Branham v. Astrue

Filing 28

ORDER granting 24 Motion for Summary Judgment. Ordered by Judge Hugh Lawson on 1/28/2010. (nbp)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA V AL D O S T A DIVISION W IL L IAM A. BRANHAM, : : P la in t if f , : : v. : : M IC H AE L J. ASTRUE, : C o m m is s io n e r , Social Security : A g e n c y, : : D e fe n d a n t. : _______________________________ :

C ivil Action No. 7 : 0 8 -C V -1 2 3 (H L )

ORDER
B e fo re the Court is Defendant's Motion for Summary Judgment (Doc. 24). Plaintiff filed a response titled "Joint Motion to Dismiss" (Doc. 26). For the following re a s o n s , Defendant's Motion is granted. I. PROCEDURAL AND FACTUAL BACKGROUND 1 O n January 3, 2005, Plaintiff, a male veteran, applied for a claims re p re s e n ta tive position with the Social Security Administration ("SSA"). (Def. Ex. 3).2

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The Court views the facts in the light most favorable to Plaintiff, the nonmoving

party. Many of Defendant's exhibits, including Exhibits 2, 3, 4, 11, 12, 13, and 14 have not been properly made a part of a deposition or affidavit. They have not been authenticated and there is no way of knowing that they are what they purport to be. Thus, they are inadmissible material on summary judgment. The Court nevertheless considers them because Plaintiff has not objected to their admission. See Davis v. Howard, 561 F.2d 565, 569-570 (5th Cir. 1977) (explaining that where material is inadmissible and yet unchallenged, the court can consider the material on summary judgment).
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The opening was for a position in the SSA's Valdosta, Georgia office. (Def. Ex. 2). Plaintiff submitted his application after viewing an advertisement for the position on th e website www.usajobs.com. (Def. Ex. 6). The advertisement stated that the position was available for veterans and all In te ra g e n c y Career Transition Assistance Plan ("ICTAP") eligibles located in the c o m m u tin g area. (Def. Ex. 2). The ICTAP plan provides displaced federal

e m p lo ye e s priority selection for available federal jobs during periods of federal d o w n s iz in g . (Ex. 4). Under the plan, veterans do not have priority selection, but if n o ICTAP eligible applies for a position, then the plan allows a government agency to fill a position by normal hiring procedures. (Def. Ex. 4). Plaintiff was never a fe d e ra l employee or a displaced employee, but he was a veteran with a ten-point p re fe re n c e . (Ex. 3). The advertisement on www.usajobs.com said that applicants were to send the re q u ire d application materials to the SSA's Center for Human Resources ("CHR") lo c a te d in Atlanta, Georgia. (Def. Ex. 2). Plaintiff, however, submitted his

a p p lic a tio n by hand-delivering it to the receptionist at the SSA's Valdosta office. (Def. Ex. 6). (Def. Ex. 3). L in d a Rineer ("Rineer"), branch manager at the SSA's Valdosta office, was re s p o n s ib le for filling the claims representative position. (Rineer Supp. Aff. ¶ 1). She stated that she considers applicants from multiple sources when making hiring 2 His application did not indicate his race or that he had a disability.

decisions. She receives applications through the Federal Career Intern Program, O u ts ta n d in g Scholar Program, Direct Hire Authority, and www.usajobs.com. (Def. E x. 6). Rineer did not know Plaintiff had submitted an application for the claims re p re s e n ta tiv e position until after she had hired someone else for the position. (Def. E x. 6). Moreover, she was unaware that the claims representative position was

p o s te d on www.usajobs.com. (Rineer Supp. Aff. ¶ 10). On January 25, 2005, she h ire d Carlos Coleman, a black, 28 year-old male with bachelor's and master's d e g re e s . (Rineer Supp. Aff. ¶ 6; Def. Ex. 11). She became aware of Plaintiff's a p p lic a tio n on February 16, 2005, after someone from the SSA's CHR, wrote her a s k in g whether the Valdosta office had his application. (Rineer Supp. Aff.¶ 4). She fo u n d Plaintiff's application in a file in her office. (Rineer Supp. Aff. ¶ 4). Even though she filled the claims representative position on January 25, 2005, C H R sent Rineer the names of the total applicants eligible for the position on March 7 , 2005. (Rineer Supp. Aff. ¶ 5). No ICTAP eligible workers appeared on the list. Plaintiff's name was the only name that appeared. (Rineer Supp. Aff. ¶ 5). She re vie w e d and considered Plaintiff's application at that time, but she had no va c a n c ie s to fill. (Def. Ex. 6). On April 4, 2005, Jan Foushee, Director of the SSA's CHR, wrote Plaintiff in fo rm in g him that he had not been hired even though he qualified for the claims re p re s e n ta tiv e position. (Def. Ex. 12). In a letter dated January 3, 2005, before he 3

had been told that he had not been hired for the position, Plaintiff wrote Mark A n d e rs o n , Associate Commissioner of the Office of Civil Rights and Equal O p p o rtu n ity . (Def. Ex. 13). Plaintiff stated that he had been denied the claims re p re s e n ta tiv e position, even though he was a veteran and qualified for the position. He also wrote that he had been denied veteran disability benefits. (Def. Ex. 13). P la in tiff filed a complaint with the Equal Employment Opportunity ("EEO") o ffic e . On June 19, 2008, the EEO Commission affirmed its lower agency decision th a t found Plaintiff failed to establish a prima facie case of discrimination based on a g e , race, sex, and disability. E.E.O.C. v. Michael J. Astrue, Comm'r, Soc. Sec. A d m in ., No. 0120071185, 2008 W L 2571321 (E.E.O.C. June 19, 2008). On

S e p te m b e r 19, 2008, Plaintiff, proceeding pro se, filed his complaint in this Court (D o c . 1) against Defendant, alleging violations of Title VII, 42 U.S.C. § 1981, the A m e r ic a n s with Disabilities Act ("ADA"), the Age Discrimination Employment Act ("A D E A "), and the Rehabilitation Act. Defendant filed a Motion for More Definite

S ta te m e n t (Doc. 6), which the Court granted because Plaintiff's complaint was too va g u e and ambiguous to allow Defendant to file an answer. Plaintiff had until May 1 3 , 2009, to file an amended complaint that set forth the statutes he contended D e fe n d a n t violated, how the statutes were violated, and the relief that Plaintiff re q u e s te d . Plaintiff did not file an amended complaint. Now before the Court is Defendant's Motion for Summary Judgment. The C o u rt chooses not to dismiss Plaintiff's complaint for failure to obey the Court's order 4

requiring him to file an amended complaint.3 The Court chooses to instead grant D e fe n d a n t's Motion for Summary Judgment. II. DISCUSSION A. P la in tiff's Response Titled "Joint Motion to Dismiss"

P la in tiff's response to Defendant's Motion for Summary Judgment does not a d d re s s his claims for discrimination that are before the Court, instead it addresses P la in tiff's claim for disability benefits before the United States Department of V e te ra n s Affairs. Plaintiff also did not file affidavits or other material in his response, n o r did he file a separate and concise statement of material facts as required by L o c a l Rule 56. T h e Court explained to Plaintiff in an order (Doc. 25) dated April 28, 2009, the s u m m a ry judgment standard and warned him that final judgment may be rendered a g a in s t him if he failed to file any affidavits or other material in opposition to D e fe n d a n t's Motion for Summary Judgment. Even with the Court's warning, Plaintiff d id not file affidavits or other material relevant to his discrimination claims. W ith this b a c k d ro p in mind, the Court now decides whether Defendant has satisfied his s u m m a ry judgment burden. B. T h e Summary Judgment Standard

Summary judgment must be granted if "the pleadings, the discovery and

Defendant did not file a motion to dismiss after Plaintiff failed to file an amended complaint. 5

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disclosure materials on file, and any affidavits show that there is no genuine issue a s to any material facts and that the movant is entitled to judgment as a matter of la w . Fed. R. Civ. P. 56(c). In ruling on a defendant's motion for summary judgment, th e court takes the facts in the light most favorable to the plaintiff. Stanley v. City of D a lto n , 219 F.3d 1280, 1287 (11th Cir. 2000). The court may not, however, make c re d ib ility determinations or weigh the evidence. Anderson v. Liberty Lobby, Inc., 4 7 7 U.S. 242, 255, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). The initial burden lies on the movant to demonstrate that the nonmovant lacks e vid e n c e to support an essential element of its claim. Lowe v. Aldridge, 958 F.2d 1 5 6 5 , 1569 (11th Cir. 1992). The movant must identify "those portions of the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, which it believes demonstrate the absence of a genuine is s u e of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 9 1 L.Ed.2d 265 (1986) (internal quotation marks omitted). If the moving party meets his burden, then the burden shifts to the nonmovant, w h o must come forward with some evidence that would allow a jury to find in his fa vo r, even if the parties dispute that evidence. Lowe, 958 F.2d at 1569. If the e vid e n c e that the nonmovant presents, however, is "not significantly probative" or "m e re ly colorable," then summary judgment may be granted. Liberty Lobby, 477 U .S . at 249.

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C.

Plaintiff's ADA Claim

Plaintiff's disability discrimination claim is not cognizable under the ADA because the ADA exempts the United States from its definition of employer. 42 U .S .C . § 12111(5)(B). P la in tiff's ADA claim. D. P la in tiff's Title VII Claim Accordingly, Defendant is granted summary judgment on

Title VII prohibits an employer from "discriminat[ing] against any individual with re s p e c t to his compensation, terms, conditions, or privileges of employment, b e c a u s e of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). It appears from his complaint that Plaintiff is claiming that the SSA vio la te d Title VII by discriminating against him on the basis of his race and sex. A s the United States Court of Appeals for the Eleventh Circuit has explained, "[t]h e re are two types of discrimination actionable under Title VII, disparate treatment a n d disparate impact." Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1312 (11th C ir.1 9 9 9 ). A disparate treatment suit is one in which an employee alleges that the e m p lo ye r "treats some people less favorably than others because of their race, color, re lig io n , sex, or national origin." Int'l Bhd. of Teamsters v. United States, 431 U.S. 3 2 4 , 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). Here, Plaintiff a lle g e s he was treated less favorably than other applicants at the SSA with regard to hiring. A plaintiff in a Title VII discrimination action bears the ultimate burden of 7

proving that race or sex was a determining factor in the challenged employment d e c is io n . A Title VII plaintiff may attempt to show this discrimination through either d ire c t or circumstantial evidence. Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th C ir .1 9 9 9 ) . Plaintiff has produced no direct evidence of discrimination. He must therefore e s ta b lis h his race and sex discrimination claim by relying on the framework e s ta b lis h e d by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 7 9 2 , 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To make out a prima facie case

d is c rim in a tio n in a failure-to-hire case using circumstantial evidence, a plaintiff must d e m o n s tra te : (1) he belongs to a protected class; (2) he applied and was qualified fo r a position for which the employer was accepting applications; (3) even though he w a s qualified for the position, he was not hired; and (4) the position remained open o r was filled by another person outside of his protected class. E.E.O.C. v. Joe's S to n e Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002). If he establishes a prima facie case, then the burden of production shifts to the d e fe n d a n t to articulate a nondiscriminatory reason for its decision. After an

e m p lo ye r articulates a legitimate, non-discriminatory reason, the plaintiff, to survive a motion for summary judgment, must show that the proffered reason was pretext fo r discrimination. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56, 1 0 1 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). A plaintiff may show pretext by either directly persuading the court that a 8

discriminatory reason motivated the employer, or by indirectly showing that the e m p lo ye r's given explanation is unworthy of credence. Id. at 256. D e fe n d a n t argues that Plaintiff has produced no evidence of a prima facie c a s e of discrimination. Rather, the undisputed evidence shows, according to

D e fe n d a n t, that Rineer was unaware that Plaintiff had applied for the position when s h e made the decision to hire Carlos Coleman. As a result, it was impossible for her to discriminate against Plaintiff. The Court finds that Plaintiff fails to make out the fourth prong of a prima facie c a s e of discrimination under Title VII. Carlos Coleman was of the same race and s e x as him; thus, the position was not filled by someone outside his protected class. Summary judgment is granted to Defendant on Plaintiff's Title VII claims. E. P la in tiff's Claim Under the ADEA and the Rehabilitation Act

In addition to his race and sex claims, Plaintiff alleges that Defendant's d e c is io n to hire Carlos Coleman, a 28 year-old man, violated his rights under the A D E A . The ADEA makes it unlawful for an employer to, among other things, fail or r e f u s e to hire or "otherwise discriminate against any individual with respect to his c o m p e n s a tio n , terms, conditions, or privileges of employment, because of such in d ivid u a l's age." 29 U.S.C.A. § 623(a)(1). Discrimination claims brought under the A D E A are governed by an evidentiary framework similar to that which governs c la im s brought under Title VII. MacPherson v. Univ. of Montevallo, 922 F.2d 766, 7 7 4 (11th Cir.1991). 9

Plaintiff also alleges that Defendant violated the Rehabilitation Act by failing to hire him because of his disability. The Rehabilitation Act prohibits federal

a g e n c ie s from discriminating against a person with a disability solely by reason of h is disability. 29 U.S.C. § 794(a). Claims brought under the Rehabilitation Act for d is c rim in a tio n are governed by the same standards as claims brought under the A D A . Holbrook v. City of Alpharetta, 112 F.3d 1522, 1526 n. 2 (11th Cir. 1997). ADA disability discrimination claims are analyzed under the burden evidentiary fra m e w o rk that applies to Title VII discrimination claims. Durley v. APAC, Inc., 236 F .3 d 651, 657 (11th Cir. 2000). Thus, the same Title VII burden-shifting framework a p p lie s to Rehabilitation Act claims. Defendant argues it is entitled to summary judgment on Plaintiff's age and d is a b ility claims because the evidence is undisputed that Rineer did not review the P la in tiff's application, and Rineer did not meet Plaintiff before she hired Carlos C o le m a n for the position; thus, it was impossible for her to discriminate against P la in tiff on the basis of his age or disability. The Court assumes arguendo that Plaintiff has established a prima facie case o f age and disability discrimination. Even with an assumed prima facie case

s h o w in g , Defendant is entitled to summary judgment on these claims. Plaintiff has fa ile d to show that Defendant's reason for not hiring him was pretextual. Defendant's proferred nondiscriminatory reason for failing to hire Plaintiff was that it was unaware that Plaintiff had applied for the position before it made its hiring 10

decision. Missing necessary paperwork, bureaucratic mistakes, and violations of h ir in g procedures are all sufficient, legitimate non-discriminatory reasons to justify n o t hiring an applicant. Schoenfeld, 168 F.3d at 1269. Plaintiff has not presented a n y evidence to rebut Defendant's reason, nor can the Court find any evidence in th e record that controverts Defendant's legitimate non-discriminatory reason. Indeed, the fact that Plaintiff failed to follow proper application procedure supports th e inference that Rineer had not read Plaintiff's application or seen Plaintiff before s h e hired Carlos Coleman. Defendant is accordingly entitled to summary judgment o n Plaintiff's ADEA and Rehabilitation Act claims. F. Plaintiff's 42 U.S.C. § 1981 Claim

S e c tio n 1981 provides relief for claims against state actors, "but does not p r o v id e a cause of action for discrimination under color of federal law." Lee v. H u g h e s , 145 F.3d 1272, 1277 (11th Cir. 1998). Because Plaintiff is suing a federal a g e n c y, he cannot bring a claim against it pursuant to 42 U.S.C. § 1981. The Court g ra n ts Defendant summary judgment on this claim. G. P la in tiff's Claim for Veteran's Preference

It appears, although he refers to no statute, that Plaintiff has also brought a c la im against Defendant for failing to hire him based on his 10-point veteran p re fe re n c e . Defendant argues that it is entitled to summary judgment on this claim b e c a u s e Plaintiff did not file a complaint with the Secretary of Labor prior to bringing h is veteran's claim in this court. The Court agrees. 11

Any person who has veteran preference and believes that an agency has vio la te d his rights under a statute or regulation relating to veterans' preference may file a complaint with the Secretary of Labor. 5 U.S.C.§ 3330a(a)(1)(a). Then, the p e rs o n may file a complaint in the district court after he has appealed the Secretary o f Labor's decision to the Merit Systems Protection Board ("MSPB"). 5 U.S.C. § 3 3 3 0 b (a )-(b ). Even assuming that Plaintiff has a cognizable cause of action under a veteran s ta tu t e , there is no indication in the record that he filed a complaint with the S e c re ta ry of Labor or that the MSPB reviewed his claim. Because he did not e xh aust these required administrative procedures, Plaintiff cannot pursue his veteran c la im in this Court. Finally, although not addressed by either party, the Court finds that this case is not a mixed case that would allow the Court to review Plaintiff's veteran claim e ve n though he failed to file a claim with the Secretary of Labor. In a mixed case, a person may file a complaint with the MSPB or with the agency's EEO office. 29 C .F .R . § 1614.302(b). A mixed case is one in which the federal employee suffered a n adverse agency action because of his "race, color, religion, sex, national origin, h a n d ic a p or age." 29 C.F.R. § 1614.302(a)(2). Actions that constitute adverse a g e n c y actions are enumerated in 5 U.S.C. § 7512(1)-(5) and 5 C.F.R. § 1201.3(a)(c ). The application for federal employment does not constitute an adverse agency a c tio n as defined in 5 U.S.C. § 7512(1)-(5) and 5 C.F.R. § 1201.3(a)-(c). 12 Thus,

Plaintiff did not have the option of filing his veteran claim before the SSA's EEO o ffic e . He was required to file a complaint with the Secretary of Labor. Because he fa ile d to do so, the Court grants summary judgment to Defendant on Plaintiff's ve te ra n claim. III. CONCLUSION For the explained reasons, Defendant's Motion for Summary Judgment is g r a n te d . SO ORDERED, this the 28 th day of January, 2010. s / Hugh Lawson HUGH LAWSON, SENIOR JUDGE lm c

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