United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
REBECCA GRADY JENNINGS, DISTRICT JUDGE
matter comes before the Court on Defendant Nancy A.
Berryhill's, Acting Commissioner, Social Security
Administration (“SSA”) Motion for Summary
Judgment [DE 46]. Plaintiff Phil Candee
(“Candee”) responded [DE 52], and the SSA
submitted a Reply [DE 53]. This matter is ripe. For the
reasons below, the Court GRANTS IN PART and DENIES IN PART
the SSA's Motion [DE 46].
FACTUAL AND PROCEDURAL BACKGROUND
has employed Candee as a Claims Specialist since 1993. [DE
52, Candee Resp. to MSJ, at 361]. Candee was born in 1963.
[Id.]. Most of this time Candee worked out of the
New Albany, Indiana office. [Id. at 362]. A Claims
Specialist adjudicates Social Security claims and decides
whether claimants meet entitlement requirements for
retirement, disability, and survivor's claims. [DE 46,
SSA MSJ, at 128].
Albany office processes Social Security Act claims related to
Title II benefits, 42 U.S.C. § 401 et seq., and Title
XVI benefits, 42 U.S.C. § 1381 et seq. [DE 46, at 128].
Title II is an insurance program that provides old-age,
survivor, and disability benefits to insured individuals
irrespective of financial need. See 42 U.S.C. §§
403, 423 (1982 ed. and Supp. III). Title XVI is a welfare
program that provides supplemental security income
(“SSI”) benefits to financially needy individuals
who are aged, blind, or disabled regardless of their insured
status. See 42 U.S.C. § 1382(a) (1982 ed. and Supp.
III); [DE 46 at 128, citing Candee Depo. at p. 17]. During
his employment with SSA, Candee has specialized in Title II.
[Id., citing Candee Depo. at pp. 34, 42-46].
2010, Kenneth Corder (“Corder”) became
Candee's District Manager. [DE 52 at 362, citing Candee
Depo. at 34]. In 2011, Corder approved Candee's
Individual Development Plan (“IDP”), which stated
his short range goal was promotion to Technical Expert
(“TE”) and that he wanted to receive training in
Title XVI. [Id.]
2012, Candee, as union steward, assisted co-worker Judy
Washington (“Washington”) in her discrimination
claim before the EEO. [DE 46 at 362, citing Candee Depo. at
79-81]. Washington was in her sixties and claimed she was not
selected for the position of Claims Specialist by Corder
because of her age, race, and gender. [DE 52 at 262]. The
claim concluded in May 2014.
August 2012, Candee contends that he lost an opportunity to
expand his resume when his then-supervisor, Jennifer Bush
(“Bush”), assigned work to Rachel LaCoste
(“LaCoste”) and Lindsey Chitwood to make personal
conference overpayment/waiver decisions and then identified
them as having volunteered for the work. [DE 52 at 363,
citing Candee Decl.¶ 6]. Candee claims Bush explained to
him that she believed Candee had no experience in this area,
which he disputes. [Id.]
February 2014, Candee testified at Washington's EEO
hearing. [Id.] Candee's participation in
Washington's EEO claim was known to Corder.
[Id.] The EEO issued a final decision on
Washington's claim in May 2014.
August 5, 2014, Candee applied for a TE position (the
“2014 TE position”). [DE 52 at 363]. On September
27, 2014, Candee then alleges that he learned other employees
received mentorship opportunities not offered to him.
[Id., citing Candee Decl. ¶ 7]. This included
LaCoste, who was under age 40, and who also applied for the
2014 TE position. [Id.]
September 30, 2014, Corder informed Candee that Beth Berry
(“Berry”) was selected for the 2014 TE position
and that Berry was selected because she had been on more
details and had more experience. [DE 52 at 363, citing Candee
Depo. at 40; Candee Decl. ¶ 8]. Candee and Berry
received the same rating on their applications.
[Id.]. Berry was in her fifties and had worked as a
Title II permanent TE in the Columbus, Indiana office. [DE 53
at 582]. Berry had experience training and mentoring.
after, Candee requested to Corder that management expand the
No. of positions being filed from one to two, so that Candee
could be placed into a second permanent TE position.
[Id.] Corder denied the request, stating the service
area did not warrant another position. [Id.] Candee
then made the request to Corder's supervisor, Marisela
Orozco-Jaramillo, which was denied on October 2, 2014.
[Id., citing Candee Decl. ¶ 9]. Corder had
previously doubled positions when hiring Claims Specialists.
For example, in 2012 he promoted Katherine Kruer and Scott
Rorrer (under age 40) at the same time and in early 2014
Corder promoted Leah Starks and then lateralled Lindsey
Chitwood (both under age 40). [Id., citing Exhibit 8
- Defendant's Interrogatory Response No. 13 &
Supplement.; Candee Dep. at 61-63].
October 28, 2014, Candee requested informal EEO counseling on
his non-promotion and the actions of his supervisors. [DE 52
at 365, citing Candee Decl. ¶ 10].
November 5, 2014, Candee received his yearly performance
review, known as “PACS.” [Id.]. Candee
disputed several ratings given by his supervisor, Bush, whom
he has accused of discriminating against him previously.
[Id., citing Candee Decl. ¶ 11; Exhibit 9 -
Candee's 2015 PACs].
December 2014, Candee filed his own EEO complaint against the
SSA. [DE 52 at 379, citing Candee Decl. ¶ 8]. An EEO
investigation occurred in which Corder, and Bush,
Candee's then first line supervisor, provided affidavits.
about March 11, 2015, Corder and Bush denied Candee's
request for overtime pay which Candee believed conflicted
with established policy. [DE 52]. On March 13, 2015, Candee
emailed both Corder and Bush and stated, “[s]ince you
can't attack my work on quality, you attack me on
timeliness. All of which is about my EEOC ...