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Woodward v. Social Security Administration

United States District Court, D. New Mexico

June 29, 2018

SAMUEL WOODWARD, Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION, Defendant.

          PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on three dispositive Motions filed by Defendant.

         The Court considers Defendant's Motion to Dismiss Plaintiff's Claims for Violation of his Weingarten Rights (Count VI and for Violation of the 14th Amendment (Count VII), filed January 12, 2018. Plaintiff did not respond to this Motion, and the time within which he was permitted to do so has expired.

         The Court also considers Defendant's First Motion for Summary Judgment on Plaintiff's Claims for Race Discrimination (Count I), filed on January 12, 2018 (Doc. 49), as to which Plaintiff filed Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment on February 22, 2018 (Doc. 55); and as to which Defendant filed Defendant's Reply to Her First Motion for Summary Judgment on Plaintiff's Claims for Race Discrimination (Count I) on March 8, 2018 (Doc. 58).

         Finally, the Court considers Defendant's Provisional Second Motion for Summary Judgment on Plaintiff's Claims for Retaliation (Count III), Gender Discrimination (Count IV) and Hostile Work Environment (Count II/Harassment (Count V), filed January 16, 2018 (Doc. 52), as to which Plaintiff filed Plaintiff's Response in Opposition to Defendant's Second Motion for Summary Judgment on Plaintiff's Claims for Retaliation (Count III), Gender Discrimination (Count IV) and Hostile Work Environment (Count II/Harassment (Count V), on February 28, 2018 (Doc. 57); and as to which Defendant filed Defendant's Reply to Her Second Motion for Summary Judgment on Plaintiff's Claims for Retaliation (Count III), Gender Discrimination (Count IV) and Hostile Work Environment (Count II/Harassment (Count V) on March 14, 2018 (Doc. 59).

         The undersigned, [1] having considered the parties' submissions, the record, and the relevant law, finds that each of Defendant's Motions are well taken, and recommends that they be GRANTED.

         I. General Background and Procedural History

         This lawsuit arises out of Plaintiff Samuel Woodward's employment with the Social Security Administration (Defendant). During the relevant time frame, Plaintiff was employed by Defendant at the Social Security Administration National Hearing Center in Albuquerque, New Mexico (“the Agency”). (Doc. 37 at 1-9.) Plaintiff, who is a Hispanic male, brings this lawsuit in an attempt to recover damages incurred as a result of Defendant's alleged race-based and gender-based discriminatory animus toward him which, Plaintiff alleges, manifested in a number of unlawful employment actions. (Doc. 49-1 at 2; Doc. 49 at 2; Doc. 55 at 2.)

         Plaintiff's Amended Complaint for Damages From Violations of Title VII, Racial Discrimination, Hostile Work Environment, Retaliation, Gender Discrimination, Harassment, 42 U.S.C. § 1983 Weingarten, Due Process (hereafter “Complaint”) comprises seven substantive claims. In Count I (Racial Discrimination Violations of Title VII), Plaintiff claims that because he is Hispanic and “brown-skinned in color” he was subjected to disparate treatment as demonstrated by the fact that he was given an official letter of reprimand while white employees who did similar acts were provided “warnings and cautions.” (Doc. 37 at 9-10.)

         In Count II (Hostile Work Environment Violations of Title VII), Plaintiff claims that Defendant (through the Agency's Chief Judge and its Administrative officer) discriminated against him by “surrounding him with severe offensive conduct, comments and postings” about Social Security Claimants, which caused Plaintiff to feel humiliated, embarrassed, and ashamed. (Doc. 37 at 7-8, 10.)

         In Count III (Retaliation Violations of Title VII), Plaintiff claims that Defendant retaliated against him for filing an EEOC complaint. (Doc. 37 at 10-11.)

         In Count IV (Gender Discrimination Violations of Title VII) Plaintiff claims that female employees were chosen for promotions, bonuses and extra volunteer duties, and that he was not given such opportunities as would have been commensurate with his qualifications and experience. (Doc. 37 at 10-11.)

         In Count V (Harassment Violations of Title VII), Plaintiff claims that Defendant, driven by gender-based animus, created a work environment that was intimidating, hostile, or abusive by virtue of “offensive jokes, slurs, epithets or name calling, ridicule or mockery, insults or putdowns, offensive objects or pictures, and interference with work performance. (Doc. 37 at 12.)

         In Count VI (Weingarten Rights Weingarten Rules for Public Employees NLRB v. Weingarten M.G.L. c. 150E) Plaintiff seeks to recover damages on the ground that Defendant “admitted” on several occasions that Plaintiff was not being investigated or subjected to any form of disciplinary action” yet he received a letter of reprimand “contrary to 150E.” (Doc. 37 at 12-13.)

         Finally, in Count VII (Violations of Due Process Protection Under the 14th Amendment 42 U.S.C. § 1983), Defendant claims that he was subjected to disciplinary action without cause and deprived of due process. (Doc. 37 at 13-14.)

         In three separate Motions, Defendant variously seeks dismissal or summary judgment in its favor as to each Count of the Complaint. Beginning with Defendant's Motion to Dismiss, the Court addresses each Motion in turn. Additional facts are provided as necessary in the body of this Opinion.

         II. Defendant's Motion to Dismiss Count VI and Count VII Should Be Granted

         Count VI of Plaintiff's Complaint is brought pursuant to two authorities: N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975) and “M.G.L. c. 150E.” (Doc. 37 at 12.) The former is a Supreme Court case that stands for the proposition that union employees have the right to union representation in investigatory interviews that the employee reasonably believes may result in disciplinary action against them. Weingarten, 420 U.S. at 267. The latter is an ostensible reference to the Massachusetts General Laws, governing “collective bargaining agreements; term; appropriation requests; provisions; legal conflicts, priority of agreement; review of agreement by retirement board.” Mass. Gen. Laws ch. 150E § 7 (2014). Count VII of Plaintiff's Complaint is brought pursuant to the 14th Amendment to the Constitution, which prohibits any State from depriving any person of life, liberty, or property without due process of law, and 42 U.S.C. Section 1983, which provides a cause of action for those who have been deprived of Federal Constitutional Rights by persons acting under color of state law.

         Defendant argues that Count VI and Count VII should be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction because Title VII is the exclusive judicial remedy available to Plaintiff. (Doc. 50.) Plaintiff, having failed to file and serve a response in opposition to Defendant's Motion to Dismiss, has effectively consented to dismissal of these claims. See D.N.M..LR-Civ. 7.1(b) (“The failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion.”). Plaintiff's failure to respond notwithstanding, the Court considers the viability of these claims. Issa v. Comp USA, 354 F.3d 1174, 1177-78 (10th Cir. 2003) (requiring the district court to consider the viability of a claim rather than granting a motion to dismiss “merely because a party failed to file a response” (alteration omitted)).

         A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may come in one of two forms-a “facial attack” or a “factual attack.” Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). A facial attack, which challenges the sufficiency of the allegations in the complaint, relates to the plaintiff's obligation, under Federal Rule of Civil Procedure 8(a)(1), to demonstrate that the court has jurisdiction over the subject matter of the case. Holt, 46 F.3d at 1002; 5B Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1350 (3d ed. 1998). “In reviewing a facial attack, a district court must accept the allegations in the complaint as true.” Holt, 46 F.3d at 1002. Defendant's argument that Title VII has a preemptive effect over Plaintiff's other claims constitutes a facial attack because it challenges the sufficiency of the complaint rather than the facts upon which subject matter depends. Mobley v. Donahoe, 498 Fed.Appx. 793, 796 (10th Cir. 2012) (unpublished).

         Plaintiff's claims in this matter are brought against a federal agency arising out of Plaintiff's federal employment in in Albuquerque, New Mexico. (Doc. 37 at 3-9.) As Defendant correctly argues, Title VII of the Civil Rights Act “provides the exclusive judicial remedy for claims of discrimination in federal employment.” Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976) (holding that the Civil Rights Act of 1964provides the exclusive remedy for claims of discrimination in federal employment); Mobley, 498 Fed.Appx. at 796-97 (holding that because Title VII is the exclusive remedy for claims of discriminatory conduct against federal employers a former employee of the United States Postal Service was precluded from asserting employment discrimination claims pursuant to civil rights statutes or under the Constitution). Accordingly, Plaintiff's claims brought pursuant to the Fourteenth Amendment, Section 1983, and Massachusetts statutory law (which are also unsustainable on other grounds[2]) are preempted by Title VII, which provides Plaintiff's exclusive judicial remedy.

         Furthermore, as to Count VI, a Weingarten claim must initially be pursued through the collective bargaining grievance process. Simensen v. USPS, EEOC Appeal No. 01A21068, *1 (Feb. 26, 2002) (“[T]he proper forum for a complainant's complaint regarding . . . Weingarten Rights is the negotiated grievance process, not the EEO complaint process.”). Plaintiff does not allege in his Complaint, nor has he otherwise demonstrated, that he exhausted his remedies in accordance with the governing collective bargaining agreement. As such, Plaintiff's Weingarten claim is not properly before this Court. See Paige v. Donovan, 511 Fed.Appx. 729, 733 (10th Cir. 2013) (unpublished) (affirming the dismissal of the appellant's Weingarten claim on the ground that the employee had not raised the claim in the first instance with the Federal Labor Relations Authority, and had, therefore, failed to exhaust her administrative remedies).

         For the foregoing reasons, the undersigned recommends that Defendant's Motion to Dismiss Plaintiff's Claims for Violation of his Weingarten Rights (Count VI and for Violation of the 14th Amendment (Count VII) be GRANTED.

         III. Defendant's First and Second Motions for Summary Judgment Should be Granted

         A. The Law Governing a Motion for Summary Judgment

         “Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Jones v. Kodak Med. Assistance Plan, 169 F.3d 1287, 1291 (10th Cir. 1999); Fed.R.Civ.P. 56(a). “A disputed fact is ‘material' if it might affect the outcome of the suit under the governing law, and the dispute is ‘genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1273 (10th Cir. 2005). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000).

         The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact and its according entitlement to judgment as a matter of law. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). If the movant carries this initial burden, the burden shifts to the nonmovant “to go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of a trial from which a rational trier of fact could find for the nonmovant.” Id. at 671; see MacKenzie, 414 F.3d at 1273 (“Unsupported conclusory allegations . . . do not create an issue of fact.”); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995) (stating that hearsay testimony cannot be considered relevant to a motion for summary judgment because evidence offered in opposition to a motion for summary judgment must set forth such facts as would be admissible in evidence). If the nonmovant succeeds in demonstrating a “genuine dispute” as to material facts, the Court views the facts in the light most favorable to him. Ricci v. DeStefano, 557 U.S. 557, 586 (2009). However, “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         B. Defendant's Motion for Summary Judgment as to Count I

         Title VII of the Civil Rights Act of 1964 provides that it is “an unlawful employment practice for an employer . . . to . . . discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). In Count I of the Complaint, Plaintiff claims that, contrary to Title VII, Defendant subjected him to disparate treatment based upon his national origin, race, and color. (Doc. 37 at 9-10.) Specifically, Plaintiff claims that while he received a letter of reprimand for “alleged conduct issues, ” individuals who were not Hispanic or “brown-skinned in color” and who did “similar acts” to those that led to Plaintiff's reprimand were not officially reprimanded but were, instead, “provided warnings and cautions.” (Id.) Defendant argues that Plaintiff's claim fails as a matter of law because (1) Plaintiff cannot establish a prima facie claim of race discrimination, and (2), even if Plaintiff could establish a prima facie case of discrimination, the undisputed material facts demonstrate that Defendant had “legitimate business reasons” for its actions. (Doc. 49 at 11.) As discussed next, the Court concludes that Plaintiff has established a prima facie case of discrimination. However, Defendant is entitled to summary judgment because the undisputed facts establish that Defendant had a legitimate, non-discriminatory and non-pretexual reason for officially reprimanding Plaintiff.

         1. Plaintiff Has Exhausted His Administrative Remedies Related to His Claim that Racial Discrimination Was the Underlying Cause of His Official Reprimand

         In December 2009 Defendant (via Plaintiff's supervisors at the Agency), having concluded that Plaintiff's overtime reports reflected a pattern of misrepresentation and falsification, issued a “memorandum” of official reprimand to Plaintiff, a copy of which was placed in his official personnel folder for a period not to exceed one year. (Doc. 49-9.) Among other things, the memorandum advised Plaintiff that “future acts of misconduct [would] lead to more serious forms of disciplinary action.” (Doc. 49-9.) Plaintiff, who believed that the reprimand was driven by race-based discriminatory animus, filed a complaint with the Social Security Administration in February 2010, claiming that based on “his color, national origin (Hispanic), sex (male) and race (Hispanic)” he was given an official letter of reprimand. (Doc. 49-10.) At an EEOC hearing held in February 2011, the presiding Administrative Judge confirmed that Plaintiff had withdrawn his sex discrimination claim, and the only issue remaining was whether Plaintiff had been “subjected to discrimination based on his national origin, Hispanic; his race, Hispanic; or his color when . . . he was given an official letter of reprimand.” (Doc. 49-11 at 2-3.) After the hearing, the Administrative Judge concluded that the evidence was insufficient to find that Plaintiff had suffered discrimination based on his race, national origin or color when he was given a letter of official reprimand. (Doc. 49 at 9.) Plaintiff appealed this decision, and the EEOC issued its denial for Request for Reconsideration and Notice of Rights, finding that it was unable to conclude that the information submitted by Plaintiff established a violation of Title VII. (Doc. 37 at 2 ¶ 5.) Based upon the foregoing, it is undisputed that Plaintiff has exhausted his administrative remedies as to his claim that the official reprimand was driven by race-based animus. (Doc. 49 at 10.)

         2. Undisputed Material Facts Relevant to Count I

         The Court considers the following facts, which are material to Count I, to be undisputed.[3]Plaintiff was hired by the Agency as a legal assistant. (Doc. 49 at 2 ¶ 2; Doc. 55 at 2 ¶ 5; Doc. 49-2 at 2; Doc. 49-3 at 1¶ 1.) Candelaria Aragon, the Agency's supervisory legal assistant was Plaintiff's supervisor; Mark Dawson was the Agency's chief administrative judge; and Kim Kallio was the Agency's administrative officer. (Doc. 49-2 at 2; Doc. 49-5 at ¶ 1.) When, in February 2009, the Agency staff began working overtime Ms. Aragon told the legal assistants that overtime was authorized only for a particular task called “workup.” (Doc. 49-3 at ¶ 4; Doc. 49 at 2 ¶ 4; see Doc. 55 at 2 ¶ 4.)

         According to Ms. Aragon, questions about Plaintiff's overtime reporting began when another employee in the office reported to her that Plaintiff was conducting personal business while he was “in overtime status.” (Doc. 49-3 at ¶ 2; Doc. 49 at 2 ¶ 5; Doc. 55 at 3 ¶ 5.) Based upon this report, Ms. Aragon compared some of Plaintiff's requests for overtime with information in the Agency's Case Processing Management System and found discrepancies, which she reported to Chief Administrative Law Judge Mark Dawson who, in turn, asked Kim Kallio to review Plaintiff's overtime sheets. (Doc. 49-3 at ¶ 2; Doc. 49-2 at 2 ¶ 6; Doc. 49-5 at 1 ¶ 2; see Doc. 55 at 3 ¶ 6.) According to Ms. Kallio, her review revealed “numerous discrepancies” (approximately 30) in Plaintiff's overtime reporting, which she set forth in a document titled “Summary of Overtime Reports of Samuel Woodward.” (Doc. 49-4 at ¶ 4; Doc. 49-5 at ¶¶ 2, 10; Doc. 49-6; Doc. 49 at 3 ¶¶ 10, 12; see Doc. 55 at 4 ¶ 10.) Specifically, in comparing Plaintiff's overtime reports with the Agency's Case Processing Management System, Ms. Kallio found several instances of Plaintiff (1) having reportedly worked overtime to complete tasks that were actually completed by another employee, and (2) having reportedly worked overtime to complete “workup” on the same case, sometimes on multiple occasions-a circumstance for which “no legitimate reason” exists in the context of the Agency's case management system. (Doc. 49-5 at ¶¶ 8-10; Doc. 49 at 3 ¶ 12; see Doc. 55 at ¶ 12.)

         According to Mark Dawson, because Plaintiff's overtime reporting discrepancies revealed Plaintiff's “systematic falsification of official records” he was first inclined to “proceed toward termination.” (Doc. 49-7 at 2.) However, before he made a final decision regarding discipline, Mr. Dawson consulted Howard Goldberg, Employee Relations Specialist, GS-13, Office of Disability Adjudication and Review, Office of the Regional Chief Judge, Philadelphia Pennsylvania. (Doc. 49-8 at 1.) Mr. Dawson consulted with Mr. Goldberg regarding the appropriate disciplinary action because he had been advised by his supervisors that “whenever there was any issue having to do with personnel or possible adverse action, to consult Mr. . . . Goldberg, [who] was considered the guru . . . with regard to all of these issues.” (Doc. 55 at 25.) Mr. Goldberg agreed with Mr. Dawson's inclination to terminate Plaintiff's employment, reasoning that Plaintiff “should be removed” because “[f]alsifying overtime reports is analogous to stealing money from the government” and Plaintiff's “inappropriate behavior was done over a period of time” and was therefore “egregious enough to warrant removal.” (Doc. 49-8 at 5.) Mr. Dawson stated that although they discussed termination, as one possible scenario, Mr. Goldberg “ha[d] no decisional or policy authority, ” and that he, not Mr. Goldberg, made the final decision concerning Plaintiff's discipline. (Doc. 49-7 at 10.)

         Although Mr. Dawson approximated that “51 hours of overtime charged to the Government by Plaintiff appear to have resulted at least in part from Plaintiff having engaged in activities other than proper work, ” he ultimately decided not to terminate Plaintiff's employment. Instead, he decided to issue “[a]n official letter of reprimand” which, Mr. Dawson reasoned, “was . . . the least severe form of discipline that would convey the seriousness of the offense committed.” (Doc. 49 at 5 ¶¶ 20, 22; Doc. 49-7 at 4; see Doc. 55 at ¶¶ 20, 22 (citing Doc. 55 at 25-31).) According to Mr. Dawson, this decision conformed with “the principle of escalating punishment, and [arose from] a desire to salvage [Plaintiff as an] employee[.]” (Doc. 49-7 at 2; Doc. 49 at 3 ¶ 13, 5 ¶ 20; see Doc. 55 at 5 ¶ 13, 5 ¶ 50 (citing Doc. 55 at 25 & 35).) Ms. Aragon issued an “official reprimand” to Plaintiff on December 10, 2009, which was memorialized in a memorandum. (Doc. 49-9; see Doc. 49 at 5 ¶ 21 (citing Doc. 55 at ...


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