Mackall v. Colvin

Decision Date29 January 2015
Docket NumberCivil Action No. ELH-12-1153
PartiesRENITA J. MACKALL, Plaintiff, v. CAROLYN COLVIN Defendant.
CourtU.S. District Court — District of Maryland
MEMORANDUM OPINION

Renita J. Mackall, plaintiff, has sued Carolyn Colvin, defendant, in her capacity as Acting Commissioner of the United States Social Security Administration ("SSA"), pursuant to Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. §§ 2000e et seq. See ECF 21 ("Amended Complaint" or "Am. Compl.").1 Plaintiff alleges employment discrimination based on race (Count I) and unlawful retaliation (Count II). She claims, inter alia, that a performance evaluation in 2010 was a "downgrade" based on race, and that the evaluation rendered her "ineligible" for a cash employee incentive award. Id. ¶ 19.

In response to the original Complaint (ECF 1), defendant filed a "Motion to Dismiss or, in the Alternative, for Summary Judgment." See ECF 4. As an exhibit to that motion, defendant appended the Report of Investigation ("ROI No. 1") prepared by the Equal Employment Opportunity Commission ("EEOC") in connection with an Equal Employment Opportunity("EEO") complaint filed by plaintiff on or about July 28, 2010.2 As discussed, infra, that motion was administratively terminated. See ECF 9; ECF 10.

After plaintiff filed her Amended Complaint, defendant filed another "Motion to Dismiss or, in the Alternative, Motion for Summary Judgment" (ECF 24) and a supporting memorandum (ECF 24-1) (collectively, the "Motion"). That Motion is now pending. As an exhibit to the Motion, defendant submitted the Report of Investigation ("ROI No. 2") prepared by the EEOC in connection with an EEO complaint filed by plaintiff on January 25, 2011.3 Plaintiff opposes the Motion (ECF 32, the "Opposition"),4 and has submitted nineteen exhibits. They include, inter alia, the performance evaluations of plaintiff's co-worker, Tatia Little, and the declarations of plaintiff; plaintiff's former first-line supervisor, Heath Kelly; and Jeffrey Menzise, Ph.D., who is described as an expert "in the area of racial and cultural studies." ECF 32-17 ¶ 1. Defendant has replied (ECF 33, the "Reply").

The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will construe the Motion as one for summary judgment, and I will grant it.

I. Background
A. Factual Background5

Mackall, an African American woman, has worked for SSA since August 13, 1989. Am. Compl., ECF 21 ¶ 5. In 2007, she became a Program Expert in the Policy and Program Branch, Center for Program Support, at a pay grade of GS-13. Id. ¶¶ 5, 6.6

SSA's fiscal year and employer appraisal periods run from October 1 through September 30. Id. ¶ 7. SSA utilizes a three-tiered rating system to evaluate the performance of its employees. See National Agreement of 2005 between SSA and the American Federation of Government Employees Art. 21 ("Collective Bargaining Agreement"), ROI No. 2 at 328-342; Reply, ECF 33 at 8. Level 5, the best rating, corresponds to Outstanding Contribution; Level 3 corresponds to Successful Contribution; and Level 1 refers to a rating of Not Successful. Collective Bargaining Agreement, ROI No. 2 at 328. Pursuant to the terms of the Collective Bargaining Agreement, "An appraisal rating of at least 'Successful' is required in order to be considered for awards and/or promotions." Id. at 328. But, an employee must "earn a 4.0 or above" to receive a Recognition of Contribution Award. Management Affidavit of Jack Leuchtman dated April 29, 2011 ("Leuchtman Affidavit"), ROI No. 2 at 133.7

From 2007 through June 2009, plaintiff's supervisor was Heath Kelly, an African American male who held the position of Program Manager in the Center for Program Support. Am. Compl., ECF 21 ¶ 7. He served as plaintiff's first-line supervisor for the 2008-2009 year. Id. ¶ 12. In October 2009, Kelly proposed a performance assessment score for plaintiff of 5.0 for the fiscal year ending September 30, 2009. Id. ¶¶ 7, 31. This is the best possible assessmentscore. Id. But, he was allegedly told by his supervisor, Center Director Billy Donner, to reduce plaintiff's final score to 4.5. Id. ¶ 7. Nevertheless, based on that score, plaintiff received a Recognition of Contribution Award in 2009, a cash award based on her performance for that year. Id. ¶ 42.8

As of October 2009, there was a change in management of the Center for Program Support, along with a change as to Mackall's team of supervisors. Id. ¶ 8. Keerti Sulibhavi, a woman of Indian descent, replaced Mr. Kelly as plaintiff's first-line supervisor; Jacqueline Ruiz, who is Hispanic, became plaintiff's second-line supervisor; and Jack Leuchtman, a white male, was her third-line supervisor. Id.

On or about May 17, 2010, Sulibhavi provided Mackall with her mid-year performance assessment for fiscal year 2010. Id. ¶ 9. According to plaintiff, the assessment was "unremarkable in its absence of any negative comment, with indication that Plaintiff's performance in some areas of work merited favorable comment." Id. Ms. Sulibhavi stated in a "Management Affidavit" dated May 4, 2011 ("Sulibhavi Affidavit"), ROI No. 2 at 112-120, that the review was "positive," but she also claimed that she identified areas for plaintiff's improvement in Interpersonal Skills and Achieving Business Results. Id. at 114.

Less than a month later, on or about June 11, 2010, Sulibhavi provided Mackall with an "optional" mid-year performance assessment for fiscal year 2010. Am. Compl., ECF 21 ¶ 10.9 Sulibhavi allegedly "gave no reason" for another assessment. Id. Sulibhavi commented that Mackall's '"non-courteous responses were noticed when [her] manager attempted to communicate on several occasions.'" Id. She also noted that plaintiff had become '"unreceptiveto change initiatives and management requests and inquiries, which indicate [her] unwillingness to conform to new initiatives."' Id.; see also PACS Performance Plan: Non-Managers Performance Discussion dated June 11, 2010 regarding Renita Mackall ("Optional Assessment"), ROI No. 2 at 158-59.10 According to Mackall, this "sharply critical" Optional Assessment reflected a "decided shift from the favorable tone" apparent in the initial mid-year assessment prepared less than one month earlier. Am. Compl., ECF 21 ¶ 10.11

During the meeting on June 11, 2010, Mackall asked Sulibhavi for specific examples to explain the basis for the unfavorable performance review in her Optional Assessment, and "the failure of management to address such concerns in the mid-year assessment given just 18 work days earlier," on May 17, 2010. Am. Compl., ECF 21 ¶ 11. When Sulibhavi did not offer any "specific corroboration," plaintiff "pressed the discussion further without substantive response. . . ." Id.; see Opposition, ECF 32 at 7 n.5. Because of the absence of "specific corroboration," plaintiff characterized Sulibhavi's comments in the evaluation as "'lies'" and claimed that "the failure of management to address such concerns in the mid-year assessment reflected poorly on the competence of management." Am. Compl., ECF 21 ¶ 11; see Opposition, ECF 32 at 7 n. 5.12 As a result of Ms. Mackall's comments to Sulibhavi, and as discussed, infra,Ms. Mackall received a written reprimand for "conduct unbecoming a federal employee." ECF 21 ¶ 11.

Following Mackall's meeting with Sulibhavi, Mackall sought an explanation from Leuchtman, her third-line supervisor, for the "negative performance optional assessment." Id. ¶ 13.13 In response, Leuchtman highlighted an incident that transpired at a meeting on May 20, 2010, attended by plaintiff, Little, and Ruiz, among others. Id. ¶¶ 13, 14. The purpose of that meeting was to brief SSA Associate Commissioner Carolyn Simmons on a particular project. Id. ¶ 14. Simmons is African American and, on the SSA hierarchy, she outranks plaintiff's chain of supervisors, including Ruiz. Id.

According to plaintiff, in response to an interruption from Ruiz, Simmons peered at Ms. Ruiz over her glasses and stated: "'Let me make myself clear.'" Id. ¶ 14. Mackall observed that, for the rest of the meeting, Ruiz did not speak and appeared as though she had been "rebuked." Id. Plaintiff also contends that she and her co-worker, Tatia Little, remained quiet for the duration of the meeting. Id. ¶ 16. Nonetheless, Leuchtman claimed that he had been advised that, during the meeting, Mackall and Little "had been rude or had made rude comments or gestures" to Ruiz, plaintiff's second-line supervisor. Id. ¶ 13.

Plaintiff alleges that, due to the exchange between Simmons and Ruiz during this meeting, Ruiz "was embarrassed, and harbored as a result racial animus" against Simmons, who, as indicated, is African American. Id. ¶ 15. According to plaintiff, Ruiz then directed this "racial animus" towards plaintiff and Little, "the lowest ranking African American personnel in the room" during the meeting, who worked under the supervision of Ruiz. Id. ¶ 15. Plaintiffcontends that, to the extent that Leuchtman was notified about allegedly rude behavior on the part of plaintiff and Little during the meeting of May 20, 2010, "these reports were made as the product of a motivation other than accurately reporting events." Id. ¶ 16.

According to plaintiff, a similar, nearly simultaneous optional evaluation and downgrade occurred with respect to Little, her African American colleague, who shared plaintiff's chain of supervisors. Am. Compl., ECF 21 ¶ 12.14 She recounts in the Amended Complaint facts pertinent to Little's evaluations, including the overall assessment score of 4.0 that Little received from Mr. Kelly for 2009. Id.

Plaintiff explains that on or about May 19, 2010, Little testified as a witness at a Merit Systems Protection Board and EEO hearing in support of Delinda Morrison, an SSA employee who alleged discrimination by the agency. Id. ¶ 17. According to plaintiff, Little's appearance at this proceeding...

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