Powell v. Colvin

NORMA POWELL, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER, SOCIAL SECURITYADMINISTRATION, Defendant.

Case No. 2:13-cv-2314-TMP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DIVISION OF ALABAMA SOUTHERN DIVISION

April 26, 2016

MEMORANDUM OPINION

This cause is before the court on the motion for summary judgment filed September 1, 2015, by the defendant, Carolyn W. Colvin, Acting Commissioner of the Social Security Administration ("SSA"). Defendant seeks dismissal of plaintiff Norma Powell's claim that she was discriminated against based on her age, in violation of the Age Discrimination in Employment Act (" ADEA"), 29 U.S.C. § 623(a), when the SSA failed to promote her in 2012. This matter has been fully briefed, and the court has considered the evidence and arguments set forth by both parties. The parties have consented to the exercise of jurisdiction by the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c).

SUMMARY JUDGMENT STANDARD

Under Federal Rule of Civil Procedure 56(a), summary judgment is proper " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former Fed. R. Civ. P. 56(c)). The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof Celotex, 477 U.S. at 322-23. There is no requirement, however, "that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 323.

Once the moving party has met his burden, Rule 56 "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions of file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting former Fed. R. Civ. P. 56(e)). The nonmoving party need not present evidence in a form necessary for admission at trial; however, he may not merely rest on his pleadings. Celotex, 477 U.S. at 324. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.

After the plaintiff has properly responded to a proper motion for summary judgment, the court must grant the motion if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The substantive law will identifywhich facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. His guide is the same standard necessary to direct a verdict: " whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52; see also Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 745 n.11 (1983). However, the nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249 (citations omitted); accord Spence v. Zimmerman, 873 F.2d 256 (11th Cir. 1989). Furthermore, the court must "view the evidence presented through the prism of the substantive evidentiary burden," so there must be sufficient evidence on which the jury could reasonably find for the plaintiff. Anderson, 477 U.S. at 254; Cottle v. Storer Communication, Inc., 849 F.2d 570, 575 (11th Cir. 1988). Nevertheless, credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury, and therefore the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The non-movant need not be given the benefit of every inference but only of every reasonable inference. Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988).

FACTS

Viewing the evidence in the light most favorable to the non-moving party, in this case the plaintiff, the following facts are relevant to the instant motion.

The plaintiff is a female more than 40 years old, being 63 years old at the time the promotion decision challenged here was made. Powell worked for the SSA for more than 15 years as a Telephone Service Representative (referred to within the SSA as a "TSR"), with an employment rank of GS-8. She still was employed in that position at the time the complaint was filed.

In June of 2012, Powell applied for a position as Technical Advisor ("TA"). The position was a GS-9 position, and thus would have been a promotion. The TA position involved providing guidance, monitoring, recommendations and oversight to employees working as TSRs. Selection of the TSRs for the promotion at issue in this case was governed by the SSA's Merit Promotion and Placement Plan. The decision regarding selecting employees to be promoted to TA was made by a Selection Panel, which consisted of four section managers of the Birmingham office of the SSA. The panel included Rhonda Groveman, who is 54 years old; Vivian Handy, 58; Debra Newbold, 56; and Luis Fernandez, who was then 45. Plaintiff does not allege that Fernandez had any discriminatory motive. Reginald Jenkins, the deputy director of the Birmingham office, served as Concurring Official with the Selection Panel. He was 37 years old at the time of the promotion decision.¹ Although it is not entirely clear, it appears that five TSRs were selected for promotion to five TA positions.

Powell was 63 years old at the time that she applied. There were 50 other applicants, and all were younger than Powell. None of the panel members, except Handy, was aware of Powell's age, although it was recorded in her personnel records. Powell has testified that Handy was present at Powell's 50^th birthday party, and that Handy said that she hoped she would look that good when she turned 50.²

From the 50 original applicants, the Selection Panel compiled a "short list" of 15 applicants, each of whom had received a "highly recommended" rating from their supervisors. (Doc. 18-9). Powell was on the short list, along with all of the persons ultimately selected. The panel evaluated the 15 on the list, and ranked them based upon supervisory experience, recent performance awards, education (particularly in relevant coursework), evidence of professional development, leadership skills, technical skills, and supervisor recommendations. (Decl. of Groveman, doc. 18-4; Decl. of Handy, doc. 18-5; Decl. of Newbold, doc. 18-6).³ Theapplication did not contain an age or birthdate for any applicant, but did indicate the date of hire. No interviews were conducted. The panel reviewed the applications and the recommendations, and compared those to the criteria for selection in order to reach its conclusions.

The criteria applicable to the position of TSR was listed as:

Technical Knowledge: Demonstrated by consistently receiving highest awards and includes honor awards. Consistently exhibited outstanding performance and adhered to the availability policy. Have prior instructor and/or mentor experience and prior temporary or acting TA experience.

Communication Skills and ability to convey information to others: Demonstrated through prior instructor and mentor experience and prior temporary or acting TA experience. Demonstrated by consistently exhibited outstanding performance and receiving highest awards in the last 5 years.

Interpersonal Skills: Demonstrated through prior instructor and mentor experience. Demonstrated by consistently exhibited outstanding performance and receiving highest awards in the last 5 years.

Leadership Skills: Demonstrated through prior experience as a lead instructor, manager or chair, co-chair, president or vice president of and [sic] organization.

Reliability: Ability to carry out duties with minimum supervision while working independently. Completes assignments accurately, efficiently, and accurately [sic].

Additional Development within the Agency

Demonstrated ability to effectively teach and research procedure

Dependability

Use and understand CHIP

Initiative

SCD

Time in grade

(Defendant's Ex. 20, Doc. 18-21).

The panel submitted the list of 15 recommended applicants, ranking the 15 individuals from first to fifteenth. Jenkins concurred in the selections of candidates ranked as first, second, third, fourth and sixth. The candidate ranked fifth was not given the promotion. She was age 37 at the time, and Jenkins cannot recall why he did not confirm her selection. Plaintiff was ranked ninth.

The panel hired the following five of the 15 "short list" candidates for the TA positions:

- Lorenza Ferrell. Ferrell was 54 years old when he received the TA position. He had worked at SSA since 20...