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Candee v. Berryhill

United States District Court, W.D. Kentucky, Louisville Division

January 10, 2020

PHIL CANDEE Plaintiff
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER SOCIAL SECURITY ADMINISTRATION Defendant

          MEMORANDUM OPINION AND ORDER

          REBECCA GRADY JENNINGS, DISTRICT JUDGE

         This 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].

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The SSA has employed Candee as a Claims Specialist[1] 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].

         The New 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].

         In 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.]

         In 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.

         2012

         In 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.]

         2014

         In 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.

         On 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.]

         On 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. [Id.]

         Shortly 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].

         On 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].

         On 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].

         In 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. [Id.]

         2015

         On or 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 ...


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