Gary N. AuBuchon, Plaintiff - Appellant
Timothy F. Geithner, in his capacity as Secretary of the Treasury, Defendant - Appellee
Submitted September 25, 2013.
Appeal from United States District Court for the Eastern District of Missouri - St. Louis.
For Gary N. AuBuchon, Plaintiff - Appellant: James P. Baker, BAKER & BAKER, Springfield, IL.
For Timothy F. Geithner, in his capacity as Secretary of the Treasury, Defendant - Appellee: Christina Bahr Moore, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Eastern District of Missouri, Saint Louis, MO.
Before WOLLMAN, BEAM, and SMITH, Circuit Judges.
SMITH, Circuit Judge.
Gary AuBuchon sued Timothy Geithner, in his capacity as the Secretary of the Treasury, for retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., based on incidents between him and the Internal Revenue Service (IRS), his former employer. The district court granted Geithner's motion for summary judgment. AuBuchon argues that the district court erred because a reasonable jury could determine that the IRS's failure to promote AuBuchon to senior international agent violated Title VII. AuBuchon avers that the IRS retaliated against him by, without justification, accusing AuBuchon of sexual harassment, accelerating his work deadlines, increasing his workload, and failing to provide adequate performance reviews. AuBuchon also contends that the IRS constructively discharged him through these actions. We affirm.
Gary AuBuchon, a Caucasian male, worked for the IRS from 1979 until retirement in December 2009. During the events giving rise to this suit, he was an international examiner. International examiners are assigned to a team that examines the tax returns of large taxpayers, and they address various international concerns that develop throughout the course of an audit or other examination. AuBuchon worked for the " Town and Country Group" in Missouri.
The IRS ties promotions from international examiner to senior international examiner to work that agents complete on individual cases. Cases that merit the review of a senior international agent are first assigned the position before an individual is designated to fill it. Thus, an employee seeking a promotion to senior international examiner must be assigned to a case that has also been assigned a senior-international-agent position. Thereafter, individuals may apply for that position for that particular case. Senior international agents are very experienced agents whose " primary responsibility is to work on the most complex cases that have been designated as a senior international examiner case."
In 2006, AuBuchon, in the " M" case, performed work comparable to that of a senior international agent because of that case's size and complexity and his supervisory
role in its handling. However, the " M" case had not been assigned a senior international ...