Hanson-Hodge v. Kijakazi

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Paula HANSON-HODGE, Plaintiff, v. Kilolo KIJAKAZI, Commissioner, Social Security Administration, Defendant.

CIVIL No. 22-2818-BAH

United States District Court, D. Maryland

December 1, 2023

MEMORANDUM OPINION

BRENDAN A. HURSON, UNITED STATES DISTRICT JUDGE

Plaintiff Paula Hanson-Hodge (“Plaintiff”), filed suit against Defendant, Kilolo Kijakazi, Acting Commissioner of the Social Security Administration (“Defendant”) alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. This case arises out of an employment relationship between Plaintiff and Defendant, who is sued in her official capacity as the Acting Commissioner of the Social Security Administration (“SSA”). Before the Court is Defendant's motion to dismiss or, in the alternative, for summary judgment. ECF 20 (“Defendant's Motion”). Defendant's Motion also contains a memorandum of law and exhibits.^[1]Plaintiff, proceeding pro se includes numerous exhibits in her original complaint and in opposition to Defendant's Motion. ECF 1-2; ECF 24-2. The Court has reviewed all relevant filings, including Plaintiff's response in opposition to Defendant's Motion, ECF 22, and Plaintiff's supplement in opposition to Defendant's Motion, ECF 24, and finds that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2023). For the reasons stated below, Defendant's Motion is GRANTED.

I. BACKGROUND

The following facts are undisputed for the purposes of Defendant's Motion. ECF 20-1, at 5-16; Fed.R.Civ.P. 56(c)(1)(B). On October 31, 2022, Plaintiff filed the present action alleging that while she was employed as a Senior Paralegal with the SSA, her supervisors either discriminated against her as an African American woman or retaliated against her for filing complaints with the Equal Employment Opportunity Commission (“EEO” or “EEOC”). ECF 1 (complaint), at 1-2, 6-7. Additionally, Plaintiff alleges that retaliatory harassment created a hostile work environment that violated Title VII. Id. at 2. Plaintiff's primary grievance is her placement on various performance improvement plans, which led to her eventual termination. Id. at 9.

A. Employee Evaluations and Improvement Plans

At all times relevant to Defendant's Motion, the SSA used the Performance Assessment and Communication System (“PACS”) to evaluate employee performance. See ECF 20-1, at 6; ECF 20-8 (PACS Policy Manual); ECF 20-9 (2012 PACS Performance Plan) (documenting initial discussion under PACS plan); ECF 20-12 (2012 OPS Plan), at 2-8; ECF 20-19 (Notice of Proposed Removal). This case concerns the SSA's use of the PACS, and thus, some background information on the PACS is helpful before addressing Defendant's Motion.^[2] The PACS uses “a three-tier rating system for ratings on individual performance elements and for the summary appraisal rating.” ECF 20-8, at 3. The three tiers include: “Level 5 (Outstanding Contribution), Level 3 (Successful Contribution) and Level 1 (Not Successful).” Id. at 4. Supervisors conduct annual appraisals of employee performance and consider numerous factors including numeric data. Id. at 15. Employees receive ratings on individual elements of their work performance and a summary appraisal rating. Id. A Paralegal Specialist is appraised on four elements: (1) interpersonal skills; (2) participation; (3) demonstration of job knowledge; and (4) ability to achieve business results. See ECF 20-9, at 2. In addition to receiving one of the three-tiered ratings on each element, an employee receives a summary appraisal. ECF 20-8, at 4. An employee's summary appraisal is never higher than the lowest element appraisal rating. Id. at 15-16. Thus, an employee with a Level 1 (Not Successful) rating “on any one element will be rated at the Not Successful (Level 1) Summary Level.” Id. at 16.

If a supervisor assesses an employee with “marginal and failing performance,” the PACS outlines a two-step process to facilitate improvement. Id. at 16. Step one includes enrolling the employee on a Performance Assistance (“PA”)^[3] plan. Id. Step two includes enrolling the employee on an Opportunity to Perform Successfully (“OPS”) plan. Id. at 17.

When a supervisor identifies an employee's performance as marginal or failing, “the supervisor must meet with the employee.” Id. at 16. In this initial discussion, the supervisor explains “the performance assistance process and give[s] specific examples of the performance problem.” Id. The supervisor is required to “explain the expectations for improving performance to the Successful Contribution Level including the elements and performance standards involved, and the employee's responsibilities.” Id. In this discussion, the supervisor will also offer support to the employee such as “workload assistance, training, mentoring, and other appropriate support.” Id. After the initial discussion, the employee “is allowed a 30 day calendar day period to successfully improve his/her performance.” Id. The supervisor must develop a written PA plan that includes the “element(s) and expectation(s) in which the employee's performance is failing” and notification that the next step will be an OPS plan. Id. at 17. During the period of the PA plan, the employee is “considered to be performing at the Successful Contribution Level (Level 3).” Id. at 17. If at the end of a 30-calendar day period the employee meets performance standards, the employee is taken off the PA plan. Id. at 16-17.

However, “if the employee's performance does not improve and the employee does not successfully complete the PA plan, the supervisor must initiate the next step in the Performance Assistance process”: an OPS plan. Id. at 17 (emphasis added). To do so, the supervisor “must meet with the employee and provide a written plan” that outlines critical elements for which performance is unacceptable, notify the employee that the employee is “not in good standing and any [Within Grade Increases] or career ladder promotion will be withheld for the duration of the plan,” provide a “summary of assistance already provided, along with the result,” provide a statement of the supervisor's plan to provide additional assistance, and notify the employee that “unless the employee's performance in the critical element(s) improves to and is sustained at an acceptable level, the employee may be reassigned, reduced in grade or removed from Federal service.” Id. The OPS lasts “for a period of 120 calendar days,” unless extended.^[4] Id. at 18. “Employees are considered to be performing at the Not Successful Level (Level 1) while under an OPS plan.” Id. At the conclusion of the OPS period, a supervisor must initiate a “performancebased action, if, despite the additional assistance provided in accordance with the OPS plan, the employee's performance has not improved to the Successful Contribution Level by the end of the OPS plan.” Id.

B. The 70% Productivity Standard

As noted above, one of four elements that supervisors use to evaluate employee performance is “Achieves Business Results.” ECF 20-8 (PACS Policy Manual), at 7; ECF 20-9 (2012 PACS Performance Plan), at 2. This element evaluates the extent to which the employee “produces a fair share of work according to supervisory expectations.” ECF 20-8, at 7; ECF 20-9 at 2. Supervisors within the Office of Appellate Operations (“OAO”) determined a “fair share” of work for a Paralegal Specialist equals a productivity level between 70% to 130% based on “the weighted actions and productivity computation method^[5] attached to [a] performance plan.”^[6] ECF 20-9 (2012 PACS Performance Plan); ECF 20-10 (Scale of Weighted Actions for OAO Analysts), at 2.

C. Plaintiff's Employment History as a Paralegal Specialist

In October 2003, Plaintiff was employed by the SSA as a Paralegal Specialist. ECF 20-4 (Affidavit of Paula Hanson-Hodge), at 1. As a “senior Paralegal Specialist (Appellate and Civil Actions Analyst) and expert case analyst in the Office of Appellate Operations,” Plaintiff's primary job responsibilities included reviewing disability decisions that had been appealed to the Agency's Appeals Council and preparing written recommendations and final action documents for SSA Administrative Law Judges (“ALJs”). ECF 20-5 (Social Security Administration Position Description), at 3-4.

In July 2005, Plaintiff was physically assaulted by another employee in the Medicare Subsidy Appeals unit. See Hanson-Hodge v. Colvin, No. 1:14-cv-744, 2016 WL 595293, at *2 (E.D. Va. Feb. 11, 2016) (“Hanson-Hodge I”), aff'd, 653 Fed.Appx. 176 (4th Cir. 2016) (mem.). Plaintiff filed an EEO complaint that eventually settled in 2008. Id. Plaintiff remained employed at SSA, where she filed additional EEO complaints, including the one at the heart of this case.

Beginning in February 2009, Plaintiff's first line supervisor, Evelyn Gregory (“Gregory”) placed Plaintiff on numerous PA plans based upon her failure to meet the 70% productivity standard. Id. On October 21, 2010, Gregory placed Plaintiff on an OPS plan based upon Plaintiff's continued failure to meet the productivity standard during a May 2010 PA plan. ECF 20-13 (2010 OPS Plan), at 2-6. Gregory left her position in December 2010 and Plaintiff's following two supervisors never removed Plaintiff from the OPS. Hanson-Hodge I, 2016 WL 595293, at *3. Thus, Plaintiff remained on the 2010 OPS for approximately two years until Roxie Rasey^[7](“Rasey”) assumed the supervisor position. Id.; ECF 20-16 (October 2012 Recission Letter), at 2.

On October 1, 2012, Rasey issued a memorandum officially ending the two-year OPS plan.^[8] ECF 20-16, at 2. On December 12, 2012 Rasey and Plaintiff had a meeting in which Rasey explained Plaintiff's productivity level again did not meet the minimum 70% requirement and if it did not improve, a...