Edelstein v. Berryhill
Filing
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Opinion and Order. For the reasons stated in the order Defendants Motion, Doc #: 27 , is GRANTED, and Plaintiffs Motion, Doc #: 28 , is DENIED. All claims against Berryhill are hereby DISMISSED WITH PREJUDICE. Signed by Judge Dan Aaron Polster on 12/3/2018. (W,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOSEPH EDELSTEIN,
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Plaintiff,
v.
NANCY A. BERRYHILL,
Defendant.
CASE NO. 1:18-CV-00077
JUDGE DAN AARON POLSTER
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.
1
I. FACTS
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
1
The transcript of an August 1, 2013 EEOC hearing indicates that Edelstein was born in
October of 1952. Pl. Mot. (Exhibit 11).
2
“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 complete
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resume, 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 to
2
Edelstein received additional references from a number of ALJs, including one from a
Chief ALJ, as well as references from his past and current hearing office directors. Pl.
Mot. at 9, 10.
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their 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.
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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.
II.
LEGAL STANDARD
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 of law.@ Fed. R. Civ. P.
56 (a). If a reasonable jury could return a verdict for the nonmoving party, however, summary
judgment for the moving party is inappropriate. Baynes v. Cleland, 799 F.3d 600, 606 (6th Cir.
2015). The moving party bears the initial burden of demonstrating that there are no material
facts in dispute, and the evidence submitted must be viewed in the light most favorable to the
nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1962). To avoid summary
judgment, the nonmoving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). A fact is deemed material only if it might affect the outcome of the case under the
governing substantive law. 799 F.3d at 606 (citing Wiley v. United States, 20 F.3d 222, 224 (6th
Cir. 1994), in turn citing Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986)).
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Here, the parties have filed cross-motions for summary judgment. In reviewing crossmotions for summary judgment, courts are to “evaluate each motion on its own merits and view
all facts and inferences in the light most favorable to the non-moving party.” Wiley v. U.S., 20
F.3d 222, 224 (6th Cir. 1994). “The filing of cross-motions for summary judgment does not
necessarily mean that the parties consent to resolution of the case on the existing record or that
the district court is free to treat the case as if it was submitted for final resolution on a stipulated
record.” Taft Broad. Co. v. U.S., 929 F.2d 240, 248 (6th Cir. 1991) (quoting John v. State of La.
(Bd. Of Trustees for State Colleges and Universities), 757 F.2d 698, 705 (5th Cir. 1985)).
Further, the standards upon which courts evaluate motions for summary judgement “do not
change simply because the parties present cross-motions.” Id. (citing Home for Crippled
Children v. Prudential Ins. Co., 590 F.Supp. 1490, 1495 (W.D. Pa. 1984)).
III.
ANALYSIS
A.
Edelstein abandoned his age discrimination claim.
The Supreme Court of the United States has long recognized that the burden is on an
employment-discrimination plaintiff to establish a prima facie case of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972); Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981). In order to establish a prima facie case of age
discrimination, “a plaintiff must show: (1) membership in a protected group; (2) qualification for
the job in question; (3) an adverse employment action; and (4) circumstances that support an
inference of discrimination.” Blizzard v. Marion Technical College, 698 F.3d 275, 283 (6th Cir.
2012) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)). Berryhill argues that the
Court need not consider Edelstein’s age discrimination claim because he failed to address it in
his Opposition Brief to Defendant’s Motion. Def. Op. Br. at 1. The Court agrees.
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“This Court’s jurisprudence on abandonment of claims is clear: a plaintiff is deemed to
have abandoned a claim when a plaintiff fails to address it in response to a motion for summary
judgment.” Brown v. VHS of Michigan, Inc., 545 F. App’x 368, 372 (6th Cir. 2013) (citing
Hicks v. Concorde Career Coll., 449 F. App’x 484, 487 (6th Cir. 2011)) Here, Edelstein did not
make a single reference to the age discrimination claim in his Opposition Brief to Defendant’s
Motion. Accordingly, the Court finds that Edelstein has abandoned his age discrimination claim.
Thus, only Edelstein’s religious discrimination claim is left for the Court to address.
B.
Edelstein has failed to establish a prima facie case of religious
discrimination.
To establish a prima facie case of religious discrimination under Title VII, the plaintiff
must show that he (1) was a member of a protected class, (2) was denied a promotion, (3) was
qualified for the position, and (4) was passed over in favor of someone outside of the protected
class. See Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009) (applying the U.S. Supreme
Court’s McDonnell Douglas test) (citing Allen v. Highlands Hosp. Corp., 545 F.3d 387, 394 (6th
Cir. 2008)); see also Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). “If the
plaintiff is able to present a prima facie case, the burden then shifts to the defendant to articulate
a legitimate, nondiscriminatory reason for the adverse employment action.” Tepper v. Potter,
505 F.3d 508, 515 (6th Cir. 2007) (citing McDonnell Douglas, 411 U.S. at 802)). Then, “if the
defendant meets this burden, the burden then shifts back to the plaintiff who must show that the
defendant’s proffered reason is a pretext for discrimination.” Id. at 515-16.
Contrary to Berryhill’s argument, the Court finds that Edelstein has adequately shown
that he was a member of a protected class (Jewish), was denied a promotion, and was qualified
for the position. Contrary to Edelstein’s position, the Court finds that he has failed to show that
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he was passed over in favor of someone outside the protected class, the fourth prong of the prima
facie case.3
Edelstein asserts that Goldstein, although also Jewish, is dissimilar from him because
Goldstein does not practice the Orthodox Jewish faith. Def. Mot. at 5. However, Edelstein has
failed to provide any evidence of Goldstein’s religion or religious practices apart from his bare
assertion that Goldstein “is Jewish, but not Orthodox Jewish.” Id. Edelstein did not bother to
depose Goldstein and failed to submit an affidavit from Goldstein showing his religious
affiliation or practices. More importantly, Edelstein failed to show that ALJ Bede, the selecting
ALJ, had any knowledge of Goldstein’s religious affiliation or practices. Edelstein Dep. at 8,
70-71.
Edelstein contends that ALJs Hatfield and Dabreu, who interviewed him at the beginning
of the application process, discriminated against him based on his religion because of their
repeated references to money – reflecting an ancient and derogatory stereotype of Jews and antiSemitism. The problem with this argument is twofold. First, it is Edelstein who raised the
subject of income when asked why he was interested the ALJ position, stating that he had a wife
and five children to support and could use the additional income. Thus, he cannot blame the
ALJs for mentioning it in their evaluation. Second, the derogatory stereotype of Jews as overly
materialistic is a generalized stereotype that applies to all Jews, not just Orthodox Jews. In any
event, Edelstein admits that his interview was terrible, and the interview was not the sole basis
for ALJ Bede’s hiring decision and neither ALJ Hatfield nor ALJ Dabreu was the selecting
official.
3
Edelstein does not argue that Shinn and Mackowiak were chosen over him based on
religion.
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Even if Edelstein could establish a prima facie case of discrimination, he bears the
ultimate burden of persuading the Court that the defendant intentionally discriminated against
him. Storrs v. University of Cincinnati, 271 F.Supp.3d 910, 927-28 (S.D. Ohio 2017) (citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)). He may accomplish this
by introducing direct evidence showing that in treating him adversely, ALJ Bede was motivated
by discriminatory intent, or by introducing circumstantial evidence that supports an inference of
discrimination. Id. (citing Logan v. Denny’s Inc., 259 F.3d 558, 566-67 (6th Cir. 2001).
Here, Edelstein is his own worst witness. He argues that the real reason ALJ Bede
selected Goldstein over him was not based on his religion, but in response to the union reprisal
grievance Goldstein filed against the SSA when ALJ Bede rejected Goldstein’s third application
for the Akron ALJ position. Pl. Opp’n at 5. According to Edelstein, the SSA had already
appointed two other union officers to ALJ positions in Akron and sought to emasculate the union
by making its officers ALJs.
The [SSA], especially for Commissioner Glen Sklar, saw the grievance as a way
of beheading the Union. Mr., James Hill, president of the NTEU, was hired as an
ALJ. Barbara Sheehe, treasurer of the NTEU, was hired as an ALJ. The hiring of
Goldstein would be a trifecta and essentially bust the union. Goldstein was hired.
All three union officers, Hill. Sheehe and Goldstein, ended up in the same office
(Akron). This does not appear coincidental. The top officers of the unions were
now ALJs. The union has become a shadow of its former self.
Id. As if to punctuate the lack of discriminatory animus based on Edelstein’s religion or age, he
states, “Goldstein is older than I. He is Jewish, but not Orthodox Jewish. However, none of
these factors is relevant. Goldstein was going to be hired no matter what his faith and no matter
what his age.” Pl. Opp’n at 4 (emphases in original). Because Edelstein admits that neither age
nor religion was relevant to the decision to hire Goldstein, he has failed to meet his ultimate
burden of showing that the decision not to hire him was motivated by his religion or his age.
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III.
CONCLUSION
Although Edelstein was certainly qualified to be elevated to the position of ALJ, he
cannot show that the decision not to promote him was based on his religion or age. Accordingly,
Defendant’s Motion, Doc #: 27, is GRANTED, and Plaintiff’s Motion, Doc #: 28, is DENIED.
All claims against Berryhill are hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
/s/ Dan A. Polster December 3, 2018
Dan Aaron Polster
United States District Judge
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