Poer v. Astrue

606 F.3d 433, 2010 U.S. App. LEXIS 10800, 93 Empl. Prac. Dec. (CCH) 43,900, 109 Fair Empl. Prac. Cas. (BNA) 682, 2010 WL 2104256
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 27, 2010
Docket09-3473
StatusPublished
Cited by20 cases

This text of 606 F.3d 433 (Poer v. Astrue) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Poer v. Astrue, 606 F.3d 433, 2010 U.S. App. LEXIS 10800, 93 Empl. Prac. Dec. (CCH) 43,900, 109 Fair Empl. Prac. Cas. (BNA) 682, 2010 WL 2104256 (7th Cir. 2010).

Opinion

RIPPLE, Circuit Judge.

Darrell Poer brought this action under Title VII of the Civil Rights Act of 1964, *435 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 1

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,” 2 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 *436 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. 3 Following Mr. Poer’s testimony, both Mr. Poer and Kearns remained employed at the SSA. Mr. Poer admits that, for the two years following his testimony, he suffered no retaliation at the hand of Kearns or anyone else at the Administration.

In 2005, Daniel Mages was reassigned from his position as a GS-13 Senior Attorney-Adviser to a GS-13 Supervisory Attorney-Adviser within the Indianapolis office; this reassignment resulted in the opening of a GS-13 Senior Attorney-Adviser position. In October 2005, at the direction of Judge de la Torre, Kearns requested and received authority to announce an open GS-13 Senior Attorney-Adviser position.

On November 14, 2005, the SSA posted the job opening, which was advertised throughout Region V. Price was responsible for drafting and posting the announcement. The announcement provided that travel and relocation expenses would be authorized in accordance with applicable regulations. Mr. Poer applied for the position.

After receiving the applications, Price assembled the well-qualified certificate, which listed the final candidates from whom a selection would be made. This certificate included Mr. Poer and two other individuals, one from Illinois and one from Iowa. Illinois is in Region V; Iowa is not. The certificate was sent to Kearns and was valid from December 16, 2005, the date on which it was generated, through March 16, 2006.

At the time the certificate was issued, the SSA was under severe budgetary restrictions. A temporary hiring freeze was implemented in January 2006, which “meant that no new hires could be made and that no full time equivalents (FTE’s) could be brought in from another region.” Id. ¶ 19. Additionally, relocation expenses for any candidates had to be approved through ODAR Headquarters in Falls Church, Virginia. Because of the fiscal limitations at the time, “such requests were to be made only for positions that were urgent and critical to the mission of the office where the positions [we]re locat *437 ed”; senior attorney positions were not considered “urgent and critical.” Id. ¶ 21. McGinley explained that, “[g]iven the budgetary constraints, I would not have even asked Headquarters for relocation expenses for the Indianapolis senior attorney position because I knew that my request would have been denied.” Id.

Judge de La Torre stated that, during this time, she participated in regular conference calls with Judge Lillios and McGinley. During these calls, the Hearing Office Chief ALJs were apprised of the SSA’s severe budget limitations and of the “various budgetary concerns stemming from that situation, including a hiring freeze, and restrictions in relocation allocations and full-time equivalent (‘FTE’) positions.” R.43, Ex. 4 ¶ 5.

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606 F.3d 433, 2010 U.S. App. LEXIS 10800, 93 Empl. Prac. Dec. (CCH) 43,900, 109 Fair Empl. Prac. Cas. (BNA) 682, 2010 WL 2104256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poer-v-astrue-ca7-2010.