Kearse v. Berryhill

JEHOVAH KEARSE, Plaintiff, v. NANCY A. BERRYHILL, Defendant.

Civil Action No. RDB-17-3028

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

December 14, 2018

MEMORANDUM OPINION

Plaintiff Jehovah Kearse ("Plaintiff" or "Kearse") brings this action against Nancy A. Berryhill, in her official capacity as Acting Commissioner of the United States Social Security Administration ("Defendant" or the "Agency"), alleging that his supervisor, an African-American female, discriminated against him on the basis of his race and gender and retaliated against him by terminating his employment after his one-year probationary period, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (Am. Compl., ECF No. 9.) Currently pending before this Court is the Defendant's Motion to Dismiss or, in the alternative, Motion for Summary Judgment (ECF No. 10) and the Plaintiff's Motion to Defer Ruling on Defendant's Motion for Summary Judgment Pending Discovery (ECF No. 16).¹ The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. Dec. 1, 2018).

As explained below, there are no genuine issues of material fact based upon the record before this Court, and no reasonable basis for concluding that the discovery Kearse requests would reveal a triable issue of fact. Therefore, the Defendant's Motion, treated as a Motion for Summary Judgment, is GRANTED (ECF No. 10) and Plaintiff's Motion to Defer Ruling (ECF No. 16) is DENIED.

BACKGROUND

One July 7, 2012, Plaintiff Jehovah Kearse ("Plaintiff" or "Kearse") an African-American male, began working for the United States Social Security Administration (the "Agency") on a one-year probationary term as a GS-14 Division Director for the Division of Policy and Purchase Card Administration in the Office of Acquisition and Grants ("Division Director"). (Record of Investigation ("ROI"), ECF No. 10-2, Kearse Aff., Ex. 6 at 2-3.)² As a Division Director, Kearse was responsible for reviewing and preparing acquisition policy, conducting training, and supervising policy analysts, and he asserts that the workload was extremely heavy. (Id. at 4.) His immediate supervisor was the GS-15 Director of Acquisition and Grants, Allyson Stokes, an African-American female. (Id. at 2, 4.) In addition to Plaintiff, Stokes supervised seventeen other employees in various positions, including procurement analysts who reported to Kearse. (Ex. 5B.) Among the eighteen employees were eight Caucasian, eight African-American, and two Asian employees, and seven male and eleven female employees. (Id.)

In February of 2013, Kearse and Stokes met for Kearse's mid-year performancereview. (Ex. 14e.) While Kearse alleges that Stokes appeared pleased with his performance during his first six months (Am. Compl., ECF No. 9 at ¶ 20), his written assessment identified several areas in which Kearse needed improvement or "more emphasis." (Ex. 14e.) Specifically, the mid-year performance review stated:

Interpersonal Skills: ...He communicates very well orally and in writing. His ideas and thoughts are conveyed clearly and concisely. [Mr. Kearse] tailors message appropriately for the intended audience, and ensures information is communicated effectively. Improvement is needed in the area of returning emails promptly. At the least, emails should be acknowledged within 24 hours after receipt, and include an estimated time of providing the response to the inquiry. Improvement is also needed in the area of keeping staff apprised when time will be spent away from the office. . . .

Participation: ...[Mr. Kearse] typically provides reports, controlled correspondence, and documents within reasonable timeframes. More emphasis is needed on managing the workload so that controls and other assignments are completed timely, and documents are reviewed timely.... He needs to ensure monthly acquisition personnel training and quarterly COTR training sessions are held or inform management if these sessions will not be held on a monthly or quarterly basis as scheduled. . . .

Demonstrates Job Knowledge: ...[Mr. Kearse] stays abreast of regulation and policy changes. More emphasis is needed in ensuring analysts keep policies and procedures up to date with regulatory changes, and as requested by management. ...[Mr. Kearse] writes extremely well, and articulates logically and clearly while communicating orally. His email correspondence is clear, concise, and well written. More emphasis is needed on ensuring the work products of others are in an active voice, clear, and concise.

Achieves Business Results: ...[Mr. Kearse] strives to handle day-to-day work challenges effectively. More emphasis is needed on completing a majority of the work assignments timely and as scheduled, and using a balanced approach to complete assignments, reviews, and read and respond to emails. ...

Demonstrates Leadership: ...[Mr. Kearse] allows his employees to work independently, and adjusts resources as necessary. He is a good role model and demonstrates good ethics. He encourages the staff to work effectively and efficiently. More emphasis is needed on timely reviewing work products of the analysts so as not to delay processing. [Mr. Kearse] is very supportive of hisstaff, and interacts well with them, thus creating and maintaining a positive work environment. ...

Manages Performance: [Mr. Kearse] needs to conduct performance assessments and performance discussions timely per the schedule established by the agency. He establishes and communicates appropriate performance expectation, provides development for his staff, and makes training recommendations consistent with the needs of the staff.

(Id.)

Kearse asserts that due to the nature of the Division Director position, he frequently worked over forty hours per week. (ECF No. 9 at ¶ 22.) Pursuant to the Agency's overtime policy, employees request "credit hours" for overtime work. (Kearse Aff., Ex. 6 at 7.) Accordingly, Stokes testified that she required all of her employees to submit oral or written requests to work credit hours indicating what tasks they intended to complete. (Stokes Aff., Ex. 7 at 5.)

At some unspecified time during his one-year probationary term, Kearse alleges that Stokes required him, but not other Caucasian females, to request credit hours in writing and also provide a written account of his overtime activity afterwards. (Kearse Aff., Ex. 6 at 7-8.) Stokes testified that she only required Kearse, and none of the other employees under her supervision,³ to submit reports for work completed because Kearse began requesting a considerable amount of credit hours early in his tenure, and she needed to know what he was completing during that time. (Stokes Aff., Ex. 7 at 5.)

It is undisputed that although Stokes required Kearse to submit written requests and follow up reports, Stokes never denied any of Kearse's requests for credit hours. BothKearse and Stokes testified, however, that once Stokes imposed this requirement, Kearse began requesting credit hours less frequently. (Stokes Aff., Ex. 7 at 56; EEO Complaint, Ex. 1 at 4.) Kearse asserts that he discussed with Stokes "the apparent disparity in treatment" between him and other Caucasian female employees. (Kearse Aff., Ex. 6 at 3.) He asserts that thereafter, "Stokes' attitude towards [him] immediately changed" and "she became quite hostile." (Id.)

On July 8, 2013, Stokes informed Kearse that his employment would not continue past his one-year probationary period. (Kearse Aff., Ex. 6 at 6.) His Letter of Termination indicated that despite his mid-year evaluation, Stokes had continued to observe Kearse perform deficiently in managing his workload, completing his work in a timely and correct manner, and managing his staff's deadlines. (Ex. 14f.) Seth Binstok, Kearse's second line supervisor and a Caucasian male, testified that although Stokes did not need his approval to terminate Kearse's employment, he did not believe that Kearse had sufficiently improved from his mid-year performance evaluation and agreed with her decision. (Binstok Aff., Ex. 8 at 4.)

On September 6, 2013, Kearse filed a Charge of Discrimination with the Equal Employment Opportunity ("EEO") program, asserting that he was terminated on the basis of his race and gender and because he had complained to Stokes about disparate treatment with respect to credit hours. (EEO Complaint, Ex. A.) The Social Security Administration investigated the complaint from December 30, 2013 through February 28, 2014, and compiled a Report of Investigation ("ROI") on April 7, 2014. (Id.) Among the information collected in the one-hundred and twenty page report was an affidavit and rebuttal statementby the Plaintiff Jehovah Kearse; an affidavit by his supervisor Allyson Stokes; an affidavit by his second-level supervisor Seth Binstok; affidavits or letters by five Procurement Analysts who reported to Kearse; and documents concerning Plaintiff's position. (Id.)

On July 10, 2014, Kearse requested a hearing before the U.S. Equal Employment Opportunity Commission ("EEOC"). (Final Agency Determination, ECF No. 10-3 at 2.) When a hearing had not occurred by June of 2017, Kearse withdrew his request for a hearing and sought to remand his complaint back to the Agency. (Id.) Subsequently, on July 18, 2017, the Agency issued a Final Agency Decision, finding that Kearse's termination was not discriminatory on the basis of his race or gender or retaliatory for engaging in protected activity. (Id.) Specifically, the SSA determined that Kearse failed to establish a prima facie case for discrimination or retaliation and, even if he had, the Agency had a legitimate reason for terminating the Plaintiff's employment which he did not show was pretext for discrimination. (Id.)

On October 16, 2017, Kearse filed a Complaint in this Court, alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (Compl., ECF No....