Clifford v. Barnhart

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Torruella
• Citation: Clifford v. Barnhart, 449 F.3d 276 (1st Cir. 2006)
• Decision Date: 09 June 2006
• Docket Number: No. 05-2437.,05-2437.
• Parties: Peter R. CLIFFORD, Plaintiff, Appellant, v. Joanne B. BARNHART, Commissioner, Social Security Administration, Defendant, Appellee.

Page 276

449 F.3d 276

Peter R. CLIFFORD, Plaintiff, Appellant, v. Joanne B. BARNHART, Commissioner, Social Security Administration, Defendant, Appellee.

No. 05-2437.

United States Court of Appeals, First Circuit.

Heard April 6, 2006.

Decided June 9, 2006.

James G. Noucas, Jr., with whom Noucas Law Office was on brief, for appellant.

Evan J. Roth, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney, were on brief, for appellee.

Before TORRUELLA, LYNCH and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

This is an appeal from a grant of summary judgment in favor of Joanne B. Barnhart, Commissioner of the Social Security Administration ("SSA"), and against Peter R. Clifford ("Clifford") on his employment discrimination claims. Clifford contests the district court's determination that he failed to generate a triable issue that SSA's decision not to hire him for certain positions was motivated by discriminatory animus. After careful consideration, we affirm.

I. Background

From July 1974 to December 1995, Clifford worked for SSA as a Social Insurance Representative, a Quality Review Specialist, a Supervisory Quality Review Specialist, a Manager of Quality Assurance, and a Field Representative. In December 1995, however, Clifford left SSA on disability retirement due to a neurological disease that limited his ability to perform repetitive hand functions, such as computer key-boarding.

Despite his retirement, in 1999 and 2000, Clifford applied for three positions within SSA—Metropolitan Public Affairs Specialist ("MPAS"), Management Support Specialist ("MSS"), and Social Insurance Specialist ("SIS"). However, he was not selected for any of these positions. Believing that his non-selection was due to either age or disability discrimination, Clifford filed a number of administrative Equal Employment Opportunity ("EEO") claims with SSA. These claims were denied.

On November 10, 2003, Clifford filed a complaint in the United States District Court for the District of Maine, alleging discrimination based on age and disability pursuant to the Age Discrimination and Employment Act of 1967, 29 U.S.C. §§ 621-634, and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796.¹ Specifically, Clifford alleged that those who were selected for the three jobs he desired were substantially younger than him and not disabled. Clifford alleged that SSA's selecting officials made their decisions because the selectees had "current" [i.e., up-to-date] knowledge or experience. However, according to Clifford, current knowledge or experience was not included as a condition or criterion in the vacancy announcements for the positions. Clifford alleged that the only reason he lacked current knowledge and experience was his disability retirement from SSA in December 1995. However, given his long history of SSA employment, Clifford asserted that the agency could have provided him with training to "accommodate" his lack of current knowledge and experience. On that basis, Clifford claimed that his non-selection amounted to age and disability discrimination.

On January 15, 2004, SSA filed an answer that denied Clifford's discrimination allegations. The same day, the agency filed a motion for summary judgment based on the affidavits generated in the EEO administrative process from the two officials at SSA who were responsible for hiring employees for the positions Clifford desired, Patricia Biggers ("Biggers") and Lawrence DuBois ("DuBois") (collectively "selecting officials").² The EEO affidavits detailed the selection process for the three positions for which Clifford applied. DuBois and Biggers discussed the factors they were looking for in selecting people for the positions—for example, an awareness of current programs and policies, previous service, technical qualifications, the neatness and accuracy of application packages, and reasons for applying for the job. They also discussed the number of applicants and the selection process as a whole.

On February 5, 2004, Clifford opposed SSA's motion for summary judgment on the grounds that discovery was necessary to determine whether SSA's decisions were motivated by discriminatory animus. Pursuant to Fed.R.Civ.P. 56(f), Clifford's attorney proffered an affidavit that discovery was needed regarding (1) whether SSA procedures, policies, and programs changed dramatically between the time Clifford left SSA and applied for the three positions; (2) what, if any, training Clifford would need to assume any of the positions; and (3) the credibility of the selecting officials. Clifford also included excerpts from the EEO Investigative Report, including an unsworn letter from current SSA employee Norman Linden ("Linden") regarding his view that SSA should have hired Clifford.

On August 13, 2004, the district court entered an order denying SSA's motion for summary judgment without prejudice to its being refiled after discovery. The court concluded that Clifford's affidavit satisfied the requirements of Fed.R.Civ.P. 56(f) and that the court would be acting "too hastily" if it were to rule on summary judgment without the benefit of discovery.

Both parties thereupon continued with discovery, during which a number of additional depositions were taken (including those of Clifford, Biggers, DuBois, and Linden). In these depositions, three important facts relevant to this appeal were revealed. First, with limited exception, SSA had a practice of using internal merit promotions to fill higher level positions. Second, selecting officials were supposed to choose a candidate from the so-called "best qualified" list, made up by human resources specialists using a scoring system. Scores, however, were not provided to the selecting officials and were not used to make hiring decisions. Third, selecting officials valued current knowledge and experience in potential employees, because "things are changing regularly [at SSA]." During the course of these additional depositions, Clifford abandoned his age discrimination claim.

On March 24, 2005, after the close of discovery, SSA again moved for summary judgment, based on the same EEO affidavits from DuBois and Biggers that formed the basis of its 2004 summary judgment motion. SSA explained in its 2005 motion:

The Complaint asserts discrimination (Complaint ¶ 23). In this case, however, the Social Security Administration has proffered legitimate, non-discriminatory reasons for Clifford's non-selection in each of the three positions at issue. With respect to all three positions, the Social Security Administration was seeking to hire someone with current experience who could begin the job immediately without the need for training or preparation. Those criteria were important because the Social Security Administration's systems and procedures had changed significantly since the time Clifford was last employed in 1995. The selecting officials exercised their judgment and decided that the other applicants were superior to Clifford.

On April 28, 2005, Clifford opposed this summary judgment motion with three primary arguments. First, he argued—for the first time—that SSA was liable for "disparate impact" discrimination on the grounds that SSA relied on a facially neutral employment practice that resulted in a disproportionately negative impact on a protected group. According to Clifford, "[b]ecause the SSA virtually always fills such higher grade positions through internal promotion, it systematically excludes qualified non-current employees, such as the plaintiff, from employment opportunities for which [they are] qualified." Second, Clifford argued—also for the first time—that SSA was liable for making "prohibited inquiries and disclosures" regarding his disability, contrary to 42 U.S.C. § 12112(d). Although Clifford had affirmatively applied for the SSA positions under the permissive hiring authority for disabled individuals known as "Schedule A," he nevertheless argued that SSA violated § 12112 by informing the selecting officials that he was eligible for hire under Schedule A. Third, Clifford argued that SSA's selecting officials improperly relied on his lack of "current" SSA experience and ignored the fact that he received high scores in the pre-qualifying round that was used to generate the "best qualified" list.

On May 16, 2005, SSA replied to each argument. First, SSA argued that Clifford's new "disparate impact" allegation was procedurally barred because Clifford failed to assert it at the EEO level, in his federal court complaint, or in response to SSA's 2004 motion for summary judgment. Second, SSA argued that Clifford's new statutory claim was not only procedurally barred, but that it misconstrued the meaning of 42 U.S.C. § 12112(d)(2)(B), which actually authorizes federal agencies such as SSA to inform selecting officials that a candidate is eligible for hire under Schedule A. Third, SSA pointed out that Clifford had still failed to offer any evidence of discriminatory animus on account of disability.

On June 28, 2005, the magistrate judge to whom the case had been referred issued a decision recommending summary judgment in favor of SSA because (1) Clifford failed to exhaust his administrative remedies or otherwise give notice of any "disparate impact" claim; (2) Clifford likewise failed to properly raise any § 12112(d) claim, but even if he had, there was no evidence to support a violation; and (3) SSA's hiring decisions were based on legitimate non-discriminatory reasons about which Clifford failed to generate a triable issue of discriminatory animus (i.e., Clifford failed to show that he was the victim of disparate treatment).

On August 9, 2005, the district court affirmed the magistrate judge's recommended decision and granted SSA's motion for summary judgment. On August 10, 2005, the district court entered final judgment in favor of SSA.

In this appeal, Clifford is not contesting the district court's rejection of his...