Poer v. Astrue

• Decision Date: 27 May 2010
• Docket Number: No. 09-3473.,09-3473.
• Citation: 606 F.3d 433
• Parties: Darrell POER, Plaintiff-Appellant,v.Michael J. ASTRUE, Commissioner of Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

606 F.3d 433

Darrell POER, Plaintiff-Appellant,v.Michael J. ASTRUE, Commissioner of Social Security Administration, Defendant-Appellee.

No. 09-3473.

United States Court of Appeals Seventh Circuit.

Argued Feb. 10, 2010.

Decided May 27, 2010.

Neal F. Eggeson, Jr., Attorney, Eggeson Appellate Services, Indianapolis, IN, for Plaintiff-Appellant.

Debra G. Richards, Attorney, Office of the United States Attorney, Indianapolis, IN, for Defendant-Appellee.

Before RIPPLE, MANION and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

Darrell Poer brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against his employer, the Social Security Administration (“SSA” or “Administration”). He alleged that the Administration failed to promote him because he had engaged in protected activity, specifically he had testified on behalf of two other employees. The district court granted summary judgment to the Administration. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

IBACKGROUND

A. Facts ¹

1.

Mr. Poer's claim concerns the filling of a GS-13 Supervisor Attorney-Adviser position in the SSA's Office of Disability Adjudication and Review (“ODAR”) located in Indianapolis, Indiana. Because the procedure for filling a position at this level is convoluted and also bears upon Mr. Poer's claim, we set it forth in some detail.

The Regional Chief Administrative Law Judge is the selecting official for GS-13 attorney positions. At the relevant time, Paul C. Lillios was the Regional Chief Administrative Law Judge for Region V, which encompasses Indiana, Illinois, Wisconsin, Michigan, Ohio and Minnesota. It was Judge Lillios's practice to seek the recommendation of the Hearing Office Chief Administrative Law Judges regarding the selection of GS-13 senior attorneys. Administrative Law Judge Blanca de la Torre acted as the SSA's Hearing Office Chief Administrative Law Judge in Indianapolis. In this capacity, it was Judge de la Torre's responsibility to determine the organizational structure, staffing needs and composition of staff at the Indianapolis office.

Before an area ODAR office within Region V was allowed to announce an open position, it had to request authority to fill the position from the Region V office. In 2005, Frank McGinley, ODAR's Region V Regional Management Officer, was responsible for reviewing and approving such requests. If the request were approved, it would be sent to the Human Resources Specialist, a position that was held by Addie Price.

Price then would prepare the vacancy announcement, collect the applications and create a “well-qualified certificate,” ² which listed the applicants that had been determined to have the best qualifications for the vacant position. Price also was responsible for compiling the certificate package, which included the well-qualified certificate and the applications of the individuals who were listed on the certificate. “When the number of candidates listed on the certificate did not provide a sufficient field of candidates from which to choose, it was a common and longstanding practice of Region V ODAR to cancel the announcement for lack of a sufficient field of candidates.” R.43, Ex. 3 ¶ 10. According to McGinley, “it was desirable to have at least three viable candidates to choose from because this help[ed] to ensure that the best possible selection [wa]s made.” Id.

Price would forward the compiled package to Mary Jo Awbrey, who was responsible for personnel actions in McGinley's office. Upon receipt of the certificate package, Awbrey would report to McGinley that the certificate package had arrived and then send it to the ODAR's Hearing Office Chief Administrative Law Judge.

If the Hearing Office Chief Administrative Law Judge selected an individual for a GS-13 attorney position, she would sign the well-qualified certificate, indicate the choice and return the certificate to Region V headquarters in Chicago. At that point, McGinley would review the choice with Judge Lillios. If Judge Lillios agreed with the recommendation, he would sign the well-qualified certificate as the selecting official. Awbrey then would send the certificate package to Price to implement the personnel action.

2.

Since 1990, Mr. Poer has worked as an Attorney Adviser for the ODAR in Indianapolis. In 2003, Mr. Poer testified on behalf of two female African-American employees who had filed suit against Allen Kearns; Kearns was the Hearing Office Director and Mr. Poer's second level supervisor.³ Following Mr. Poer's testimony, both Mr. Poer and Kearns remained employed at the SSA. Mr. Poer admits that, for the two years following his testimony, he suffered no retaliation at the hand of Kearns or anyone else at the Administration.

In 2005, Daniel Mages was reassigned from his position as a GS-13 Senior Attorney-Adviser to a GS-13 Supervisory Attorney-Adviser within the Indianapolis office; this reassignment resulted in the opening of a GS-13 Senior Attorney-Adviser position. In October 2005, at the direction of Judge de la Torre, Kearns requested and received authority to announce an open GS-13 Senior Attorney-Adviser position.

On November 14, 2005, the SSA posted the job opening, which was advertised throughout Region V. Price was responsible for drafting and posting the announcement. The announcement provided that travel and relocation expenses would be authorized in accordance with applicable regulations. Mr. Poer applied for the position.

After receiving the applications, Price assembled the well-qualified certificate, which listed the final candidates from whom a selection would be made. This certificate included Mr. Poer and two other individuals, one from Illinois and one from Iowa. Illinois is in Region V; Iowa is not. The certificate was sent to Kearns and was valid from December 16, 2005, the date on which it was generated, through March 16, 2006.

At the time the certificate was issued, the SSA was under severe budgetary restrictions. A temporary hiring freeze was implemented in January 2006, which “meant that no new hires could be made and that no full time equivalents (FTE's) could be brought in from another region.” Id. ¶ 19. Additionally, relocation expenses for any candidates had to be approved through ODAR Headquarters in Falls Church, Virginia. Because of the fiscal limitations at the time, “such requests were to be made only for positions that were urgent and critical to the mission of the office where the positions [we]re located” ; senior attorney positions were not considered “urgent and critical.” Id. ¶ 21. McGinley explained that, “[g]iven the budgetary constraints, I would not have even asked Headquarters for relocation expenses for the Indianapolis senior attorney position because I knew that my request would have been denied.” Id.

Judge de La Torre stated that, during this time, she participated in regular conference calls with Judge Lillios and McGinley. During these calls, the Hearing Office Chief ALJs were apprised of the SSA's severe budget limitations and of the “various budgetary concerns stemming from that situation, including a hiring freeze, and restrictions in relocation allocations and full-time equivalent (‘FTE’) positions.” R.43, Ex. 4 ¶ 5.

Judge de la Torre recalled that, upon receiving the certificate, Kearns informed her that “there were three candidates on the list”; she “understood,” incorrectly, “that two candidates were from outside our region, and the third candidate was [Mr. Poer], who [wa]s assigned to the Indianapolis Office.” R.43, Ex. 5 ¶ 6. Sometime in January, Kearns met with Judge de la Torre to discuss the candidates and the open position. Judge de la Torre believed that relocation expenses would not be approved for any candidate, and, therefore, she could not consider the candidates who would have to relocate to Indianapolis; this eliminated everyone but Mr. Poer from consideration. Judge de la Torre believed, however, that she “should be able to select a candidate based on merit and not by virtue of elimination.” Id. ¶ 8. This practice, she believed, was “consistent with [her] training and experience as a manager within the SSA. In the past, the agency ha[d] returned certificates and reannounced positions when the certificates did not contain a sufficiently wide field of candidates.” R.43, Ex. 4 ¶ 11.⁴

On March 16, 2006, the certificate expired without any individual being hired. In April 2006, Kearns received a call inquiring about the location of the certificate. He subsequently signed and returned it, writing “No selection made-no FTEs available.” R.43, Ex. 8, Attach. 2.

Shortly after this, Kearns met with Mr. Poer. In this conversation, Kearns represented himself as the selecting official and stated that “I couldn't get FTEs ... for the other two people and that left you on the list and I couldn't select you because that wouldn't be meritorious.” R.43, Ex. 11 ¶ 4.

Several months later, Kearns informed Judge de la Torre that Mages was “contemplating stepping down from his position as a Group Supervisor and had expressed an interest in being re-assigned to the Senior Attorney-Adviser position.” R.43, Ex. 4 ¶ 14. Mages subsequently was reassigned to the Senior Attorney-Adviser position in September 2006.

B. District Court Proceedings

After exhausting his administrative remedies, Mr. Poer instituted this action in which he claimed that the SSA had failed to promote him to the open Senior Attorney-Adviser position in retaliation for his prior testimony against Kearns. In response to the SSA's motion for summary judgment, Mr. Poer argued that there was sufficient circumstantial evidence from which a jury could conclude that Kearns's discriminatory animus infected the promotion process. The district court disagreed.

The court first noted that Mr. Poer had “concede[d] that there is no evidence that any of the named SSA decisionmakers-Hearing Office Chief ALJ de la Torre,...