Venable v. Apfel, 4:96CV00893.

19 F.Supp.2d 455

Cleve C. VENABLE, Jr., Plaintiff, v. Kenneth S. APFEL, Commissioner of the Social Security Administration, Defendant.

No. 4:96CV00893.

United States District Court, M.D. North Carolina, Salisbury Division.

July 29, 1998.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Terry Fay Rose, Charlotte, NC, for Plaintiff.

Gill P. Beck, Office of U.S. Atty., Greensboro, NC, Mary A. Sloan, Soc. Sec. Admn., Chief Counsel, Atlanta, GA, for Defendant.

MEMORANDUM OPINION

BEATY, District Judge.

This matter is presently before this Court on Defendant Kenneth S. Apfel's Motion to Dismiss and Motion for Summary Judgment [Document # 18], which were filed on behalf of the Social Security Administration ("SSA"). For the reasons stated herein, Defendant's Motion to Dismiss Plaintiff's 42 U.S.C. §§ 1983, 1985, and 1988 claims and Defendant's Motion for Summary Judgment as to Plaintiff's Age Discrimination in Employment Act ("ADEA") and Title VII claims are hereby GRANTED and this action is DISMISSED. Defendant's Motion to Strike [Document # 16] Plaintiff's Jury Demand as to his ADEA claim is hereby rendered MOOT.

I. FACTS and PROCEDURAL HISTORY

This is an age and sex discrimination cause of action arising out of Plaintiff's contention that SSA management made the decision not to promote Plaintiff, a male over the age of forty, but instead to promote Renee Caldwell ("Caldwell") because Caldwell was significantly younger than Plaintiff and because she was a female. The facts leading up to Caldwell's promotion over Plaintiff are as follows. Plaintiff first began working for the SSA in 1975 as a Claims Representative in its Huntsville, Alabama office. In 1981, Plaintiff was promoted to the position of Operations Supervisor ("OS"). (Pl.'s Reply Br. at 2.) As an OS, Plaintiff was in charge of supervising Title XVI claims but was not in charge of supervising Title II claims.¹ (See Pl.'s Ex. 10.) While employed at the Huntsville office, Plaintiff received excellent evaluations for his job performance as well as honorary awards in recognition of his achievements. (Pl.'s Ex. 1.) In 1987, Plaintiff voluntarily accepted a position as a Title XVI Claims Representative in the Salisbury, North Carolina SSA office in order to be geographically closer to his family. (Pl.'s Ex. 2.) The position of Claims Representative was at a lower grade than the OS position. (Id.; Pl.'s Reply Br. at 2.) It was Plaintiff's understanding that he would be able to reapply for the OS position in the Salisbury office when the position became available. (Pl.'s Reply Br. at 2.)

In 1990, Caldwell began working as a Title II Claims Representative in the Salisbury SSA office. (See Pl.'s Ex. 9 at 14.) Initially, District Manager Lillian Hatley ("District Manager Hatley" or "Manager Hatley") trained Caldwell as a Title II Representative. (Def.'s Ex. A at 1; Def.'s Ex. B ¶ 8; Pl.'s Ex. 3 at 101; Pl.'s Ex. 5 at 85-90.) During 1991 and 1992, Caldwell also was given the opportunity to cross-train for the Title XVI position as well. (Pl.'s Ex. 5 at 80.) At the time that Caldwell was given the opportunity to cross-train, Plaintiff was not working in the Salisbury office because he had accepted a one-year work assignment in the Baltimore, Maryland SSA office to assist with the development of a new program for Social Security. (Pl.'s Reply Br. at 3, 6; Pl.'s Ex. 1.)

In the fall of 1993, it became known that Racine Douglas, the then current OS, would be leaving the Salisbury office. At first, it was not believed that the OS position would be filled as a result of a need to downsize. (Pl.'s Ex. 3 at 102.) However, in February of 1994, it was announced that the Salisbury office could fill the OS position. (Def.'s Br. at 2; Ex. C at 138.) Both Plaintiff and Caldwell submitted applications to the promotion committee in Atlanta, Georgia to be considered for the OS position.

At that time, the application process for an open position consisted of two-parts: (1) an objective determination of the Best Qualified List ("BQL"), and (2) a subjective selection of the best qualified applicant from the BQL. (Def.'s Ex. B ¶¶ 5, 7; Ex. C at 142-44, 204.) Each employee interested in being considered for the OS position submitted an application packet to the promotion committee in Atlanta, Georgia. (Def.'s Ex. C at 216, 137.) The initial BQL determination was made by this Atlanta, Georgia committee based upon an applicant's point total from a predetermined point system. (Id. at 137.) This point total was calculated from the candidate's application which included the applicant's appraisal, education, experience, awards, and outside activities, among other things. (Id.) Although certain activities and experience equaled certain points, the number of points that were assigned depended on how specifically a candidate described the activity or experience. (Pl.'s Ex. 3 at 108.) Once the BQL was determined, the BQL was listed alphabetically without any recognition of the applicant's BQL point total. (Def.'s Ex. C at 144 .) Then the selecting managers made a recommendation from this list. (Def.'s Ex. B ¶¶ 6-7; Ex. C at 144.)

On or about March 1, 1994, District Manager Hatley received a telephone call from her supervisor, Area Director Mary Cain ("Area Director Cain" or "Director Cain"), and was informed that Plaintiff and Caldwell were two of the eleven candidates who made the BQL. (Def.'s Ex. B ¶ 5; Ex. C at 175.) The nine other selectees were not from the Salisbury office. (Def.'s Ex. A; Ex. B ¶ 7; Ex. C at 176-77.) District Manager Hatley had not been involved in the process of determining who made the BQL and did not receive any information regarding the number of points each candidate received. (Def.'s Ex. B ¶ 5; Ex. 8, attached to Def.'s Ex. C.) Pursuant to the second step of the application process, in order to determine who would be best suited for the OS position, Hatley spoke with the supervisors of the other prospective candidates. (Def.'s Ex. A at 1.) After consideration of all the applicants, District Manager Hatley, with the help of Assistant Manager Ronald Buffaloe ("Assistant Manager Buffaloe" or "Manager Buffaloe"), determined that Caldwell was the best qualified for the OS position. (Def.'s Ex. A; Ex. B ¶ 8; Ex. C at 151-53, 157, 182-83, 192.) District Manager Hatley called Area Director Cain to explain her selection. (Def.'s Ex. C at 180-81.) Director Cain approved District Manager Hatley's recommendation based on Cain's knowledge of Caldwell's background, capabilities, and demonstrated performance. (Def.'s Ex. E.) Caldwell was selected for the OS position on March 31, 1994. (Id.; Def.'s Br. at 10.)

Based on these facts, Plaintiff has alleged claims of age and sex discrimination, both in violation of 42 U.S.C. §§ 1983, 1985, and 1988. Plaintiff has also alleged an age discrimination claim in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq., and a sex discrimination claim in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. Defendant moves to dismiss Plaintiffs §§ 1983, 1985, and 1988 claims for failure to state a claim upon which relief can be granted. Additionally, Defendant moves for summary judgment as to Plaintiff's ADEA and Title VII claims because Defendant has set forth legitimate, nondiscriminatory reasons for not selecting Plaintiff for the OS position and because Plaintiff has failed to demonstrate that these reasons are a pretext for discrimination based on age and sex. The Court will discuss each of Defendant's arguments in turn.

II. PLAINTIFF'S 42 U.S.C. §§ 1983, 1985, & 1988 CLAIMS

In Count I of Plaintiff's Complaint, Plaintiff appears to have alleged causes of action for violations of §§ 1983, 1985, and 1988 of Title 42 of the United States Code. Defendant has moved to dismiss these claims.² Initially, the Court notes that Plaintiff has not responded to Defendant's motion to dismiss these claims. As a result, pursuant to Local Rule 7.3(k), Defendant's motion to dismiss Plaintiff's claims under 42 U.S.C. §§ 1983, 1985, and 1988 will be treated as uncontested. See L.R. 7.3(k) (stating that if a respondent fails to file a response, the motion will be considered uncontested). Finding that the exclusive remedy for age and sex discrimination in employment for federal employees is the ADEA and Title VII respectively, see Zombro v. Baltimore City Police Dept., 868 F.2d 1364, 1368-69 (4th Cir.), cert. denied, 493 U.S. 850, 110 S.Ct. 147, 107 L.Ed.2d 106 (1989), the Court will grant Defendant's Motion to Dismiss as to Plaintiff's claims under 42 U.S.C. §§ 1983, 1985, and 1988.

III. PLAINTIFF'S AGE AND GENDER DISCRIMINATION CLAIMS

As the Court has noted previously, Plaintiff has also alleged claims for discrimination based on his age, in violation of the ADEA, 29 U.S.C. §§ 621 et seq., and based on his gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The ADEA provides that "[i]t shall be unlawful for an employer ... to fail or refuse to hire or to discharge an individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). The age-based protections of the ADEA are "limited to individuals who are at least 40 years of age." 29 U.S.C. § 631. Title VII establishes that "[a]ll personnel actions affecting employees ... in executive agencies .. shall be made free from any discrimination based on ... sex." 42 U.S.C. § 2000e-16(a). Defendant has moved for summary judgment as to Plaintiff's ADEA and Title VII claims.

A. Summary Judgment Standard

Summary judgment is appropriate when "there is no issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In making this determination, the Court views the evidence in the light most...