covers a “broader range of activity than the private anti-discrimination statute [§ 2000e-2(a) ],” the Caldwell court recognized that the term “ ‘personnel action[ ]’ ... adds an element that the private anti-retaliation provision does not contain.” Id. Responding to the government’s contention that this additional language evidences a Congressional intent to have two different standards, the court cited Gomez-Perez v.

Potter, — U.S. -, 128 S.Ct. 1931, 1940, 170 L.Ed.2d 887 (2008) for the proposition that “negative implications raised by disparate provisions are strongest in those instances in which the relevant statutory provisions were considered simultaneously when the language raising the implication was inserted.” Caldwell, 289 Fed.Appx. at 590 (internal quotation marks omitted). “Congress enacted § 2000e-3 in 1964, 78 Stat. 257, while it enacted § 2000e-16(

a) in 1972, 86 Stat. 111.” Id. Rejecting the parties’ differing

interpretations of the legislative history of § 2000e-16(a), the court turned to a review of Supreme Court precedent and the case law of other circuits. Reiterating that the standard for private and federal employee retaliation claims was the same prior to Burlington Northern, the court stated, On the one hand, applying the same standard to federal employees and private employees without regard to the statutory language of each provision runs afoul of the Supreme Court’s acknowledgment in White [Burlington Northern ] that-language that differs in important respects may result in differing standards.

On the other hand, it would be illogical for Congress to impose an additional element of proof on federal employees when it has provided identical remedies for federal and private employees who allege retaliation. Id. at 590-91. In Burlington Northern the Court emphasized the differing goals of the antidis-crimination and retaliation provisions: The antidiscrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status.

The antiretaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The antire-taliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct. Burlington Northern, 126 S.Ct. at 2412 (internal citation omitted).

The defendant’s proffered construction of § 2000e-(3)(a), as applied through § 2000e-16(a), “would not deter the many forms that effective retaliation can take. Hence, such a limited construction would fail to fully achieve the antiretaliation provision’s ‘primary purpose,’ namely, ‘maintaining unfettered access to statutory remedial mechanisms.’ ” Id. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)).

There is simply no reason to believe Congress intended to limit the scope of the anti-retaliation provision as applied to federal employees and thereby inhibit its purpose of maintaining unfettered access to the remedial mechanism Congress itself provided. Indeed, all published circuit court opinions following Burlington Northern have applied the Burlington Northern standard to retaliation claims of federal employees. See collection of cases at pp. 9-11, infra. Further, three unreported cases from this circuit have applied Burlington Northern to federal employee retaliation claims arising under § 2000e-16(a).

See Moore v. Leavitt, 258 Fed.Appx. 585, 586 (4th Cir.2007) (assuming for purposes of appeal Burlington Northern applies to claims of federal employees); Parsons v. Wynne, 221 Fed.Appx. 197, 198 (4th Cir.2007) (same); Brockman v. Snow, 217 Fed.Appx. 201, 206 (4th Cir.2007) (without analysis, applying Burlington Northern to federal employee retaliation claim). It is noteworthy that in support of its holding, the Supreme Court in Burlington Northern cited to Rochon, 438 F.3d 1211, a case applying the “materially adverse” standard to a federal employee’s retaliation claim. Burlington Northern, 126 S.Ct. at 2412.

In Rochon, the D.C. Circuit found that “[n]othing in § 2000e-16(

d) or § 2000e-5(

g) suggests § 2000e-3(

a) is to be read differently when applied to the Government.” Rochon, 438 F.3d at 1219. Concluding that retaliation need not occur in the employment context for federal employees to state a cognizable claim, Rochon states: Nor did the Supreme Court in any way qualify its observation in Morton v. Mancan, 417 U.S. 535, 547, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), that “the substantive anti-discrimination law embraced in Title VII was carried over and applied to the Federal Government” through the addition of § 2000e-16 in 1972. See also Dothard v.

Rawlinson, 433 U.S. 321, 331 n. 14, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977) (noting “Congress expressly indicated the intent that the same Title VII principles be applied to governmental and private employers alike” (citing H.R.Rep. No. 92-238, at 17 (1971); S.Rep. No. 92-415, at 10 (1971))). In light of the Congress’s recognized intent in 1972 to apply to the Government the principles it had in 1964 applied to private employers, we now hold that an alleged act of retaliation by the Government need not be related to the plaintiffs employment in order to state a claim of discrimination under Title VII.

Rochon, 438 F.3d at 1219; accord Loeffler v. Frank, 486 U.S. 549, 558-559, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988) (With the 1972 amendment, “Congress intended to provide federal employees with ‘“the full rights available in the courts as are granted to individuals in the private sector under Title VII.” ’ ”); Pueschel v. U.S., 369 F.3d 345, 352-353 (4th Cir.2004) (“Believing that such a system failed to provide federal employees sufficient protection against employment discrimination, Congress amended Title VII by passing the Equal Employment Opportunity Act of 1972 (“EEOA”). See 42 U.S.C. § 2000e-16.

The EEOA expressly subjects federal agencies to Title VII’s prohibitions----”); Ayon v. Sampson, 547 F.2d 446, 450 (9th Cir.1976) (Regarding the proposed enactment of § 2000e-16, “ ‘there can exist no justification for anything but a vigorous effort to accord Federal employees the same rights and impartial treatment which the law seeks to afford employees in the private sector.’ ”) (quoting H.R. REP. No. 92-238 (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2158). The rationale in Burlington Northern for allowing a cognizable retaliation claim for occurrences beyond adverse employment actions was twofold.

Burlington Northern, 126 S.Ct. at 2412-13. The Court found both the language differences between § 2000e-2(

a) and § 2000e-3(

a) and the purpose behind the anti-retaliation provision to be significant. Id. The Court explained, “purpose reinforces what language already indicates, namely, that the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Burlington Northern, 126 S.Ct. at 2412-13.

Having different requirements for anti-discrimination and anti-retaliation provisions was determined to be necessary inasmuch as one cannot secure the second objective [of deterring retaliation] by focusing only upon employer actions and harm that concern employment and the workplace. Were all such actions and harms eliminated, the antiretaliation provision’s objective would not be achieved. An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace. Id. at 2412.

There is nothing in Burlington Northern limiting its rationale from applying here. Burlington Northern cites Rochon for the proposition that retaliation can be just as effective outside of the employment context as in it. Id. (providing the following parenthetical explanation of Rochon: “Federal Bureau of Investigation retaliation against employee ‘took the form of the FBI’s refusal, contrary to public policy, to investigate death threats a federal prisoner made against [the agent] and his wife.’”).

While not commenting on the analysis in Rochon, Burlington Northern did state that “Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses.” Id. at 67, 126 S.Ct. 2405. Just as retaliation can be equally effective outside the employment context as in it, retaliation is equally pernicious in the private-sector context as the federal-employment context.

While a waiver of sovereign immunity cannot be implied but must be unequivocally expressed, courts “must be careful not to ‘assume the authority to narrow the waiver that Congress intended,’ or construe the waiver ‘unduly restrictively.’ ” Irwin, 498 U.S. at 94, 111 S.Ct. 453 (quoting Bowen v. City of New York, 476 U.S. 467, 479, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986)). In Inuin, a federal employee filed a complaint stating claims under Title VII against the Veterans Administration outside the time period for commencing an action provided by § 2000e-16(c).

The court of appeals concluded that because waivers of sovereign immunity are to be narrowly construed, the doctrine of equitable tolling applicable in the non-federal employment context did not apply to § 2000e-16(c). Rejecting that conclusion, the Supreme Court stated: Once Congress has made such a waiver, we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver.

Such a principle is likely to be a realistic assessment of legislative intent as well as a practically useful principle of

interpretation. We therefore hold that the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States. Congress, of course, may provide otherwise if it wishes to do so. Id. at 95-96, 111 S.Ct. 453. In the case at hand, it is undisputed that the United States waived its sovereign immunity and subjected itself to retaliation claims under § 2000e-3(a). Given Congress’ clear intent to afford federal employees the protections of Title VII, there is no reason to conclude that § 2000e-3(

a) has any less broad of a scope when applied in the federal-employment context through § 2000e-16(a). The use of “personnel actions” in § 2000e-16(

a) must be read in the context of the entire statutory framework which incorporates the general anti-retaliation provision in § 2000e3(a), and Burlington Northern has held that § 2000e-3(

a) encompasses conduct outside of the employment context. Burlington Northern, 126 S.Ct. at 2412-14; see also Rochon, 438 F.3d at 1219. The Supreme Court and our court of appeals have repeatedly stated that the 1972 amendment to Title VII was meant to afford federal government employees the same rights as private-sector employees. See supra at pp. 695-96. Burlington Northern invokes the policy of deterring retaliation as a reason for allowing claims for adverse actions outside of the employment context. 126 S.Ct. at 2412-13.

In furtherance of its intent to “accord Federal employees the same rights and impartial treatment which the law seeks to afford employees in the private sector,” H.R.Rep. No. 92-238 (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2158, Congress saw fit to waive the federal government’s sovereign immunity and afford federal employees a right of redress under § 2000e~3(a). To say that the scope of redressable retaliation is narrower in the federal-employment context than in the private sector would be to disregard Congress’ manifest intent.

Accordingly, the court concludes that in waiving its sovereign immunity for claims of retaliation pursuant to § 2000e-3(a), as incorporated into § 2000e-16(

a) through § 2000e-16(

d) and § 2000e-5(g)(2)(A), Congress intended to, and did, subject the federal government to the same standard as private-sector employers. The court further finds that the holding in Burlington Northern that “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” applies with equal force in the federal-employment context.

Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405 (quotation marks omitted) (citing Rochon, 438 F.3d at 1219). B. Delay in Processing Grievances Constitutes Material Harm Defendant’s objections acknowledge there is no question that the alleged discriminatory act — the delay in processing the grievances — was related to plaintiffs employment.

Instead, defendant contends the discussion in Burlington Northern of what degree of harm is necessary to maintain an actionable claim bars the claim. (Obj. to 2nd PF & R at 8). “Defendant acknowledges that delayed grievance processing may, in certain circumstances, support a claim of retaliation.” (Id. at 9, citing Reply to Resp. to Mot. Summ. J. at 5). The defendant, however, argues that plaintiff cannot carry his burden of showing the necessary level of harm in this case. (Id. at 7). Actionable retaliation must rise to the level of “material harm.” Burlington Northern, 126 S.Ct. at 2415.

This standard is meant to “separate significant from trivial harms.” Id. In order to satisfy the requisite standard, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in the context means it well might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” ’ ” Id. (quoting Rochon, 438 F.3d at 1219). In Burlington Northern, the Court found that reassignment to a less desirable job and a period of suspension without pay to be material. Id. at 2416.

The requisite material harm was intentionally phrased “in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.” Id. at 2415. Defendant points out that, in this context, rather than dissuading him from engaging in protected activity, the delayed processing propelled plaintiff to file another EEO complaint on July 24, 2001. (Obj. to 2nd PF & R at 9). This fact does not cause plaintiffs claim to fail. The standard articulated in Burlington Northern is objective, not subjective. Id. at 2415.

Furthermore, there was a substantial delay following the filing of the EEO complaint on July 24, 2001. It was not until September 23, 2002, that the grievance process was completed. (2nd PF & R at 706). Indeed, the harm was just as great after the filing of the EEO complaint on July 24, 2001, as before that date. The magistrate judge summarized the harm as follows: The fact remains that it took almost two years for the resolution of Plaintiffs grievances. Ms. Mitchell had to be ordered to respond to both the grievances themselves and the grievance examiner’s report. Whether Ms.

Mitchell’s comments about another management employee filing an EEO complaint indicate a discriminatory animus, and whether the reasons for the delays offered by the Defendant are a pretext, are questions appropriately decided by a jury. (2nd PF & R at 721). Defendant has acknowledged the significant delay in the processing of the grievances. (Obj. to 2nd PF & R at 2).

There were several violations of the time periods set forth in the five steps of grievance procedure in the employee handbook, and the entire grievance procedure took significantly and inexcusably longer than the handbook’s promise that “[w]henever possible the decision on the grievance should be made within 170 days from the date of the grievance.” (2nd PF & R at 703, 706, 720-21). As the court stated in its earlier order, [pjlaintiffs contentions would appear to describe actions of delay by his employer that a reasonable person would find “materially adverse”.

An employer’s purposeful allowance of the languishing, over an unusually extended period of time, of an employee’s grievance may likely be an exploitation of the exhaustion requirement that effectively renders the employee’s administrative remedy unavailable, thereby producing significant injury or harm. (08-02-06 Order at 9).

Although the court’s statement was made in the context of a motion to dismiss and assumed all of plaintiffs allegations as true, plaintiff has made the necessary showing of a considerable delay in the grievance procedure and defendant is not contesting that the delay occurred as claimed. (Obj. to 2nd PF & R at 2). No development has occurred that would change the court’s stance in its previous order that the alleged delay in this case may constitute material harm. The Proposed Findings and Recommendation of the magistrate judge are adopted. III.

For the foregoing reasons, it is ORDERED that the defendant’s motion for

summary judgment be, and it hereby is, denied. The Clerk is directed to forward copies of this written opinion and order to all counsel of record, the pro se plaintiff, and the United States magistrate judge. PROPOSED FINDINGS AND RECOMMENDATION MARY E. STANLEY, United States Magistrate Judge. Pending is Defendant’s Motion for

Summary Judgment (docket sheet document #57). This matter was referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). PROCEDURAL HISTORY On September 10, 2004, Plaintiff, who is an employee of the Internal Revenue Service (the “IRS”), instituted this civil action against the Secretary of the United States Department of the Treasury under Title VII of the Civil Rights Act of 1964, as amended (hereinafter “Title VII”).

On December 14, 2004, Plaintiff was permitted to file an Amended Complaint, in order to include a prayer for relief. (# 12). On January 28, 2005, Defendant filed a Motion to Dismiss, or in the alternative, Motion for

Summary Judgment (# 14) and a Memorandum of Law in support thereof (# 15). On March 24, 2005, Plaintiff filed a response in opposition to Defendant’s motion (# 20) and, on April 8, 2005, Defendant filed his reply (# 21).

On August 17, 2005, 2005 WL 4600225, the undersigned submitted a Proposed Findings and Recommendation (“PF & R”) (# 22), proposing that the presiding District Judge find that an employer’s delay in processing grievances may constitute an adverse employment action and, thus, Plaintiff had set forth a prima facie case of retaliation with regard to his claim that Defendant delayed processing five agency grievances filed by Plaintiff in retaliation for Plaintiffs prior Equal Employment Opportunity (“EEO”) activity.

Accordingly, the undersigned recommended that Defendant’s Motion to Dismiss, or in the alternative, Motion for

Summary Judgment, be denied as to that claim. (Id.) The undersigned further proposed that the presiding District Judge find that Plaintiff had failed to exhaust his administrative remedies concerning his retaliation claim related to his 2002 performance evaluation and bonus, and that his Amended Complaint failed to state a claim of a hostile work environment under Title VII.

Accordingly, the undersigned recommended that those claims be dismissed. (Id.) Defendant filed objections to the PF & R, asserting that Plaintiff failed to allege facts to support a finding that he had suffered an adverse employment action. (#27).

On August 2, 2006, 2006 WL 2222231, the presiding District Judge entered a Memorandum Opinion and Order adopting the undersigned’s PF & R “except to the extent that the magistrate judge found it necessary that plaintiff describe an adverse employment action,” and dismissing all of Plaintiffs claims, except the retaliation claim concerning the delay in resolving Plaintiffs grievances. (# 34 at 9-10). In finding that Plaintiffs retaliation claim could go forward, the District Court cited the United States Supreme Court’s recent ruling in Burlington Northern & Santa Fe Railway Co. v.

White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Based upon Burlington Northern, the presiding District Judge found: The United States Supreme Court quite recently held that the anti-retaliation provision is not “coterminous” with Title VIPs substantive anti-discrimination provision and that it “extends beyond workplace-related or employment-related retaliatory acts and harm.” Burlington Northern & Santa Fe Railway Co. v. White, [548 U.S. 53] 126 S.Ct. 2405, 2414 [165 L.Ed.2d 345] (2006).

It is not, therefore, necessary to point to an adverse employment action to support a claim for retaliation [footnote omitted]. To prove actionable retaliation, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, “which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Id. at 2415, citations omitted. (# 34 at 7).

The presiding District Judge’s Memorandum Opinion and Order further states: Plaintiffs contentions would appear to describe actions of delay by his employer that a reasonable person would find “materially adverse”. An employer’s purposeful allowance of the languishing, over an unusually extended period of time, of an employee’s grievance may likely be an exploitation of the exhaustion requirement that effectively renders the employee’s administrative remedy unavailable, thereby producing significant injury or harm. (Id. at 9).

On April 23, 2007, after the conclusion of the discovery period, Defendant filed the instant Motion for

Summary Judgment (# 57) and a Memorandum of Law in support thereof. (#58). On May 4, 2007, Plaintiff filed a Response to the Motion for

Summary Judgment. (# 59). On May 29, 2007, Defendant filed a Reply brief. (# 64). On June 8, 2007, Plaintiff filed a Motion to Include a Sworn Affidavit in support of his Response, with the affidavit attached. (# 65). That motion was granted by the undersigned on August 21, 2007. On August 24, 2007, the undersigned ordered that certain pages from the EEO investigative file of Plaintiffs Agency Case No. TD 01-3224 be made a part of the record. (# 67). Plaintiff cited these pages in support of the allegations made in his Amended Complaint (# 12) and his Response to Defendant’s Motion for

Summary Judgement (# 59), and the undersigned found that the inclusion of these pages in the court record would be helpful to the determination of Defendant’s Motion for

Summary Judgment. Those documents may be found in docket # 68. STANDARD OF REVIEW Pursuant to Rule 56(

c) of the Federal Rules of Civil Procedure,

summary judgment is appropriate if the pleadings and evidence of record show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for

summary judgment, the court will not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party “may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which a jury could reasonably find for the plaintiff.” Id. at 252,106 S.Ct. 2505. Likewise, “[u]n-supported speculation is not sufficient to defeat a

summary judgment motion.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987). STATEMENT OF UNDISPUTED MATERIAL FACTS As discussed previously, Plaintiff works for the IRS as a Territory Manager for the Small Business/Self-Employed Division (“SB/SE Division”), and has been employed by the IRS for over 23 years. (# 12 at 1; # 58 at 3). In 1997, Plaintiff was employed as the chief of the IRS’s Quality Measurement Branch in Indianapolis, Indiana.

While employed in that capacity, Plaintiff, a white male, participated in the investigation of an EEO complaint filed by Barry Madison, a black female employee. (See Twisdale v. Snow, 325 F.3d 950, 951 (7th Cir.2003)) (# 14, Ex. 2). The employee subsequently filed a separate discrimination claim against Plaintiff. (Id.) Plaintiff subsequently filed four EEO complaints of his own, alleging claims of retaliation and harassment by his black supervisors in Indiana, Mary Murphy and James Rogers, in response to his opposition of Ms. Madison’s discrimination claim. (# 68 at 63).

Then, on May 26, 2000, Plaintiff filed a lawsuit concerning those same retaliation claims in the United States District Court for the Southern District of Indiana. (# 14, Ex. 2; # 68 at 63). The District Court in Indiana granted

summary judgment to the IRS in that case, and Plaintiffs subsequent appeal was unsuccessful. (# 14, Ex. 2). During the year 2000, Plaintiff filed five agency grievances alleging retaliation on the basis of his prior EEO activity. (# 57, Ex. 1, Attach. A at 20). The grievances were filed on the following dates and raised the following claims: • Grievance filed on 4-6-2000: My supervisor gave me a performance counseling memorandum.

The issues clearly had no business merit and were in retaliation for the fourth EEO complaint I had filed. • Grievance filed on 4-16-2000: My supervisor gave me a memorandum containing negative and unwarranted feedback on my leadership skills. Ms. Murphy had used an unorthodox and bias process to accomplish this action. This was again in retaliation for the fourth EEO complaint I had filed. • Grievance filed on 6-26-2000: This contains three issues.

My supervisor had lied on her EEO statement, violated IRS procedures in keeping and using recordation that should have been disposed of and violated the privacy act. • Grievance filed on 8-1-2000: My acting supervisor falsely accused me of violating

section 1204. • Grievance filed on 10-22-2000: My supervisor lowered my evaluation without justification or explanation. (Id.) Around this time, the IRS underwent a reorganization. On October 1, 2000, Plaintiff began working as a Territory Manager for Compliance Area 6 of the SB/SE Division, and was based in West Virginia. On October 22, 2000, Renee Mitchell was promoted to the position of Compliance Area 6 Director for the SB/SE Division in Detroit, Michigan, and became Plaintiffs immediate supervisor. (# 59, Ex. A, ¶ 2; # 68 at 67).

Robert Finer, an attorney with IRS’s General Legal Services Division, was assigned to handle Plaintiff’s EEO complaints. On or about June 28, 2000, Mr. Finer requested copies of Plaintiffs grievances filed at that time. (# 12 at 6, ¶ 28; # 68 at 77, 79, 326).

On or about August 18, 2000, Plaintiffs grievances were sent to Esra Ozben, an Employee Relations Specialist in the Office of Workforce Relations, after General Legal Services determined that only one of Plaintiffs grievances related to his EEO complaints, and that the others should be processed through the normal grievance procedures. (# 12 at 6, ¶ 29; # 68 at 77, 330).

However, according to an e-mail sent by Esra Ozben to Susan Anderson and Elaine Rogers on September 7, 2000, Plaintiffs grievances were essentially placed “on hold” while they attempted to determine if a global settlement of Plaintiffs Title VII case and the grievances was possible. (# 12 at 6, ¶¶ 28-33; # 68 at 68-69, 77, 78-80, 341). During this time period, there was also some confusion as to who was the appropriate management official to review and issue a decision concerning Plaintiffs grievances. However, by December 1, 2000, Ms.

Ozben determined that Renee Mitchell was the appropriate management official to handle the grievances. (# 12 at 6-7, ¶¶ 30, 34, 37; # 59 at 3; # 68 at 345-346). Ms. Ozben sent the grievance files to Ms. Mitchell on December 5, 2000, with instructions to set up an appointment with Plaintiff as soon as she received them. (# 12 at 7; # 59 at 3 and Ex. B at 2; # 68 at 346). Ms. Ozben further instructed Ms. Mitchell to “proceed with the grievance process as usual,” and not to wait for an EEO settlement. (# 12 at 7, ¶ 38; # 59 at 3; #68 at 346).

On October 6, 2000, the Internal Revenue Manual (“IRM”) 0771.1, Grievance Handbook was designated at the “Interim Guidance on Employee Grievance System.” (# 59 at 3; # 68 at 134).

Section 118 of the Handbook, entitled “Avoidance of Delay,” provides: Each grievance shall be given prompt consideration. Every effort shall be made to process the grievance in a timely manner. Whenever possible the decision on the grievance should be made within 170 days from the date of the grievance. (# 12 at 5, ¶ 26; # 68 at 114). As provided in

Section 133 of the Grievance Handbook, the grievance procedure is set up in five steps, each of which has specified time limitations. Step 1 provides for the employee to address the grievance with his or her supervisor. Step 2 provides for the employee to address the grievance with the “appropriate management official.” If the supervisor is also the appropriate management official, then Steps 1 and 2 are combined. Step 3 provides for the employee to address the grievance with a “deciding official.” In Plaintiffs case, Ms. Mitchell was designated as the “Deciding Official” on Plaintiffs five grievances. (# 57-5, Ex. 4, Answer to Interrogatory No. 3, Attach. A).

Section 133 of the Grievance Handbook specifically provides that, at Step 3, a determination of the merits of the grievance be made by the deciding official and a written decision be issued within 15 days. (# 59 at 3; # 68 at 118). If the grievance is not resolved by Step 3, then Step 4 provides for the designation of a “griev-anee examiner,” who will submit a report of findings and recommendations to the deciding official. (# 68 at 117-118).

Step 5 requires that, within 10 days of receiving the grievance examiner’s report, the deciding official (1) accept the grievance examiner’s report and issue a decision on the grievance, or (2) grant the relief sought by the employee and issue a decision accordingly, whether or not it is in accord with the grievance examiner’s recommendations, or, that, within 20 days of receiving the grievance examiner’s report, the deciding official prepare a specific statement of objections to the grievance examiner’s recommendations and submit it to the next highest administrative level for a final decision. (Id.) The Grievance Handbook further provides: After 90 days have passed from the date the grievance was filed, and if the griev-ant has not yet been given an opportunity to request the designation of a grievance examiner due to delays in processing caused by management, the grievant may request such designation through the Director, Human Resources Division .... (# 68 at 114).

On January 12, 2001, when nothing had been done about his grievances, Plaintiff contacted the Workforce Relations Office and requested that a grievance examiner be assigned to hear his grievances. (# 12 at 8, ¶ 39; # 59 at 4; # 68 at 350). Plaintiff also asked why there had been such a delay in the processing of his grievances. (Id.) He apparently received no explanation.

On February 6, 2001, Plaintiff made a second request for the assignment of a grievance examiner to Esra Ozben, and expressed his concern that no action had been taken to render a decision on his grievances. (# 12 at 8, ¶ 42; # 59 at 4; # 68 at 349). On February 7, 2001, Ms. Ozben responded and indicated that she had asked Ms. Mitchell to contact Plaintiff about scheduling a meeting as soon as possible. (#68 at 349). That same day, Ms. Mitchell contacted Plaintiff to

schedule an appointment to hear his grievances. (# 12 at 8, ¶ 43; #68 at 62). On February 14, 2001, Plaintiff met with Ms. Mitchell in Detroit to hear his grievances. (# 12 at 8, ¶ 44; # 68 at 62). Apparently, sometime in March of 2001, Ms. Mitchell advised Plaintiff by telephone that she did not believe she had the authority to provide the relief that Plaintiff requested. (# 12 at 8, ¶ 45; # 68 at 62). On March 23, 2001, Alter Sendler was assigned as a grievance examiner for Plaintiffs grievances. (# 12 at 8, ¶ 46; # 68 at 82).

However, Plaintiffs Complaint alleges that Plaintiff was not informed of this assignment until September of 2001, despite his inquiries to the Workforce Relations Office and the Commissioner himself. (#12 at 9-10, ¶¶ 47, 48, 51; #68 at 62,148). No progress having been made with his grievances, Plaintiff sought EEO counseling on May 21, 2001 (# 12 at 9, ¶ 49; # 68 at 30), and on July 24, 2001, Plaintiff filed a formal EEO Complaint alleging retaliation through the failure to process his grievances. (# 12 at 9, ¶¶ 49, 50; # 68 at 17).

The Grievance Handbook provides that a decision from the grievance examiner should be received within 60 days. (# 68 at 118). However, Mr. Sendler could not begin his examination until a decision letter was received from Ms. Mitchell. A written decision on Plaintiffs grievances was not issued until August 23, 2001, 261 days after Ms. Mitchell was assigned to handle the grievances, and after Ms. Mitchell was told to make a response. (# 68 at 69). The response was ultimately executed by Daniel Nally, the acting Area Director, in Ms. Mitchell’s absence. (# 68 at 70, 142).

The response denied all of Plaintiffs requested remedies. (# 12 at 9, ¶ 52; # 68 at 140-142). Once Mr. Sendler received the written decision, he asked Plaintiff to make a settlement offer on all five grievances, which Plaintiff did on September 18, 2001. (# 12 at 10, ¶ 57; # 68 at 156-157). Ms. Mitchell apparently did not receive a copy of the settlement statement. Thus, on October 9, 2001, Mr. Sendler faxed Ms. Mitchell a copy of the settlement offer and requested a response by October 17, 2001. However, Ms.

Mitchell did not respond by that date, and no response to the settlement offer was ever received. (# 12 at 11, ¶¶ 59, 60; # 68 at 85). On November 12, 2001, Mr. Sendler completed his examination of Plaintiffs grievances and submitted a written report to Ms. Mitchell. (# 12 at 11, ¶ 61; # 68 at 158-164). According to Plaintiffs Amended Complaint, Mr. Sendler granted Plaintiff most of the relief he sought. The Amended Complaint states: For example on Grievance 1, the memorandum of counseling was removed, on Grievance 2, the memorandums from Mr. Jones, Ms. Murphy, and Mr.

Twis-dale’s rebuttal are all removed, on Grievance 3, Mr. Twisdale’s EPF and other files maintained on him are to be brought into compliance with the Privacy Act and other record keeping requirements, on Grievance 4, Ms. Kirk’s memorandum is removed from his file and on Grievance 5 the two sentences are removed from his evaluation. In addition, the Examiner makes two other recommendations that were not requested by the Plaintiff. He states Mr. Twis-dale should be given a distinguished rating certificate and an explanation why management has delayed responding to his grievances. (# 12, at 11, ¶ 62). Mr.

Sendler’s report directed Ms. Mitchell to “Please process this report as described in IRM 0771.1,

Section 133, Step 5 and/or Section 145(8).” (# 68 at 164). In accordance with

Section 133, Step 5, Ms. Mitchell had 10 days to issue a decision accepting the report, or 20 days to submit a written objection to the next highest level. (# 68 at 118-119). Under Section 145(8), which governs grievances related to the “Performance Management and Recognition System” (“PMRS”), Ms. Mitchell was to prepare a final and binding decision concerning Plaintiffs performance rating within 10 days of receipt of the grievance examiner’s report. (# 68 at 121). Ms. Mitchell did none of these things in a timely manner. Despite several reminders by Plaintiff, Ms.

Mitchell had still not issued a response to the grievance examiner’s report by August 12, 2002. (#12 at 11-12, ¶¶ 63-65; # 68 at 363). Thus, on August 13, 2002, Plaintiff sent an e-mail message to Tom Hull, the Deputy Director of the SB/SE Compliance Field Operations, and Ms. Mitchell’s immediate supervisor, requesting his assistance to require Ms. Mitchell to respond to the report. (# 12 at 12, ¶ 66). Mr. Hull’s response to Plaintiff stated: “I talked to Renee today and she assured me that you will be receiving a response soon.

I made it clear that it was important that the response be sent to you prior to her leaving her current position.” (# 12 at 12, ¶ 67; #59 at 8, 25). On September 23, 2002, 315 days after the submission of the grievance examiner’s report, Ms. Mitchell issued a decision to the Plaintiff accepting the report. (# 12 at 12, ¶ 68). At that time, a total of 657 days had passed since Plaintiffs grievances had been sent to Ms. Mitchell. ANALYSIS A. Prima facie case of retaliation.

Plaintiff engaged in protected activity under Title VII To establish a prima facie case of retaliation, Plaintiff must establish that he engaged in protected activity. There is no question in the matter at bar that Plaintiff had participated in protected EEO activity and that Defendant was aware of that activity. Accordingly, the undersigned proposes that the presiding District Judge FIND that Plaintiff has satisfied this first prong of the prima facie case. Plaintiff suffered a materially adverse action a.

Applicability of Burlington Northern decision Plaintiff must also establish that Defendant took a materially adverse action against Plaintiff. However, the primary issue now before the court is whether the adverse action must be a “personnel” or “employment-related” action. The United States government enjoys sovereign immunity from suit unless Congress, in enacting legislation, has waived that immunity. The United States Supreme Court has repeatedly held that a waiver of sovereign immunity “ ‘cannot be implied but must be unequivocally expressed.’ ” Irwin v.

Dep’t of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)(quoting United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980)); see also United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). In Nordic Village, the Court further stated that: “the Government’s consent to be sued ‘must be construed strictly in favor of the sovereign,’ McMahon v. United States, 342 U.S. 25, 27, [72 S.Ct. 17, 19, 96 L.Ed. 26] (1951), and not ‘enlarge[d] ... beyond what the language requires.’ ” Ruckelshaus v.

Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3278, 77 L.Ed.2d 938 (1983) (quoting Eastern Transportation Co. v. United States, 272 U.S. 675, 686, 47 S.Ct. 289, 291, 71 L.Ed. 472 (1927)), a rule of construction that we have had occasion to reaffirm once already this Term, see Ardestani v. INS, 502 U.S. 129, 137, 112 S.Ct. 515, 520-521, 116 L.Ed.2d 496 (1991). 503 U.S. at 34,112 S.Ct. 1011.

As stated previously herein, the presiding District Judge denied the Defendant’s Motion to Dismiss, relying upon the Supreme Court’s decision in Burlington Northern, supra, 126 S.Ct. 2405 2414 (2006) to find that Plaintiff need not show that the materially adverse action taken by the Defendant was “employment-related.” Burlington Northern was a case involving a private sector employer, and interpreted the anti-retaliation provision found in 42 U.S.C. § 2000e-3(a). Defendant’s Motion for

Summary Judgment argues that the Burlington Northern decision is inapplicable in the context of federal government employment, because the federal government has not waived sovereign immunity beyond the limited waiver for “personnel actions” contained in

Section 2000e-16(

a) of Title VII. (# 58 at 3). The undersigned does not believe the waiver of sovereign immunity concerning retaliation lawsuits by federal employees can be drawn so narrowly. A brief discussion of the authority involved and the progression of the precedent concerning it is in order.

Section 2000e-2(

a) governs “Unlawful employment practices.” It states: It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(emphasis added).

Section 2000e-3 governs “Other unlawful employment practices,” such as retaliation, which is discussed in subsection (a). It states: (

a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings. It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter. 42 U.S.C. § 2000e-3(a). These provisions were initially enacted as part of the Civil Rights Act of 1964. In 1972, Congress enacted a new

section of the Civil Rights Act, 42 U.S.C. § 2000e-16, governing “Employment by Federal Government.” The present version of subsection (

a) of that

section provides as follows: (

a) Discriminatory practices prohibited; employees or applicants for employment subject to coverage. All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in

section 102 of Title 5, in executive agencies as defined in

section 105 of Title 5 (including employees and applicants for employment who are paid from nonap-propriated funds), in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal Government having positions in the competitive service, in the Smithsonian Institution, and in the Government Printing Office, the General Accounting Office, and the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-16(a)(emphasis added).

As an employee of the IRS, an executive agency of the United States government, Plaintiff is a covered employee under this section. It is apparent from the statutory text that

section 2000e-16(

a) does not contain any specific language about “retaliation” or “discrimination” on the basis of participation in enforcement proceedings, as does

section 2000e-3(a). Yet, as discussed by Defendant in his Memorandum of Law in support of his Motion for

Summary Judgment: Although § 2000e-16(

a) does not expressly authorize retaliation claims against the Government, such claims are cognizable because § 2000e-16(

d) incorporates §§ 2000e-5(

f) through (k)[footnote omitted]. One of the incorporated subsections, § 2000e-5(g), authorizes courts to order remedies for retaliation [FN 7]. [FN 7] —

Section 2000e-5(g)(2)(

A) provides: No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any backpay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religio[n], sex, or national origin or in violation of

section 70k(a)m U.S.C. § 2000e-3(a)J 42 U.S.C. § 2000e-5(g)(2)(A) (emphasis added). (# 58 at 8 n. 7). Thus, retaliation claims are cognizable under § 2000e-16(

a) because of its incorporation of § 2000e-5(g). Although § 2000e-5(g)(2)(

A) refers to remedies for violations of § 2000e-3(a), Defendant attempts to distinguish retaliation claims under § 2000e-16(

a) from those under § 2000e-3(

a) based upon the statutory text. In footnote 7 of his Memorandum of Law, Defendant continues: Notably, § 2000e-5(g)(2)(

A) only authorizes courts to order the specified remedies in cases where an employee or applicant is “refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged” — all traditional adverse personnel actions. (# 58 at 8 n. 7). Defendant’s Memorandum of Law further states: There is, however, an important limitation on the incorporation of §§ 2000e-5(

f) through (k):

Section 2000e-16(

d) specifies that these subsections govern “as applicable,” in “civil actions brought hereunder” — that is, in civil actions brought under § 2000e-16. By the express terms of § 2000e-16(a), civil actions under § 2000e-16 are limited to claims involving “personnel actions.” 42 U.S.C. § 2000e-16(a). Moreover, given that waivers of sovereign immunity must be “unequivocally expressed,” the mere incorporation of remedies for violations of 2000e-3(

a) would be insufficient to expand the Government’s sole waiver of sovereign immunity beyond the clear limits set by 2000e-16(a). Nordic Village, 503 U.S. at 33 [112 S.Ct. 1011]. Accordingly, both discrimination and retaliation claims by federal employees are confined to suits involving adverse personnel actions. (# 58 at 7-8). In the Fourth Circuit, the law concerning what type of conduct is actionable under these statutes has steadily evolved. In 1981, the Court decided Page v. Bolger, 645 F.2d 227 (4th Cir.1981), a case involving a federal postal employee.

In Page, the court held: The proper object of inquiry in a claim of disparate treatment under § 717 [§ 2000e-16] is whether there has been “discrimination” in respect to “personnel actions affecting (covered) employees or applicants for employment....” 42 U.S.C. § 2000e-16(a)(emphasis added).

Disparate treatment theory as it has emerged in application of this and comparable provisions of Title VII, most notably § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1), has consistently focused on the question whether there has been discrimination in what could be characterized as ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating. This is the general level of decision we think contemplated by the term “personnel actions” in § 717.

By this, we suggest no general test for defining those “ultimate employment decisions” which alone should be held directly covered by § 717 and comparable antidiscrimination provisions of Title VII. Id. at 233. In 2001, the Fourth Circuit decided Von Gunten v. Maryland, 243 F.3d 858 (4th Cir.2001), addressing the standard to be applied in retaliation cases under

section 2000e-3(a). In Von Gunten, the court stated: But “ultimate employment decision” is not the standard in this circuit .... we have expressly rejected distinctions, like those drawn by the Mattern [v. Eastman Kodak Co., 104 F.3d 702 (5th Cir.1997)] court, between § 2000e-2 and 2000e-3, reasoning that “conformity between the provisions of Title VII is to be preferred.” Ross v. Communications Satellite Corp., 759 F.2d 355, 366 (4th Cir.1985). 243 F.3d at 865.

The court ultimately held that “conduct short of ‘ultimate employment decisions’ can constitute adverse employment action for purposes of § 2000e-3(a),” but restricted actionable conduct to discriminatory acts or harassment that “adversely affected ‘the terms, conditions, or benefits’ of the plaintiffs employment.” Id. (emphasis added)(citing Munday v. Waste Mgmt. of North America, Inc., 126 F.3d 239, 243 (4th Cir.1997)). In Von Gunten, the Court specifically distinguished

section 2000e-16 from

section 2000e-3. The Court stated: Significantly, in Page, the employee sued not under § 2000e-3, which proscribes retaliation in the private sector, but under § 2000e-16, an anti-discrimination provision that applies only to federal sector employees. See id. at

Section 2000e-16 provides in relevant part that “all personnel actions ” shall be free from any discrimination. 42 U.S.C. § 2000e-16 (1994). We reasoned in Page that inclusion of the term “personnel action” in § 2000e-16 indicated that “ultimate employment decisions” arose to the “general level of decision” targeted by Congress in that statute. Id. at 233. See also Boone v. Goldin, 178 F.3d 253, 255-56 (4th Cir.1999)(eiting Page in another federal sector case).

Of course, § 2000e-3 does not confine its reach to “personnel actions” and thus this reasoning simply does not apply to retaliation actions, like the one at hand. 243 F.3d at 866 n. 3. Based upon Page and Von Gunten, Defendant’s argument that discrimination or retaliation claims under

section 2000e-16 are limited to those that affect “personnel actions” appears to have merit. In Baqir v. Principi, 434 F.3d 733 (4th Cir.2006), however, the Fourth Circuit addressed a retaliation claim brought by a black, .Muslim, Pakastani doctor employed by the Department of Veterans Affairs, who had sought EEO counseling and filed an administrative complaint. The plaintiff therein had identified acts of alleged retaliation by federal government officials that included impoundment of household goods, reporting the denial of his request for privileges in a national databank, and demanding the return of “special pay.” Id. at 747. The court upheld a grant of

summary judgment to the government defendant on the basis that the plaintiff had not demonstrated that the defendant was aware of his prior EEO activity. However, the court implied that conduct, such as that alleged by the plaintiff to be retaliatory, which did not directly relate to the plaintiffs terms, conditions, or benefits of employment, could be considered “adverse actions” sufficient to sustain a retaliation claim. Id. at 748.

In making that statement, the court left out the word “employment,” as it had been used in Von Gunten (requiring an “adverse employment action” to make a prima facie case of retaliation under § 2000e-3(a)). The undersigned believes this omission to be significant. On June 22, 2006, the United States Supreme Court decided Burlington Northern, supra, which, as previously stated, was a private sector case.

There, the Court recognized that “[t]he language of the substantive provision [§ 2000e-2] differs from that of the anti-retaliation provision [§ 2000e-3(a)] in important ways” and that “the question is whether Congress intended its different words to make a legal difference.” The Court further stated: There is strong reason to believe that Congress intended the differences that its language suggests, for the two provisions differ not only in language but in purpose as well.

The anti-discrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious or gender-based status. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-801, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status.

The anti-retaliation provision seeks to prevent harm to individuals based on what they do, ie., their conduct. To secure the first objective, Congress did not need to prohibit anything other than employment-related discrimination. The substantive provision’s basic objective of “equality of employment opportunities” and the elimination of practices that tend to bring about “stratified job environments,” id. at 800, 93 S.Ct. 1817, would be achieved were all employment-related discrimination miraculously eliminated.

But one cannot secure the second objective by focusing only upon employer actions and harms that concern employment and the workplace. Were all such actions and harms eliminated, the anti-retaliation provision’s objective would not be achieved. An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace. See, e.g., Ro-chon v.

Gonzales, 438 F.3d [1211], at 1213 [ (D.C.Cir.2006) ] (FBI retaliation against employee “took the form of the FBI’s refusal, contrary to policy to investigate death threats a federal prisoner made against [the agent] and his wife”); Berry v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (C.A.10 1996)(finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination). A provision limited to employment-related actions would not deter the many forms that effective retaliation can take.

Hence, such a limited construction would fail to fully achieve the anti-retaliation provision’s “primary purpose,” namely, “[m]aintain-ing unfettered access to statutory remedial mechanisms.” Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). 126 S.Ct. at 2412. Thus, the Supreme Court has distinguished the standard for discrimination claims from that for retaliation claims based upon their purpose. Plaintiff recognizes this important policy distinction in his briefs.

Plaintiffs Response asserts that public sector employees are entitled to the same protections as private sector employees. Plaintiff states: The High Court did not directly address the question of whether the conduct it found offensive in Burlington Northern, and covered by 42 U.S.C. § 2000e-3(a), was to be applied to federal sector employees covered by 42 U.S.C. § 2000e-16. The Plaintiff submits that there is no reason why a federal employee should be covered by a different standard in light of the relevant precedent of the High Court in Loeffler v.

Frank, 486 U.S. 549, 559 [108 S.Ct. 1965, 100 L.Ed.2d 549] (1988), citing Chandler v. Roudebush, 425 U.S. 840, 841 [96 S.Ct. 1949, 48 L.Ed.2d 416] (1976), quoting S.Rep. No. 92-415, p. 16 (1971). There, the High Court opined that “Congress intended to provide federal employees with ‘the rights available in the courts as are granted to individuals in the private sector under Title VII.’” The protection against retaliation for private sector employees, that the High Court recognized in Burlington Northern, should not be construed to exclude public sector employees. Moreover, the High Court relied upon the D.C.

Circuit’s decision in Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006), a case involving a federal sector retaliation claim, to fashion its decision in Burlington Northern. The Rochon court held that a retaliation claim was to be measured by a different standard than that applied in workplace discrimination cases. The Rochon court further held, and the High Court agreed, that any conduct which might dissuade “a reasonable worker from making or supporting a charge of discrimination,” met the test for retaliation for federal workers under Title VII. (# 59 at 10-11).

In Rochon, an African American special agent of the Federal Bureau of Investigation (“FBI”) alleged that the FBI’s failure to investigate threats made against the agent and his family by a federal prisoner was discriminatory and done in retaliation for the agent’s prior EEO activity. The failure to investigate these threats was clearly unrelated to any term, condition or benefit of the agent’s employment and, thus, did not concern a “personnel action.” In summarizing the issue before the court, the Circuit Court stated: Here we must determine whether the Government is similarly liable under § 2000e-3(

a) for retaliation that does not come in the form of a personnel action. In other words, we must consider whether, when referenced in § 2000e-16(

d) via § 2000e-5(g)(l)-(2)(A), the general ban on retaliation in § 2000e-3(

a) is limited by the requirement in § 2000e-16(

a) that “[a]Il [Government] personnel actions” be made free from discrimination. We do not believe the prohibition is so qualified. Nothing in § 2000e-16(

d) or § 2000e-5(

g) suggests § 2000e-3(

a) is to be read differently when applied to the Government. Nor did the Supreme Court in any way qualify its observation in Morton v. Mancari, 417 U.S. 535, 547, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), that “the substantive anti-discrimination law embraced in Title VII was carried over and applied to the Federal Government” through the addition of § 2000e-16 in 1972. See also Dothard v. Rawlinson, 433 U.S. 321, 331 n. 14, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977)(noting “Congress expressly indicated the intent that the same Title VII principles be applied to governmental and private employers alike” (citing H.R.Rep.

No. 92-238, at 17 (1971); S.Rep. No. 92-415, at 10 (1971))). In light of the Congress’s recognized intent in 1972 to apply to the Government the principles it had in 1964 applied to private employers, we now hold that an alleged act of retaliation by the Government need not be related to the plaintiffs employment in order to state a claim of discrimination under Title VII. 438 F.3d at 1219. The court in Rochon further explained that this rationale is consistent with the Equal Employment Opportunity Commission’s (“EEOC”)

interpretation of Title VII. As noted by the court, the EEOC’s Compliance Manual states: “The statutory retaliation clauses [including that of Title VII] prohibits any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.” EEOC Compliance Manual,

Section 8-II.D.3 (1998). 438 F.3d at 1218. The Rochon court then cited Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), in which the Supreme Court stated: It would be destructive of this purpose of the anti-retaliation provision [that is, to maintain unfettered access to statutory remedial mechanisms] for an employer to be able to retaliate with impunity against an entire class of acts under Title VII — for example, complaints regarding discriminatory termination. The Rochon court also noted that limiting the

interpretation of § 2000e-16(

a) to only recognize retaliation claims concerning “personnel actions” would allow a federal government employer to retaliate against an employee “with impunity” “as long as the employer takes an action unrelated to the plaintiffs employment.” 438 F.3d at 1218. In his Reply, Defendant notes that the United States Court of Appeals for the Fourth Circuit has not directly addressed this issue, but cites to a decision out of the Eastern District of Virginia, in which the court, relying strictly on the statutory language, held that the Burlington Northern decision was inapplicable in federal sector employment.

See Ridgely v. Chao, Civil Action No. 1:06-343 (E.D.Va., Dec. 19, 2006). (# 64 at 3 and Ex. A). In both of his briefs, Defendant also seeks to limit the Supreme Court’s citation of Rochon in Burlington Northern to defining the “materially adverse” standard. Defendant’s initial Memorandum of Law in support of his Motion for

Summary Judgment states in pertinent part: Burlington Northern did nothing more than borrow the language of the D.C. Circuit’s standard. The Court did not purport to interpret § 2000e-16, nor did it express an opinion as to whether Ro-chon’s discussion of retaliation claims against the Government was correct. Indeed, any discussion of § 2000e-16 would have been dicta, as Burlington Northern was a private sector case and thus did not implicate § 2000e-16. (# 58 at 9-10 n. 8). The undersigned agrees with the court in Rochon that a limitation of retaliation claims under § 2000e-16(

a) to those claims involving “personnel actions” would be contrary to public policy, and would contravene the intent of Congress when it enacted that section. The undersigned also finds it significant that, in Burlington Northern, the Supreme Court cited to Ro-chon and made no distinction between it and the private sector retaliation cases to which the Court also referred. Likewise, in Baqir, the Fourth Circuit did not distinguish between retaliation claims brought under § 2000e-16 and § 2000e-3.

Accordingly, the undersigned proposes that the presiding District Judge FIND that the Supreme Court’s ruling in Burlington Northern is applicable in the context of federal sector employment.

Thus, the undersigned further proposes that the presiding District Judge FIND that in order to state a prima, facie claim of retaliation under Title VII, Plaintiff need not show that the alleged retaliatory conduct by the Defendant involved or affected a “personnel action.” As noted by the presiding District Judge in his prior Memorandum Opinion and Order, “[a]n employer’s purposeful allowance of the languishing, over an unusually extended period of time, of an employee’s grievance may likely be an exploitation of the exhaustion requirement that effectively renders the employee’s administrative remedy unavailable, thereby producing significant injury or harm.” (#34 at 9).

Therefore, the undersigned further proposes that the presiding District Judge FIND that the delay in processing Plaintiffs grievances constitutes a materially adverse action cognizable under § 2000e-16(a), and that the United States has waived its sovereign immunity on such claims. b.

Delay in grievance process is an adverse employment action In the alternative, if the presiding District Judge should find that Burlington Northern is not applicable in the federal sector, then, as argued by Defendant, Plaintiff is required to show that Defendant took an “adverse employment action,” which is one that “adversely affected a term, condition or benefit of employment.” Von Gunten, supra, 243 F.3d at 867. Defendant asserts that an “adverse employment action” requires “at a minimum, serious employment consequences and must be material.” (#58 at 10).

Defendant cites the Fourth Circuit’s decision in Boone v. Goldin, 178 F.3d 253, 255 (4th Cir.1999), in which the court emphasized “that Congress did not intend Title VII to provide redress for trivial discomforts endemic to employment.” Defendant further asserts that “Congress stressed that a Title VII claim is valid only if a plaintiff can show that his employer’s action had a significant detrimental effect on him.” (Id. at 10-11).

Defendant argues that Plaintiff “has failed to offer evidence that this delay [in the processing of the grievances] caused an adverse effect in the terms, conditions or benefits of his employment.” (Id.) Defendant further states: While Plaintiff certainly would have preferred that his grievances be handled promptly, he has failed to demonstrate that the delay caused a significant detrimental effect on him.

Defendant’s failure to process the grievances in accordance with agency time lines cannot be construed as anything more than a “trivial discomfort[ ] endemic to employment.” (Id.) In his Response, Plaintiff asserts that “[t]he IRS agency grievance system “applies to any matter of concern or dissatisfaction relating to the employment of an employee(

s) which is subject to the control of agency management.” (# 59 at 20)(citing IRM Grievance Handbook, # 68 at 112, ¶ 117(1)). Plaintiff further asserts that the grievance process is “a benefit of employment that allows employees to redress perceived wrong doing.” (Id.) Plaintiff further asserts that, in delaying the resolution of Plaintiffs grievances

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