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High v. Commissioner, Social Security

United States District Court, D. Maryland

October 16, 2019

JERLYN HIGH, Plaintiff,



         Plaintiff Jerlyn High (“Plaintiff”) filed this case against her employer, Defendant Commissioner of the Social Security Administration (“SSA”), alleging racial discrimination, gender discrimination, and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and age discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA”). ECF 1. Defendant filed a Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF 15, along with a memorandum of law, ECF 15-1 (collectively, the “Motion”). Plaintiff opposed the motion (“Opposition”), ECF 16, and Defendant replied (“Reply”), ECF 19. I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the reasons that follow, I will grant the Motion.


         The facts below are taken in the light most favorable to Plaintiff, the non-moving party. Plaintiff's employment with the SSA began in 1980. ECF 1, ¶ 8. In March, 2014, Plaintiff, an African-American female, was approximately fifty-six years old, and worked as a GS-14 Management Analyst, Project Manager within the Office of Central Operations (“OCO”). Id. ¶ 7; ECF 15-3 at 2. SSA posted a vacancy announcement for a Senior Program Advisor (GS-15) position within the OCO's front office (“the Position”). ECF 15-2. The announcement specified that the Position was temporary and would not exceed one year, but also noted that “[t]emporary promotions or reassignments may be extended or made permanent.” Id. at 2-3.

         Plaintiff applied for the Position, and the interview panel unanimously recommended Plaintiff following the interview process. See, e.g., ECF 15-5 at 38-40; ECF 15-6 at 15. The deciding official, Van Roland (formerly Van Nguyen), ECF 15-7 at 3, selected Plaintiff, and she started the Position on March 9, 2014, ECF 15-3 at 2; ECF 16-10 at 1-2. The Notification of Personnel Action reflecting Plaintiff's promotion stated that the date of the promotion was not to exceed (NTE) March 8, 2015. ECF 15-3 at 2. Upon commencing her new role, Plaintiff executed a form entitled “TEMPORARY PROMOTION/REASSIGNMENT Statement of Understanding.” ECF 15-8. By signing the form, Plaintiff acknowledged, in relevant part, “I understand that I may be returned to my former position (or to a different position of equivalent grade and pay) at any time.” Id.

         Shortly after Plaintiff began her new role, William Martinez (46-year-old Hispanic male) became her immediate supervisor, and supervised her from July through November, 2014. ECF 1, ¶ 2; ECF 16-8 at 22, ¶ 7. High's second-line supervisor, the Associate Commissioner, also changed over the term of her special assignment. Ms. Roland served as the Associate Commissioner from March through July, 2014. ECF 1, ¶¶ 10, 12; ECF 16-8, ¶ 12. Upon her departure, Mr. Roy Snyder (a Caucasian male over 50 years old), took over as Acting Associate Commissioner. ECF 1, ¶ 12; ECF 16-8 at 21-22, ¶ 6. In November, 2014, Ms. Janice Foushee (67-year-old Caucasian female) returned to the Office of the Associate Commissioner (OAC) as the Associate Commissioner. ECF 1, ¶ 12; ECF 16-8 at 46, ¶¶ 1, 3. Throughout the relevant period, Denise Wiley (44-year-old African-American female) served as the Executive Officer for the OAC. ECF 1, ¶ 16; ECF 16-8 at 50, ¶ 3.

         In the Position, Plaintiff served as the Project Lead for a special initiative within OAC (“the Project”). ECF 16-12 at 87. Plaintiff's duties included leading a work group established for the Project. ECF 16-13. The work group included at least four members in addition to Plaintiff (“Work Group Members”): Linda Faulkner-Martin (African-American female of unknown age); John Leuchtman (45-year-old Caucasian male); Anita Sherrod (African-American female at least 50 years of age); and Melissa Morant (African-American female believed to be in her forties). ECF 15-5 at 17-18, 28. The Work Group Members continued working their existing jobs, which were permanent GS-15 positions, in addition to their participation in the work group. ECF 16-8 at 27, ¶ 51 (“I led a small team of GS-15s who likewise complained about everything”); ECF 15-5 at 20 (asserting that the Work Group Members complained so that Plaintiff “would not become a permanent GS-15 like they were”); ECF 19-2 at 55 (“These people did this as a work group, as a collateral duty to their regular jobs.”). Plaintiff, as the leader of the work group, was the only member who was on a temporary special GS-15 assignment to focus on work group duties. ECF 15-5 at 20; ECF 16-8 at 21, ¶¶ 3-4. Plaintiff still performed other assignments relating to OAC's front office and general operation on a regular basis, although she believed some of the duties should have been performed by employees at lower grade levels. ECF 16-5, ¶ 12; ECF 1, ¶¶ 14, 16. Plaintiff alleges that shortly after she began the special assignment, Roland told her that her work on the project would last for at least two years. ECF 16-12 at 15. However, after Roland's departure, Martinez micromanaged Plaintiff's work. ECF 1, ¶ 13; ECF 16-8 at 25-26, ¶ 37.

         Ms. Foushee and Ms. Wiley reported receiving negative feedback from certain employees about Plaintiff's leadership, ECF 15-4 at 12-13; ECF 15-6 at 11-14, though other employees wrote complimentary emails to Plaintiff upon her departure from OAC, ECF 16-19. According to Plaintiff, one of the Work Group Members, Mr. Leuchtman, did not perform his assigned tasks and regularly undermined Plaintiff's authority. ECF 1, ¶ 18.

         In October, 2014, Mr. Martinez completed a performance assessment of Plaintiff. Id. ¶ 22; ECF 16-8 at 27-28, ¶¶ 51-54. He rated Plaintiff as “Fully Satisfactory, ” for the period between March 2014 through September, 2014, but Plaintiff believed the rating to be lower than warranted. ECF 1, ¶ 22; ECF 16-8 at 28, ¶ 52. Mr. Martinez told Plaintiff that he had used feedback from Mr. Leuchtman, Ms. Roland, and Ms. Foushee to evaluate her work. ECF 16-8 at 27, ¶ 51. Plaintiff believes he should have talked with other relevant individuals who had favorable views of her performance. Id. at 27-28, ¶ 51. Moreover, Mr. Martinez did not complete a mid-year performance appraisal for Plaintiff in July, 2014, as required by SSA policy. Id. at 23, ¶ 11. As a result of the Fully Satisfactory rating, Plaintiff did not receive a monetary performance award for high performance. ECF 16-5, ¶ 11. Plaintiff was also eligible for, but did not receive, an Exemplary Contribution Service Act Award (“ESCA”) for her work in the Position. ECF 15-13 at 5-7.

         On November 17, 2014, Ms. Wiley informed Plaintiff that her special assignment would be ending, effective at the end of the month. ECF 16-8 at 4, 14. Plaintiff sought a meeting with Mr. Martinez on November 21, 2014, which was rescheduled until December 12, 2014. ECF 16-15; ECF 16-16; ECF 16-23. Effective November 30, 2014, Plaintiff returned to a GS-14 project manager position, which negatively impacted her pay and her retirement benefits.[1] ECF 15-3 at 3; ECF 16-5, ¶ 21.

         In December, 2014, Ms. Foushee assigned Ms. Wiley, who was then serving as Deputy Assistant Associate Commissioner for the Office of Earnings and International Operations, to lead the Project as a collateral duty to her regular position. ECF 19-2 at 55-56; see ECF 15-13 at 13.[2]Ms. Wiley did not receive a promotion or any additional compensation for taking on the Project as one of her collateral tasks. ECF 16-24 at 4. Ms. Wiley, and some Working Group Members, still contacted Plaintiff directly (rather than through her supervisor) to ask questions about the Project, despite Plaintiff's removal as Project Lead. ECF 16-14; ECF 16-17 at 1-3.

         After Plaintiff's return to a GS-14 position, Mr. Leuchtman failed to provide information to Plaintiff in a timely fashion to allow her to award ESCAs to her supervisees. ECF 16-22. The email exchanges regarding the incident reflect that the processing issues affected a large number of employees, not just Plaintiff. Id.

         On January 26, 2015, Plaintiff initially contacted an EEO officer at the Equal Employment Opportunity Commission (“EEOC”) about her allegations of discriminatory treatment, ECF 16-8 at 1, and filed a final complaint on March 30, 2015, ECF 1, ¶ 6. On July 17, 2018, an Administrative Law Judge (“ALJ”) granted Defendant's Motion for Summary Judgment. ECF 15-19. Plaintiff filed her Complaint in this Court on October 29, 2018. ECF 1.


         A. Motion to Dismiss

         Defendant has filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, a motion for summary judgment. ECF 15. A defendant is permitted to test the legal sufficiency of a complaint by way of a motion to dismiss. See, e.g., In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts ...

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