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Poer v. Astrue

May 27, 2010

DARRELL POER, PLAINTIFF-APPELLANT,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:07-cv-01425-SEB-JMS-Sarah Evans Barker, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED FEBRUARY 10, 2010

Before RIPPLE, MANION and WILLIAMS, Circuit Judges.

Darrell Poer brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against his employer, the Social Security Administration ("SSA" or "Administration"). He alleged that the Administration failed to promote him because he had engaged in protected activity, specifically he had testified on behalf of two other employees. The district court granted summary judgment to the Administration.

For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I. BACKGROUND

A. Facts*fn1

1.

Mr. Poer's claim concerns the filling of a GS-13 Supervisor Attorney-Adviser position in the SSA's Office of Disability Adjudication and Review ("ODAR") located in Indianapolis, Indiana. Because the procedure for filling a position at this level is convoluted and also bears upon Mr. Poer's claim, we set it forth in some detail.

The Regional Chief Administrative Law Judge is the selecting official for GS-13 attorney positions. At the relevant time, Paul C. Lillios was the Regional Chief Administrative Law Judge for Region V, which encompasses Indiana, Illinois, Wisconsin, Michigan, Ohio and Minnesota. It was Judge Lillios's practice to seek the recommendation of the Hearing Office Chief Administrative Law Judges regarding the selection of GS-13 senior attorneys. Administrative Law Judge Blanca de la Torre acted as the SSA's Hearing Office Chief Administrative Law Judge in Indianapolis. In this capacity, it was Judge de la Torre's responsibility to determine the organizational structure, staffing needs and composition of staff at the Indianapolis office.

Before an area ODAR office within Region V was allowed to announce an open position, it had to request authority to fill the position from the Region V office. In 2005, Frank McGinley, ODAR's Region V Regional Management Officer, was responsible for reviewing and approving such requests. If the request were approved, it would be sent to the Human Resources Specialist, a position that was held by Addie Price.

Price then would prepare the vacancy announcement, collect the applications and create a "well-qualified certificate,"*fn2 which listed the applicants that had been determined to have the best qualifications for the vacant position. Price also was responsible for compiling the certificate package, which included the well-qualified certificate and the applications of the individuals who were listed on the certificate. "When the number of candidates listed on the certificate did not provide a sufficient field of candidates from which to choose, it was a common and longstanding practice of Region V ODAR to cancel the announcement for lack of a sufficient field of candidates." R.43, Ex. 3 ¶ 10. According to McGinley, "it was desirable to have at least three viable candidates to choose from because this help[ed] to ensure that the best possible selection [wa]s made." Id.

Price would forward the compiled package to Mary Jo Awbrey, who was responsible for personnel actions in McGinley's office. Upon receipt of the certificate package, Awbrey would report to McGinley that the certificate package had arrived and then send it to the ODAR's Hearing Office Chief Administrative Law Judge.

If the Hearing Office Chief Administrative Law Judge selected an individual for a GS-13 attorney position, she would sign the well-qualified certificate, indicate the choice and return the certificate to Region V headquarters in Chicago. At that point, McGinley would review the choice with Judge Lillios. If Judge Lillios agreed with the recommendation, he would sign the well-qualified certificate as the selecting official. Awbrey then would send the certificate package to Price to implement the personnel action.

2.

Since 1990, Mr. Poer has worked as an Attorney Adviser for the ODAR in Indianapolis. In 2003, Mr. Poer testified on behalf of two female African-American employees who had filed suit against Allen Kearns; Kearns was the Hearing Office Director and Mr. Poer's second level supervisor.*fn3 Following Mr. Poer's testimony, both Mr. Poer and Kearns remained employed at the SSA. Mr. Poer admits that, for the two years ...


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