Eller v. Colvin

LARA ELLER, Plaintiff, v. CAROLYN W. COLVIN, Defendant.

CASE NO. CV414-202

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION

March 30, 2016

ORDER

Before the Court are Defendant's Motion to Strike Certain Paragraphs of Plaintiff's Amended Complaint (Doc. 40), Defendant's Second Motion for Partial Dismissal (Doc. 41), Defendant's Motion for Summary Judgment (Doc. 45), Plaintiff's Motion for Oral Argument (Doc. 58), Defendant's Motion to Strike Plaintiff's Statement of Facts (Doc. 66), and Plaintiff's Motion to Strike Defendant's Response to Plaintiff's Statement of Facts (Doc. 73). As an initial matter, Defendant has withdrawn (Doc. 71) its Motion to Strike (Doc. 66) which is accordingly, DISMISSED AS MOOT. Furthermore, the Court finds no reason to strike Defendant's response to Plaintiff's Statement of Facts. Defendant has otherwise complied with all filing deadlines and no local rules prohibit such a response. As a result, Plaintiff's Motion to Strike (Doc. 73) is DENIED.

For the following reasons, Defendant's Motion for Summary Judgment (Doc. 45) is GRANTED IN PART and DENIED IN PART; and Defendant's Motion to Strike Certain Paragraphs of Amended Complaint (Doc. 40), Motion for Partial Dismissal (Doc. 41), and Plaintiff's Motion for Oral Argument (Doc. 58) are DISMISSED AS MOOT. This case will proceed to trial.

BACKGROUND

This case arises from a complaint of discriminatory promotion at the Savannah Hearing Office of the Social Security Administration's ("SSA") Office of Disability Adjudication and Review ("ODAR"). Plaintiff, a white female, began working at ODAR in March 2008 as a Senior Case Technician ("SCT"). (Doc. 38 at 5.) Prior to working at ODAR, Plaintiff was a disability adjudicator for the Georgia Disability Determination Services ("DDS"). (Doc. 57 at 17.) Plaintiff's duties as a SCT included supporting ODAR's Administrative Law Judges ("ALJs") and some scheduling responsibilities. (Doc. 55 at 3.) Plaintiff was also known for her knowledge and experience in SSA adjudication, and ALJs often called upon her to discuss complex issues. (Doc. 39 at 7.) In addition to her duties as a SCT, Plaintiff became a National Legal Assistant Instructor and National Legal Assistant Cadre, which involved traveling for training purposes. (Id.) Generally, Plaintiff's yearly performance appraisals were positive with Plaintiff achieving an average score of four out of five on the ODAR rating system. (Doc. 45, Attach. 5 at 5.)

When she was hired by ODAR, Plaintiff's supervisor—Hearing Office Director Brian Boyd—discussed with her the possibility of becoming a Paralegal Specialist as a promotion from SCT. (Doc. 55, Attach. 2 at 44-45.) The role of Paralegal Specialist was different from the role of a SCT. The role required Plaintiff to "write decisions that are ultimately signed and issued by the ALJ's." (Doc. 55 at 3.)

In March 2013, SSA announced that there was an opening for a Paralegal Specialist in Plaintiff's office. Jamie Stewart—another Group Supervisor—told Plaintiff that Ms. Stewart, Mr. Boyd and Judge Petersen—the Hearing Office Chief Administrative Law Judge and senior supervisor for Plaintiff—intended for Plaintiff to receive the position. (Id. at 6.) Plaintiff applied for the position expecting a positive outcome as a result of these conversations. In addition to completing the required application, Plaintiff also submitted several letters of support from ALJ's for whom she worked. (Id. at 23.)

The selection for the Paralegal Specialist position was designed to be competitive and non-conscious of race. (Doc. 55, Attach. 2 at 105.) Judge Petersen was to make the final promotion decision. Plaintiff, along with several other individuals from the Savannah office, including an African- American named Kareen Alvin, was placed on the Merit Promotion Certificate of Eligibles from which Judge Petersen was entitled to select the candidate for promotion. (Doc. 45, Attach. 13 at 27-8.) Judge Petersen did not conduct interviews for the position, but rather reviewed the applications and considered the candidates' work experience, qualifications, language arts skills, ability to relate to others, ability to learn the position, and ability to become a productive writer with a short learning curve. (Doc. 45, Attach. 9 at 3-5; Doc. 55 at 8.) He also spoke with Mr. Boyd, who was the second-line supervisor to both Plaintiff and Ms. Alvin.¹ (Doc. 45, Attach. 9 at 2.)

Ultimately, Judge Petersen selected Ms. Alvin for the position. After Plaintiff did not get the promotion and received unsatisfactory answers about why she was not promoted, she filed an EEO ("Equal Employment Opportunity") complaint² on September 18, 2013. (Doc. 57 at 30.) In her complaint, Plaintiff alleged race discrimination due to the fact that she was not promoted and claimed that she suffered from retaliation for her complaint. (Doc. 45 at 1.) Over the next few months, Plaintiff and Defendant engaged in substantial discovery as to why Ms. Alvin was selected rather than Plaintiff.

When first asked why he selected Ms. Alvin, Judge Peterson stated that the selection was made based on the belief that Ms. Alvin had better communication and language skills, would be a swift learner based on her performance, and on a consensus of office management. (Doc. 55, Attach. 1 at 5.) Judge Petersen later filed an affidavit where he stated that Ms. Alvin was more qualified because she had greater "work experience, language arts skills, ability to interact with others, . . . [was more] productiv[e] as a SCT and demonstrated [an] ability to learn a new position within a short learning curve." (Id. at 13.) Furthermore, Judge Petersen reasoned that Ms. Alvin's master's degree further bolstered her qualification for the position by indicating that she had superior analytical and writing skills. (Doc. 45, Attach. 8 at 4.) Mr. Sherman noted that Plaintiff did not outperform other workers although Ms. Stewart believed Plaintiff to be generally productive. (Doc. 45, Attach. 2 at 3; Doc. 45, Attach. 20 at 3.)

In a later deposition, Judge Petersen added an additional reason for his decision. He stated that, Plaintiff was often absent and had significant leave balances (Doc. 57 at 15.) Judge Petersen had observed that Plaintiff was often out of the office³ and that he was concerned that her co-workers resented her absence as they often covered her work when she was gone. (Doc. 45, Attach. 8 at 3.) Likewise, Mr. Boyd noted that there were "attendance/leave issues". (Doc. 45, Attach. 18 at 9.) Judge Petersen also expressed concern that Plaintiff assumed unnecessary responsibilities and that this negatively affected her job performance. (Doc. 45, Attach. 8 at 3.) Acknowledging that Plaintiff had significant training experience due to her position as a national cadre trainer, Judge Petersen discounted this experience because he did not believe that it would assist Plaintiff in performing her duties as a Paralegal Specialist. (Id. at 4.) Judge Petersen also stated that he was unaware of Plaintiff's position as a decision writer for DDS and, as a result, this did not affect the promotion decision.⁴ (Doc. 45, Attach. 19 at 8.)

Plaintiff disagrees with Judge Petersen's characterization of the promotion decision. She argues that she was well qualified for the position citing to her receipt of performance based awards in 2009, 2010, 2011 and 2012 (Doc. 55, Attach. 1 at 55) along with her excellent drafting skills (Doc. 55 at 20). She notes that Mr. Boyd considered her "the strongest SCT" in the office (Doc. 55, Attach. 2 at 60) and that her knowledge and expertise were regularly relied on both by other staff and the ALJs for whom she worked. (Id. at 93.)

Plaintiff provides another reason for Ms. Alvin's promotion. Plaintiff argues that Judge Petersen selected an African-American of lesser qualifications for the Paralegal Specialist position because of racial tension in the office. (Doc. 57 at 25-28.) Plaintiff claims that Ms. Alvin's selection was an attempt to smooth the waters after racial tension in the office was exacerbated in May 2013 when a white individual replaced an African-American individual in a supervisory position. (Id. at 26.)

While Judge Petersen testified that he did not feel there was any racial tension in the office (Doc. 45, Attach. 19 at 11), this position was not shared by all. For example, Mr. Boyd noticed that there were morale issues, although he did not attribute them to racial tension. (Doc. 45, Attach. 18 at 6.) Mr. Boyd also acknowledged that he may have told Plaintiff that other employees resented her because of her race and DDS experience. (Id. at 21.) Marilynn Ellison, who worked at the Savannah office from 1993 to 2012, was aware of "a lot of incidents that involved racial friction," (Doc. 55, Attach. 3 at 24, 25, 29, 33) and that Plaintiff was referred to as the "white bitch" by certain coworkers (id. at 34-36). Ms. Stewart also admitted that she expected backlash following any promotion and noted that some Senior Case Technicians "don't really like" Plaintiff. (Id. at 120.) More importantly, however, both Mr. Boyd and another ALJ, Judge Gold, acknowledged that race was occasionally a factor in both employment and discipline decisions. (Doc. 55, Attach. 2 at 98; Doc. 55, Attach. 3 at 55.)

After Plaintiff had filed her EEO complaint but before she had filed this case, Plaintiff learned in September 2013 that she had been awarded a Commissioner's Team Citation in recognition of her work as a national cadre trainer. (Doc. 45, Attach. 5 at 3.) Plaintiff complains that she did not receive any formal recognition for this award. (Doc. 57 at 29.) She argues that recognition for her award was discussed in a staff meeting, but the idea was rejected because of her complaint.⁵ (Doc. 55, Attach. 2 at 63.) Plaintiff notes her office had recognized two other individuals for awards similar to Plaintiff's—once when an employee received the...