Murchison v. Astrue, Case No.: 08-cv-02665-JFM.

• Decision Date: 06 January 2010
• Docket Number: Case No.: 08-cv-02665-JFM.
• Citation: 689 F. Supp.2d 781
• Parties: Barbara MURCHISON v. Michael J. ASTRUE.
• Court: U.S. District Court — District of Maine

689 F.Supp.2d 781

Barbara MURCHISON v. Michael J. ASTRUE.

Case No.: 08-cv-02665-JFM.

United States District Court, D. Maryland.

January 6, 2010.

Phillip Robert Kete, Baltimore, MD, for Plaintiff.

Alex S. Gordon, Office of the United States Attorney, Baltimore, MD, for Defendant.

MEMORANDUM

J. FREDERICK MOTZ, District Judge.

Barbara Murchison ("Plaintiff") filed an amended complaint against Defendant Michael J. Astrue, Commissioner of the Social Security Administration ("SSA"), for declaratory and injunctive relief and for money damages under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Rehabilitation Act. Defendant has filed a motion to dismiss or, in the alternative, for summary judgment. For the reasons articulated below, this Court will grant Defendant's Motion for Summary Judgment.

FACTS

The following facts are set forth in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The SSA is divided into eleven departments, one of which is the Office of Communications ("OCOMM"). OCOMM is subdivided into three offices: the Office of External Affairs ("OEA"), the Office of Communications Planning and Technologies ("OCPT"), and the Office of Public Inquiries ("OPI"). (Pl.'s Mem. in Opp. to Def.'s Second Mot. to Dismiss or for Summ. J. ("Pl.'s Mem."), Ex. 1 (Murchison, EEC Case. No. 120-2003-00489X (2005)) at 3.) OEA is further subdivided into two divisions, one of which is the Office of Regional Communications, Inter-Governmental and Community Affairs ("ORCICA"). (Id., Ex. 1 at 3.) OPI is subdivided into three divisions, one of which is the Public Inquiries Distribution Center ("PIDC"). (Id., Ex. 1 at 3.)

Plaintiff is an African-American woman born on July 23, 1946. She is currently a Social Insurance Specialist (Writer), GS-13, in OPI, and she has been employed by the SSA since 1969. (See Am. Complaint for Declaratory and Injunctive Relief and for Money Damages ("Am. Complaint") 2.) Plaintiff suffers from disabilities—cardiac valvular insufficiency, hypertension, and gastroesophageal reflux disorder—which prevent her from engaging in various physical activities. (Pl.'s Mem., Ex. 1 at 46).

Philip A. Gambino—a white male born on March 13, 1953—is the Assistant Deputy Commissioner for OCOMM. (Id., Ex. 1 at 4.) Michelle Brand—a white female born on June 28, 1951—was the Director of ORCICA, where she was Plaintiff's direct supervisor, until March of 2001, when she became the Senior Advisor to the Deputy Commissioner for Communications. (Id., Ex. 1 at 4.) Ms. Brand is no longer employed by the SSA. David Byrd—an African-American male born on June 27, 1959—was the Associate Commissioner of OEA from January 2002 until January 2003. (Id., Ex. 1 at 4.)

In October of 1998, Plaintiff was promoted to the position of Social Insurance Specialist (Team Leader) in the Community Affairs Section of ORCICA (GS-13). (Id., Ex. 1 at 6.) Leading up to 2001, Ms. Brand engaged in a series of discriminatory and harassing actions toward Plaintiff. (See id., Ex. 1 at 42, 54-57.) On October 13, 2000, Plaintiff filed a formal Equal Employment Opportunity ("EEO") complaint. (Id., Ex. 1 at 6.) By January of 2001, Plaintiff and "Ms. Brand had sufficient difficulties that . . . Plaintiff requested reassignment as a reasonable accommodation for her health." (Id., Ex. 3) (Murchison, EEOC Appeal No. 0120064690 (2008) at 3.) Plaintiff requested reassignment to any office within OCOMM except OPI "because OPI is not really considered a part of OCOMM and no one receives any recognition or awards." (Id., Ex. 1 at 19.) Nonetheless, as of March 19, 2001, Plaintiff was reassigned, at the urging of Mr. Gambino, to a PIDC position within OPI. (See Id., Ex. 1 at 23, 25.) At around the same time, Mr. Gambino moved Ms. Brand from her position as Director of ORCICA to the position of Senior Advisor in the office of the Deputy Commission for Communications. (Id., Ex. 1 at 29.)

Because of Ms. Brand's departure, the SSA sought an employee to fill a four month, temporary position as Acting Director of ORCICA. (Id., Ex. 3 at 4.) In April of 2001, Mr. Gambino chose Robin Neal—at the time a Social Insurance Specialist, GS-13, in the Community Affairs Section of ORCICA—to fill the position. (Id., Ex. 3 at 4.) Ms. Neal is a white woman born on June 17, 1950. (Id., Ex. 1 at 5.) Mr. Gambino stated in an affidavit that he chose Ms. Neal because he wanted to hire someone from within ORCICA in order to fill the position "promptly" and "facilitate a smooth and effective transition." (Def.'s Mem. of Law in Support of Def.'s Mot. to Dismiss or, in the Alternative, for Summ. J. ("Def.'s Mem."), Ex. 9 ¶¶ 4-6.).) Furthermore, Mr. Gambino considered Ms. Neal "an outstanding employee who was very competent in the work and operation of ORCICA." (Id., Ex. 9 ¶ 8.)

Plaintiff subsequently filed another formal EEO complaint on June 15, 2001, alleging the SSA discriminated against her based on race, sex, religion, color, disability, age, and retaliation for prior protected activity (filing complaints with the EEO). (Pl.'s Mem., Ex. 3 at 2.)

In August of 2001, the Plaintiff was re-assigned to a new, but still non-supervisory, position as Social Insurance Specialist (Writer), GS-13, in OPI. (See id., Ex. 1 at 31-32.)

In April of 2002, Ms. Neal was again promoted, this time to Public Affairs Specialist (Executive Officer), GS-1035-14, in OEA. (Id., Ex. 1 at 25.) Plaintiff also applied for this position and, with Ms. Neal and eleven other applicants, was placed on the best qualified list. (Id., Ex. 1 at 25.) Plaintiff was one of four applicants who received a maximum score of 100 points, while Ms. Neal received a score of 95 points. (Id., Ex. 1 at 25.) Mr. Byrd testified in the administrative hearing that he chose Ms. Neal for the position because it required a close working relationship with the Associate Commissioner, he had a good working relationship with and trusted Ms. Neal, and he did not know Plaintiff. (Id., Ex. 1 at 25.) In making this decision, Mr. Byrd consulted with Mr. Gambino (who recommended Ms. Neal for the promotion), but did not conduct any interviews of applicants. (Id. at 9-10 (citing id., Ex. 10 at 454-55).) Although the position was advertised as a one-year position, Mr. Byrd later made it permanent. (Id.)

In 2005, an administrative law judge (ALJ) found that some of Plaintiff's allegations of harassment and disparate treatment by her supervisors amounted to unlawful discrimination. Specifically, the ALJ found that the SSA discriminated against Plaintiff, and in some cases retaliated against Plaintiff for her EEO activity, by denying her religious compensatory time, selecting undesirable job assignments for her (including her transfer from ORCICA to OPI), and harassing her via moving her workplace to an annex location and giving her a low evaluation. (Id., Ex. 1 at 41-60.) Additionally, the ALJ found the agency did not discriminate against Plaintiff in failing to promote her to Acting Director of ORCICA. (See id., Ex. 3 at 4-5 (citing id., Ex. 1.).) The ALJ found that Plaintiff failed to make a prima facie case of discrimination because it was "pure speculation" that but for her reassignment out of ORCICA she would have received the promotion. (Id., Ex. 3 at 4 (citing id., Ex. 1).) Finally, the ALJ held that the agency did not discriminate against Plaintiff by failing to promote her to Executive Officer in OEA. (Id., Ex. 3 at 5 (citing id., Ex. 1).) Although Plaintiff made a prima facie showing of discrimination, the ALJ held that the SSA showed a legitimate nondiscriminatory reason for Ms. Neal's promotion to Executive Officer—that Mr. Byrd had experience working with and trusted Ms. Neal—and that Plaintiff failed to rebut this justification.¹ (Id. at 5 (citing id., Ex. 1).)

The ALJ ordered the SSA to (1) return Plaintiff to former position as a Team Leader in ORCICA, (2) credit Plaintiff 2.75 hours of religious compensatory time, (3) conduct EEO training for SSA managers, (4) pay Plaintiff compensatory damages and attorneys' fees and costs, and (5) post a non-discrimination notice. (Id., Ex. 3 at 2.)

On July 14, 2006, the SSA, pursuant to 29 C.F.R. Section 1614.110, adopted the ALJ's findings and agreed to implement the ALJ's remedies. (See id., Ex. 3 at 2.)

Plaintiff was not, however, immediately returned to her former position in ORCICA. The EEOC attributed this delay to the fact that "her complaint was subsumed in a class complaint certified by the EEOC." (Id., Ex. 3 at 1.) However, on February 8, 2007, the SSA sent Plaintiff's counsel a letter stating that it was "prepared to return Plaintiff to her original position as a GS-13 Social Insurance Specialist within the Community Affairs Section." (Reply in Support of Def.'s Mot. to Dismiss or, in the Alternative, For Summ. ("Def.'s Reply"), Ex. 1.) This letter asked whether Plaintiff wanted to return to this position or keep her current position in OPI, and requested a response within five business days or "the SSA will presume that Plaintiff desires to remain in her position in OPI. . . ." (Id., Ex. 1) The letter also implied that, in spite of the ALJ's decision, the SSA did not believe that this "original position" was that of a team leader. (Id., Ex. 1.) Plaintiff's counsel responded by email on February 16, 2008 rejecting the SSA's offer and stating: "the ALJ ordered the agency to return Ms. Murchison to her team leader position or its equivalent. It appears that Ms. Murchison's former team leader position no longer exists. Please provide me a list of the GS 13 and GS 14 team leader positions in headquarters." (Id., Ex. 3 (internal citations omitted).)

Plaintiff appealed the ALJ's decision to the Equal Employment Opportunity Commission's ("EEOC") Office of Federal Operations ("OFO"),² challenging the finding that the SSA did not...