Edelstein v. Berryhill
| Decision Date | 03 December 2018 |
| Docket Number | CASE NO. 1:18-CV-00077 |
| Parties | JOSEPH EDELSTEIN, Plaintiff, v. NANCY A. BERRYHILL, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
OPINION AND ORDER
In 2009, Plaintiff Joseph Edelstein, a dedicated and competent attorney for the Social Security Administration (SSA) since 1986, applied for the position of Administrative Law Judge (ALJ). Edelstein contends that the SSA failed to promote him based on his religion and his age, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq, and the Age Discrimination in Employment Act of 1976 (ADEA), 29 U.S.C. § 633a, et seq.
This case is before the Court on cross-motions for summary judgment: Plaintiff's Motion for Summary Judgment (Plaintiff's Motion), Doc #: 28, and Defendant's Motion for Summary Judgment (Defendant's Motion), Doc #: 27. The Court has reviewed the Motions, Plaintiff's Opposition Brief, Doc #: 29, and Defendant's Opposition Brief, Doc #: 31. Although the record shows Edelstein was more than qualified to be an ALJ, it is the Court's conclusion, as will be shown below, that he has failed to show the decision not to promote him was unlawfully based on his religion or his age.
Plaintiff Joseph Edelstein is an Orthodox Jew who is 66 years old today.1 At the time Edelstein applied for the position of ALJ, he was 56 years old and had been an SSA attorney for 23 years, a Senior Attorney for the SSA for 14 years, and a magistrate judge. Def. Mot. at 3. The record shows that he generally completed approximately 300 decisions per year, and that he was a reliable employee who mentored new attorneys (including one who was appointed to an ALJ position over Edelstein) and some new ALJs. Pl. Mot. at 9, 10, 11. In support of his application, attorneys, colleagues, and current ALJs wrote highly of Edelstein. For example, ALJ Thomas Ciccolini, Edelstein's Hearing Office Chief ALJ, wrote that he was extremely qualified for the position, "is thoroughly[,] ethically[,] and technically proficient in all respects," and could be counted on to fulfill the duties required of an ALJ. Id. at 2, 3. Others urged that the SSA "could not get a better person" and that in his current position, Edelstein serves as the "go to person for difficult cases." Id. at 9, 10.
In 2009, based on his years of experience, Edelstein applied to be an ALJ and was subsequently placed on the register of qualified candidates. Pl. Mot. at 1. Candidates on this register are listed in numerical order, based on the location of the vacancy and the applicant's geographic preferences. (Edelstein requested consideration for ALJ positions in Akron and Cleveland, Ohio). Id. Eligible candidates are then interviewed by a two-member panel of ALJs and assessed according to fourteen "important competencies that effective ALJs generally bring to the job." Def. Mot. at 2, 3. A different two-member panel of ALJs then reviews the candidate's application folder, which includes his/her resume, references, background investigation summary, and interview rating, and assigns the candidate a review rating of"Highly Recommend," "Recommend," or "Not Recommend." Id. at 3. The panel, when appropriate, also provides additional guidance for its rating, such as "low" or "borderline" recommend. Id. To complete this process, the agency's appointing official selects the new ALJ from amongst the highest three eligible candidates that are available for appointment. Id. In doing so, the appointing official is "not required to consider an eligible who has been considered by him for three separate appointments from the same or different certificates for the same position." Id.; 5 C.F.R. § 332.405.
In June 2010, ALJs David Hatfield and Lisa Dabreu conducted Edelstein's interview. Def. Mot. at 4. They asked Edelstein a series of questions and recorded their observations to his responses. Id. They wrote that Edelstein made "very little eye contact" and "closed [his] eyes during most of the interview." Id. They noted that his answers were "vague and shallow," and that when asked why he wanted to be an ALJ, Edelstein "repeatedly indicated that he needed the money" and that he was interested in the position because it was a "lifetime position." Id.
Edelstein readily admits that his interview went poorly. Def. Mot. at 4. He testified that the interview "for some reason just from the get-go didn't go well," and that "the more [he] spoke the worse it got." Id. Nonetheless, Edelstein asserts that he never used the word "money" during his interview. Pl. Mot. at 6. Instead, he used the word "income" twice when discussing the security of the position, its benefits, and the fact that it would allow him to support his wife and five children. Id. Edelstein contends that the ALJs' interpretation of his responses were reflective of "an ancient and vile stereotype" and derogatory of his Judaism. Id.
Although Edelstein's prior work as a magistrate was discussed at the interview, ALJ Hatfield noted his concern that Edelstein's magistrate work was not reflected in his resume. Pl. Mot. at 5. The record shows, however, that at the interview, both ALJs had Edelstein's completeresume, which included his previous magistrate experience. Id. at 7. Regardless, the ALJs wrote "Not Recommend" for seven of the fourteen competencies and "Recommend" for the other seven. Def. Mot. at 4. They then submitted their interview ratings to the Office of the Chief ALJ. Id.
Pursuant to the application process, ALJs Clarence Moore and Katherine Thomas comprised the two-member panel that reviewed Edelstein's 2010 application folder. Def. Mot. at 5. Upon review, they gave Edelstein a rating of "Borderline Recommend" based on his "good supervisory recommendations" but "very poor interview." Id.; see supra at 2. In 2011, after Edelstein submitted additional favorable references,2 ALJs Moore and Thomas reviewed Edelstein's folder again, but did not change his "Borderline Recommend" rating due to his "very poor interview." Id. Notably, Edelstein asserts that this two-member panel did not discriminate against him. Id. at 13.
In 2011, Regional Chief ALJ Jasper Bede considered Edelstein's application for an ALJ position in Akron. Id. This was the third ALJ position that Edelstein was considered for after he was not selected in 2010 for two other vacancies in Akron. Id. Upon review, ALJ Bede selected Stewart Goldstein for the position. Id. Goldstein is older than Edelstein and also Jewish, but not an Orthodox Jew. Pl. Mot. at 5.
During his interview, Goldstein, a member of the National Treasury Employees Union (NTEU), stated that he "could not do 500-700 decisions [per] year," that he delegates work to others, and that he "is not an expert at anything except getting re-elected." Pl. Mot. at 8. Following his initial folder review, Goldstein was given a rating of "poor." Id. Both Edelstein and Goldstein had poor interviews, but the differences between both applicants with respect totheir previous employment, work product, and recommendations are noteworthy. Id. at 9, 10, 11. At the time they submitted their applications, Goldstein was a Union Officer, while Edelstein was a Senior Attorney for the SSA and a former magistrate judge. Id. at 10. In comparing their work product, from 2007 to 2011, Goldstein wrote a total of 201 decisions, while Edelstein wrote 1,141 decisions. Id. at 11. And Edelstein received a number of recommendations from both ALJs and attorneys, each encouraging his selection and detailing his qualifications for the position, while Goldstein's recommendations only pertained to his work as a Union Officer. Id. at 9, 10.
Prior to selecting Goldstein for the Akron ALJ vacancy, ALJ Bede was Goldstein's Regional Chief ALJ. Pl. Mot. at 12. As such, he was asked to comment on whether Goldstein was qualified to become an ALJ. Id. On May 9, 2008, ALJ Bede opined that Goldstein "has consistently demonstrated that he cannot function well in a position which requires the management of a large docket, efficient evaluation of complex facts, and timely decision making." Id. On April 9, 2009, ALJ Bede stated that he could not identify any of Goldstein's strengths as an employee and questioned whether he is "technically proficient." Id. at 12, 13. On July 17, 2010, however, ALJ Bede wrote of Goldstein "I am not familiar with this applicant and cannot provide a reference." Id. at 13. Pursuant to ALJ Bede's last comment, Goldstein filed a reprisal grievance through his union against the SSA, and the two parties came to a settlement agreement. Id. Nine months later, on April 27, 2011, after a fourth folder review by ALJs Moore and Thomas, the same ALJs who reviewed Edelstein's folder, increased Goldstein's rating to "Recommend." Id. Goldstein was subsequently hired for the Akron ALJ position, allowing him to join fellow NTEU members and ALJs James Hill and Barbara Sheehe. Id. at 13.
After Edelstein was not selected for the Akron ALJ vacancy, ALJ Bede declined to consider his application for two Cleveland vacancies because he had already been considered for three separate ALJ appointments. Def. Mot. at 6. Instead, ALJ Bede selected Charles Shinn, whom Edelstein had previously mentored, and William Mackowiak, who was older than Edelstein, for the Cleveland positions. Pl. Mot. at 4.
Edelstein subsequently filed a complaint with the EEOC, alleging age and religious discrimination with regard to the SSA's hiring of Goldstein, Shinn, and Mackowiak. Def. Mot. at 6. After exhausting his administrative remedies, the EEOC sent Edelstein a right-to-sue letter, authorizing him to file suit under Title VII and the ADEA in federal district court. Doc #: 9-1 (EEOC Letter). Edelstein did so on January 11, 2018. Def. Mot. at 6.
Summary judgment is appropriate 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...
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