Penalver v. Soc. Sec. Admin.

JULIA V. PENALVER, Plaintiff, v. SOCIAL SECURITY ADMINISTRATION, Defendant.

19-cv-01878

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

January 2, 2020

MEMORANDUM & ORDER

ANN M. DONNELLY, United States District Judge:

On March 26, 2019, the pro se plaintiff filed a complaint against the Social Security Administration alleging that it retaliated against her for filing a 2013 complaint alleging discrimination. (ECF No. 1 at 10-14; ECF No. 16 at 3.)¹ On July 12, 2019, the defendant moved to dismiss the complaint (ECF No. 9), which the plaintiff opposed in a series of letters (ECF Nos. 14-16).² For the reasons discussed below, the plaintiff's complaint is dismissed.

BACKGROUND³

The plaintiff began working for the Social Security Administration in the Office of Hearings and Appeals in 1985. (ECF No. 1 at 8.) Over the next fifteen years, the plaintiff's managers promoted her several times and recognized the quality of her work with awards, bonuses, and positive performance reviews. (Id. at 9.) In 2001, the plaintiff's managers promoted her to a paralegal specialist, a position she held until 2008. (Id.) As a paralegal specialist, the plaintiff assisted Administrative Law Judges in reviewing records and drafting opinions. (Id.)

From 2008 to 2010, the plaintiff held a temporary supervisory role in which she managed decision writers, including paralegal specialists and attorneys. (Id.) Although the defendants commended the plaintiff's performance, they did not select her to be a permanent supervisor, and she resumed her job as a paralegal specialist. (Id. at 9-10.) On July 8, 2013, the plaintiff filed a Title VII complaint in this Court alleging that the Social Security Administration did not award her the permanent supervisor position in retaliation for her prior complaints to the EEOC and her cooperation with EEOC investigations. (ECF No. 16 at 3, Penalver v. United States of America, 13-CV-03774.)⁴

The plaintiff's supervisors started criticizing her work in February of 2014, during the settlement negotiations. (ECF No. 1 at 10.) Deborah Williams, the plaintiff's immediate supervisor, told her that her performance was suffering and that she would be placed on "100 percent quality review," which meant that supervisors would edit her work before it was given to the ALJs. (Id.) Ms. Williams told the plaintiff that her supervisor, Jamie Hanlon, mandated the quality review. (Id.) The parties settled the lawsuit in March of 2014.

In November of 2014, Ms. Hanlon assigned the plaintiff a new direct supervisor, Megan Wada. (Id. at 11.) Although they had worked together for less than two months, Ms. Wada gave the plaintiff a poor performance review in which she described the plaintiff as "combative." (Id.) The plaintiff was offended by the description, and asked Ms. Wada to remove it from the file, but Ms. Wada refused. (Id.) Six months later, in May of 2015, Ms. Wada placed the plaintiff on a performance assessment plan, which restricted her from working directly with ALJs and from working overtime for pay. (Id. at 12.) Ms. Wada also assigned the plaintiff a mentor—which the plaintiff had requested in the past—but required that all communications between the plaintiff and her mentor pass through Ms. Wada. (Id.)

Although the performance assessment plan ended in 2016, the plaintiff's work continued to undergo quality review and she was still unable to work overtime for pay. (Id.) On occasion, the plaintiff bypassed the quality review protocol and gave her drafts directly to the ALJs, who finalized them with minimal changes. (Id. at 12-13.) But for the most part, the plaintiff complied with the quality review program, which resulted in a backlog of her assignments because of the multiple rounds of edits. (Id.) The ALJs held the plaintiff responsible for the backlog, which caused her stress and frustration. (Id. at 13.) The plaintiff's supervisors did notallow her time during the workday to use the Employee Assistance Program, and they continued to restrict her communications with her mentor and the ALJs. (Id. at 12, 13.) At one point in 2016, Ms. Wada wrote a note to another supervisor in which she described the plaintiff as "learning disabled," a description that upset the plaintiff greatly. (Id. at 13.) At this point, the plaintiff was continuing her EAP counseling outside of work to handle her emotional stress. (Id. at 12, 13.) The plaintiff now sees a private therapist and psychiatrist. (ECF No. 16 at 3.)

In 2016, the plaintiff filed a complaint with the Equal Employment Opportunity Commission, alleging that the defendants were harassing her in retaliation for her 2013 lawsuit. (Id. at 2.) In January of 2017, while the complaint was pending, the plaintiff was terminated from her job. (ECF No. 1 at 14.) The next month, the plaintiff, through her union, requested arbitration pursuant to the agency's negotiated grievance system to challenge her termination as retaliation for her 2013 lawsuit. (ECF No. 16 at 6-7; see also ECF No. 10 at 16, 18-48.)⁵

Around the same time, the plaintiff asked her lawyer to file a complaint in federal court alleging that the defendants harassed her at work, but directed him not to include any facts or claims relating to her termination, because "the union will be handling the termination." (ECF No. 16 at 7.) The plaintiff's counsel filed her complaint on March 10, 2017, before the Honorable Carol Bagley Amon, captioned Penalver v. Social Security Administration, 17-CV-01366. (ECF No. 11, Ex. 1.) The complaint alleged that agency managers harassed the plaintiff because of her age and in retaliation for her 2013 lawsuit. (Id. ¶¶ 13-25.)

In May of 2018, the arbitrator denied the plaintiff's wrongful termination challenge, finding that the agency did not retaliate against her for filing the 2013 complaint and did not harass her. (ECF No. 10 at 46-47 ("I believe that the agency did not retaliate because theGrievant filed a complaint with the EEOC. There were procedures in place, before the claim was filed, to help the Grievant perform in a timely manner. It is also my belief that the Grievant misinterpreted those procedures put in place, by the Agency, to be harassment.")) On August 30, 2018, the plaintiff voluntarily dismissed her complaint before Judge Amon. (ECF No. 11 at 21.) On March 12, 2019, the plaintiff, no longer represented by an attorney, moved for reconsideration of her voluntary dismissal before Judge Amon, claiming that her attorney misled her into signing it. (Id. at 23-24.) The Court denied her request. (Id. at 28-29.)

In the meantime, the plaintiff's pre-termination complaint alleging retaliation wound its way through the EEOC. According to the plaintiff, she received a Right-to-Sue letter in November of 2018, and filed this complaint—alleging that her managers harassed her for filing the 2013 complaint—on March 26, 2019. (ECF No. 16 at 5.)

STANDARD OF REVIEW

A court evaluating a motion to dismiss must accept as true the factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Town of Babylon v. Fed. Hous. Fin. Agency, 699 F.3d 221, 227 (2d Cir. 2012). However, an action will survive only if the law recognizes the claims, and if the complaint pleads "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). This standard requires more than an "unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

Allegations in pro se complaints are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must read a pro se complaint liberally and interpret it to raise the strongest arguments it suggests, especially when it alleges civil rights violations. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008); Weixel v. Bd of Educ. of City of New York, 287 F.3d 138, 146 (2d Cir. 2002) (citing Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001)).

DISCUSSION

The defendant claims that the complaint should be dismissed because the plaintiff did not appeal the arbitrator's decision against her, and thus did not exhaust her administrative remedies. The plaintiff responds that her complaint is premised on her earlier Title VII complaint, does not concern her termination, and has been exhausted at the administrative level.

5 U.S.C. § 7121 and 29 C.F.R. § 1614.301(a) govern discrimination claims brought by federal employees who are bound by collective bargaining agreements. See generally Delaney v. Hood, No. 07-CV-471, 2009 WL 3199687, at *12 (E.D.N.Y. Sept. 30, 2009). Pursuant to Section 7121(d), an aggrieved federal employee "may raise the matter under a statutory procedure or the negotiated procedure, but not both." 5 U.S.C. § 7121(d); see also O'Dwyer v. Snow, No. 00-CV-8918, 2004 WL 444534, at *7 (S.D.N.Y. Mar. 10, 2004) ("An employee raising discrimination claims therefore must choose in which fora, either the negotiated grievance procedure or the statutory forum, [she] wishes to pursue [her] administrative remedy.") (citation omitted). The statute specifies that an employee makes her election "at such time as the employee timely initiates an action under the applicable statutory procedure or timely files agrievance in writing, in accordance with the provisions of the parties' negotiated procedure, whichever event occurs first." Id.; see also 20 C.F.R. § 1614.301(a).

An aggrieved employee cannot pursue both avenues of relief, and her election is irrevocable. Vinieratos v. U.S., Dept. of Air Force Through Aldridge, 939...