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Wilson v. Sinners

United States District Court, D. Delaware

April 10, 2017

TONY A. WILSON, Plaintiff,
GREGORY P. SINNERS, et al., Defendants.

          Tony A. Wilson, Mlford, Delaware, Pro Se Plaintiff.




         Plaintiff Tony A. Wilson ("Plaintiff), who proceeds pro se and has been granted leave to proceed in forma pauperis, commenced this action on October 24, 2016. (D.I. 1) He amended on December 14, 2016, and the Amended Complaint is the operative pleading. (D.I. 15) The Court has jurisdiction pursuant to 28 U.S.C. § 1331. The Court proceeds to review and screen the Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2). Presently before the Court are numerous motions filed by Plaintiff, including motions to amend, motions to compel, a motion for default, a motion for default judgment, and a motion for a preliminary injunction. (D.I. 13, 16, 18, 19, 20, 21, 22, 23, 29, 30, 31, 33)


         Plaintiff, who is black and an Internal Revenue Service ("IRS") employee, alleges employment discrimination, harassment, retaliation, and a hostile work environment. The Amended Complaint consists of 729 paragraph, names 24 Defendants, and contains 30 Counts. Throughout "Section IV Common Allegations, " Plaintiff alleges that all adverse employment actions taken against him are the result of his color, race, and in retaliation for filing grievances. He alleges violations of: Title VII, 42 U.S.C. § 2000e(a)(1)(2); the parties' union contract(s); his right to equal protection under the Fourteenth Amendment to the United States Constitution; as well as regulatory, statutory, Internal Revenue Service, Internal Revenue Manual 6.752.2.9(2)(a) (b) provisions; and also under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(1); 42 U.S.C. § 1983; 42 U.S.C. § 1981; the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675(a), 2679(b)(1); and the Family Medical Leave Act ("FMLA"). (D.I. 15 at ¶¶ 1-20, 88)

         In May 2011, Plaintiff was questioned about attempting to access his tax files. (Id. at ¶ 74) The matter was closed due to Plaintiff committing the UNAX (i.e., unauthorized access, attempted access or inspection of taxpayer records) before he had UNAX training. (Id.) Plaintiff informed Defendant Gregory Sinners ("Sinners"), his immediate supervisor, that he had attempted to access his tax file and that he had also accessed his wife's tax file. (Id. at ¶ 75)

         In 2013, Plaintiff had a contact recording with an individual with whom he had worked approximately 20 years ago. (Id. at ¶ 77) Sinners listened to the contact recording and submitted the information to TIGTA (i.e., U.S. Treasury Inspector General for Tax Administration) for investigation. (Id.) In March 2014, Plaintiff refused to participate in a criminal investigation against him that was conducted by Defendant Department of Treasury agent Dennis W. Martel ("Martel"). (Id. at ¶ 79) In March 2014, Sinners submitted to TIGTA, for investigation, information that Plaintiff had accessed his wife's tax files within three days of employment. (Id. at ¶ 76) Plaintiff alleges that he was subject to harassment based upon his race and retaliation after he refused to testify during a March 2014 TIGTA and, in November 2014, when he refused to participate in his 2012 and 2013 audit. (Id. at ¶ 73) Plaintiff received his mid-year evaluation on March 5, 2014. (Id. at¶lOO.c.)

         Plaintiff alleges that Defendants Mary Komenda ("Komenda"), an IRS employee, and IRS territory manager Millicent E. Anstead ("Anstead") violated his right to due process when they failed to provide him with a notice of the step two response issued to the NTEU (i.e., National Treasury Employees Union) on March 23, 2014, concerning a grievance Plaintiff had submitted regarding his 2014 annual performance appraisal and the failure to investigate his charges of discrimination and retaliation. (Id. at ¶¶ 97, 97)

         In June 2014, Plaintiffs tax returns were; audited for the tax years 2012 and 2013. (Id. at ¶ 102) Plaintiff alleges that Martel directed an audit for Plaintiffs 2012 and 2013 tax years after Plaintiff refused to answer questions regarding Martel's allegations during the March 2014 interview. (Id. at ¶ 85) In August 2014, Sinners was informed that Plaintiff had amended his 2012 and 2013 tax returns, but Sinners and other Defendants directed that this information not be included in the 2012 and 2013 tax audits and the TIGTA investigation of the audits. (Id. at ¶¶ 103, 104)

         On September 29, 2014 and July 17, 2015, Plaintiff made complaints regarding the contact recording and the March 2014 investigation. (Id. at ¶¶ 98, 99) In October 2014, Sinners included information in Plaintiffs 2014 annual evaluation that Plaintiff claims was improper and intended to keep an ongoing TIGTA investigation for over 13 months. (Id. at ¶¶ 100a. through h) Plaintiff refused to sign the evaluation and alleges that Sinners set out to retaliate against Plaintiff over Plaintiffs tax and audit issues. (Id. at ¶¶ 105-11) On February 17, 2015 and July 17, 2015, Plaintiff submitted a grievance regarding Sinners not contacting Plaintiff about hazardous conditions with Anstead and Strauch ("Strauch"). (Id. at ¶ 126)

         On March 4, March 27, May 14, 2015, and July 17, 2015, Plaintiff requested updates on grievances he had submitted. (Id. at ¶¶ 127-29) Sinners closed the TIGTA investigation at the end of April 2015. (Id. at ¶ 92) Plaintiff alleges that Sinners denied him training and breached the 2012 National Agreement II entered into by the IRS and the NTEU. (Id. at ¶ 93) He alleges with regard to his 2014 annual performance appraisal grievance that he was denied his right to due process by Anstead and Komenda because they did not provide him notice that a step two response was issued to NTEU on March 20 or 23, 2015. (Id. at ¶ 134) On May 14, 2015 and July 17, 2015, Plaintiff requested an immediate transfer. (Id. at ¶¶ 130, 131)

         On June 9, 2015, Plaintiff submitted an application for hardship reassignment/relocation request to Sinners, describing the hardship as stress/hostile work environment due to harassment on the basis of race. (Id. at ¶ 280) At the same time, Plaintiff submitted his resume for the position of bankruptcy specialist and indicated that he was currently representing a petitioner pro bono. (Id. at ¶ 81) Plaintiff alleges that, from May 28, 2015 thru June 26, 2015, Sinners and Anstead denied his request for leave under the FMLA, and they refused to complete and process his workers' compensation forms. (Id. at ¶¶ 88, 89) Plaintiff alleges that on July 17, 2015, Sinners, knowing that Plaintiff received nontaxable child support payments, falsely stated that Plaintiff remained under investigation by TIGTA for under-reporting his income on his federal income tax returns. (Id. at ¶¶ 114, 115) Plaintiff, who is a licensed attorney in the State of Pennsylvania, alleges that in July 2015, Sinners caused Plaintiffs review by the Disciplinary Board of the Supreme Court of the State of Pennsylvania and caused a Pennsylvania Judicial Center to provide a certification of record regarding Plaintiffs character. (Id. at ¶¶ 116, 117)

         Plaintiff alleges that on August 10, 2015, Sinners and Anstead used the information to allege that Plaintiff conducted unauthorized business activities outside of his employment with the IRS. (Id. at ¶¶ 82, 112, 122, 124) Plaintiff alleges that he was representing a family member in bankruptcy court and that the child support income was nontaxable. (Id. at ¶¶ 120, 122) Plaintiff opted to participate in the investigation by written response only. (Id. at ¶ 83)

         Plaintiff describes several contacts with Sinners during September and October 2015 as harassing and designed to "get Plaintiff fed-up enough to quit." (Id. at ¶¶ 132, 133, 137-43) On September 24, 2015, Plaintiff filed a formal charge of discrimination with the EEOC. (Id. at ¶ 69) Plaintiff alleges that on October 2, 2015, Sinners and Anstead retaliated against him when they conducted a fictitious leave audit and placed Plaintiff in LWOP (i.e., leave without pay) status and denied him 24 hours of pay. (Id. at ¶ 135) Plaintiff alleges that on October 9, 2015, Sinners improperly reviewed Plaintiffs contact recording in retaliation for filing an EEOC charge of discrimination against Sinners. (Id. at ¶ 136) Plaintiff alleges that on October 12, 2015, Sinners, Anstead, and Susan M. Quackenbush ("Quackenbush"), an IRS agent, resubmitted a false audit report and charged Plaintiff with owing taxes for the tax years 2012 and 2013. (Id. at ¶¶ 118, 119)

         On October 19, 2015, Plaintiff was advised by Defendant Frontline Security Officer Kyle T. Furnas ("Furnas") that he had been instructed by Sinners to file a complaint against Plaintiff as a result of an incident that had occurred between Plaintiff and Sinners that same day. (Id. at ¶ 144) Plaintiff alleges that Sinners made false statements and filed a false report in retaliation for Plaintiffs previous complaints and EEOC charge of discrimination filed against Sinners. (Id. at ΒΆΒΆ 145, 146) Plaintiff alleges that Furnas and his supervisor, Defendant Robert L. ...

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