JOHN H. RICH, III, Magistrate Judge.
Defendant Carolyn W. Colvin, acting commissioner of the Social Security Administration ("SSA"), moves for summary judgment as to all three claims against her by plaintiff SSA Administrative Law Judge ("ALJ") Katherine Morgan, for retaliation (Count I), sex discrimination (Count II), and age discrimination (Count III). See Defendant's Motion for Summary Judgment ("Motion") (ECF No. 63) at 3; First Amended Complaint and Demand for Jury Trial ("Amended Complaint") (ECF No. 38) ¶¶ 25-53. Morgan concedes that SSA is entitled to summary judgment as to both discrimination claims (Counts II and III). See Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Opposition") (ECF No. 89) at 3. However, she opposes summary judgment with respect to her claim for retaliation (Count I). See id. For the reasons that follow, I conclude that Morgan fails to raise a triable issue on that claim. Hence, I recommend that the court grant the Motion.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2013). "A dispute is genuine if `the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party." Johnson v. University of P.R., 714 F.3d 48, 52 (1st Cir. 2013) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). "A fact is material if it has the potential of determining the outcome of the litigation." Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).
The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Johnson, 714 F.3d at 52. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Brooks v. AIG SunAmerica Life Assur. Co., 480 F.3d 579, 586 (1st Cir. 2007) (quoting Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (emphasis omitted)); Fed. R. Civ. P. 56(c). "As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation omitted).
The evidence that the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the local rules of this district. See Loc. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loc. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See id. The nonmoving party must then submit a responsive "separate, short, and concise" statement of material facts in which it must "admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts[.]" Loc. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See id. The nonmoving party may also submit its own additional statement of material facts that it contends are not in dispute, each supported by a specific record citation. See id. The movant then must respond to the nonmoving party's statement of additional facts, if any, by way of a reply statement of material facts in which it must "admit, deny or qualify such additional facts by reference to the numbered paragraphs" of the nonmovant's statement. See Loc. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id.
Local Rule 56 directs that "[f]acts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted." Loc. R. 56(f). In addition, "[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment" and has "no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of fact." Id.; see also, e.g., Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010); Fed. R. Civ. P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion[.]").
The parties' statements of material facts, credited to the extent that they are either admitted or supported by record citations in accordance with Local Rule 56, with disputes resolved in favor of Morgan as the nonmovant, reveal the following.
Morgan has been an ALJ in the Portland Hearing Office of the Office of Disability Adjudication and Review ("ODAR") since 1994. Joint Factual Stipulations ("Stipulations") (ECF No. 57) ¶ 1.
During the time period relevant to this case, approximately July 2013 through August 2014, Morgan was one of six ALJs in the Portland Hearing Office. Id. ¶ 2. In July 2013, she was 69 years old. Id. At all relevant times, Morgan's direct supervisor was Judge Guy Fletcher, the Hearing Office Chief Administrative Law Judge ("HOCALJ") in Portland, and her second-line supervisor was Judge Carol Sax, the Regional Chief Administrative Law Judge ("RCALJ") for New England ("Region 1"), headquartered in Boston, Massachusetts (the "Boston Regional Office"). Id. ¶¶ 3-4. Sax reported to the Chief Judge for all of ODAR, Debra Bice. Id. ¶ 4. At all relevant times, Fletcher was in his early 60s, and Sax was in her mid-60s. Id. ¶¶ 3-4.
As the RCALJ for Region 1, Sax was responsible for supervising eight hearing offices, located in Connecticut, Rhode Island, Massachusetts, New Hampshire, and Maine. Id. ¶ 5. The Portland Hearing Office was the only hearing office in Maine. Id. During the time that Sax served as RCALJ, Edward ("Ted") Malvey, the Regional Attorney in Region 1, served as her principal adviser on legal matters, including labor and employment matters. Id. ¶ 6. As Regional Attorney, Malvey, who worked in the Boston Regional Office, also assisted and advised the management teams in each of the eight hearing offices in Region 1. Id.
Every hearing office within ODAR has a Hearing Office Director ("HOD"). Id. ¶ 8. The HOD is responsible for overseeing the day-to-day operations of the office. Id. At all relevant times, Stephanie Korupp, who is not an attorney, was the HOD in the Portland Hearing Office. Id.
During the relevant time period, the other ALJs in the Portland Hearing Office were John Melanson, John Edwards, Vickie Evans, Edward Gaulin, and Joseph Shortill. Id. ¶ 9. Melanson and Edwards were in their early 50s, Evans was in her early 40s, Gaulin was in his early 80s, and Shortill was in his early 70s. Id. In addition to the ALJs, ODAR employs a variety of support staff in the Portland Hearing Office, namely, Case Technicians, Attorney Advisers, Paralegal Analysts, a Contact Representative (who also serves as a receptionist), an Administrative Assistant (who is also responsible for entering employees' time into SSA's web-based payroll system), a Case Intake Technician, and a Hearing Office Systems Administrator. Id. ¶ 10.
During the relevant time period, Mary Franklin was the Administrative Assistant (and timekeeper). Id. ¶ 11. Magda Ortiz and Ellen Munsey were the two Group Supervisors, responsible for directly supervising all non-ALJ staff in the office. Id. ¶ 13. Ortiz and Munsey reported directly to Korupp. Id. Fletcher, as the HOCALJ, Korupp, as the HOD, and Ortiz and Munsey, as Group Supervisors, comprised the management team at the Portland Hearing Office at all times pertinent to this case. Id. ¶ 14.
During all relevant times, all full-time ODAR employees, including ALJs, were required to work eight and a half hours a day or use approved leave for hours when they were not working. Id. ¶ 33. All ODAR employees, including ALJs, were required to sign in at the beginning of their workday and sign out at the end. Id. The ALJs in the Portland Hearing Office were supposed to sign in and out every day on a paper sign-in sheet that Fletcher kept in his office for that purpose. Id. On the sign-in sheet, each ALJ was required to record the time that he or she arrived in the office and the time when he or she left the office at the end of the day. Id. Approved leaves of absence (typically either sick leave or annual leave) could be taken in 15-minute increments. Id. Franklin, the timekeeper in the Portland Hearing Office, used the paper sign-in sheets to enter time and leave for every ALJ into SSA's web-based timekeeping system, "WebTA." Id. ¶ 44 n.2.
During the relevant time period, ODAR permitted ALJs to work at a designated location outside of the office on certain days of the week, up to eight days a month, so long as the days and locations were approved in advance. Id. ¶ 34. ODAR's telework policy was known as the "Flexiplace" policy. Id. Most ALJs typically worked from home on their approved Flexiplace days. Id. Morgan typically worked from home pursuant to the Flexiplace policy on Mondays and Fridays. Id.
When ALJs worked outside of the office on their Flexiplace days, they were required to account for the matters on which they were working as well as hours worked. Id. ¶ 35. Each ALJ (including Morgan) was required to submit a separate Flexiplace sign-in sheet for each day he or she worked out of the office. Id. The Flexiplace sign-in sheet was identical to the sign-in sheet used by ALJs in the office. Id. It contained lines where an ALJ was supposed to indicate his or her start and end time for each workday as well as any periods of leave taken during the workday. Id.
During the workday, each ODAR employee was given two 15-minute break periods and one 30-minute period for lunch. Id. ¶ 36. At the Portland Hearing Office, it was acceptable for employees, including ALJs, to aggregate those break periods and take an hour break for lunch. Id.
At all relevant times, ALJs were permitted to earn "credit" hours when they worked more than eight hours in any given day. Id. ¶ 37. Credit hours could be used in lieu of sick or annual leave by an ALJ. Id.
ODAR employees who wish to take time off from work to observe religious holidays are permitted to earn so-called Religious Compensatory Time ("RCT"), which permits them to "repay" time used for religious holidays on specific terms and conditions, when approved in advance by the HOCALJ. Id. ¶ 38. By earning and applying RCT, the employee is able to avoid using annual leave or taking leave without pay on religious holidays. Id. The terms and conditions governing the use of RCT are set forth in the collective bargaining agreement between ALJs and SSA (the IFPTE contract). Id.
In May 2011, the Wall Street Journal published a scathing article about the high approval rate of ALJ David Daugherty in Huntington, West Virginia. Statement of Undisputed Material Facts in Support of Defendant's Motion for Summary Judgment ("Defendant's SMF") (ECF No. 64) ¶ 38; Plaintiff's Opposing Statement of Material Facts Pursuant to District of Maine Local Rule 56(c) ("Plaintiff's Opposing SMF") (ECF No. 83) ¶ 38. In the article, the reporter noted that Daugherty was not the only SSA ALJ who awarded benefits to the vast majority of claimants who appeared before him. Id. The article included a scattershot graph depicting the number of other "outlier" ALJs who awarded benefits more frequently than the average ALJ nationwide. Id.
The Wall Street Journal article triggered a congressional investigation into high allowance rates of ALJs nationwide. Id. ¶ 39. In October 2013, the Senate Committee on Homeland Security and Government Affairs published a report titled, "How Some Legal, Medical, and Judicial Professionals Abused Social Security Disability Programs for the Country's Most Vulnerable: A Case Study of the Conn Law Firm." Id. In that report, the Senate Committee also faulted SSA for overlooking Daugherty's noncompliance with SSA's policies and rules regarding time and attendance. Id. It noted that his "time and attendance problems grew to such a level" that another ALJ in the hearing office "filed allegations of misconduct against Judge Daugherty with the agency's Office of Inspector General." Id.
Beginning in early 2011 and continuing through 2014, ODAR Deputy Commissioner Glenn Sklar frequently communicated the importance of compliance with the agency's time and attendance and leave policies on regularly scheduled nationwide calls with the management teams in every hearing office, including the Portland Hearing Office. Id. ¶ 40.
In December 2013, ODAR also embarked on a new campaign called "See Something, Say Something" to encourage employees in the field to report any type of potential misconduct. Id. ¶ 41. ODAR created a dedicated mailbox through which employees could report suspicious activities. Id. In an effort to ensure that every ODAR employee was aware of the "See Something, Say Something" campaign, ODAR executives placed a large, clickable icon in the center of the Intranet home page of every employee. Id. ¶ 42. As a result, executives at ODAR received hundreds of complaints in the "See Something, Say Something" mailbox. Id. Those complaints were then triaged by a specially-dedicated staff in the Office of the Deputy Commissioner. Id.
In addition to the "See Something, Say Something" campaign, SSA's Office of the Inspector General ("OIG") had an online form on its website through which anyone, including members of the public, could report allegations of "fraud, waste and abuse concerning SSA programs and operations." Id. ¶ 43. Anyone using the online form had the option of remaining "confidential," "anonymous," or both. Id.
Beginning as early as 2011, Morgan occasionally failed to submit Flexiplace time sheets in a timely fashion. Defendant's SMF ¶ 1; Plaintiff's Opposing SMF ¶ 1.
When that occurred, Fletcher would email Morgan to request that she provide the missing documentation and/or correct the sign-in sheets. Defendant's SMF ¶ 2; Plaintiff's Opposing SMF ¶ 2. For example, on January 31, 2011, Fletcher emailed Morgan requesting that she provide 24 missing Flexiplace time sheets dating as far back as November 2010. Id. ¶ 3. With respect to one date in that period, December 23, 2010, Fletcher wrote, "December 23 is a mystery. I don't have a sheet of any cases you took home that day, but I also don't have a leave slip. Please provide me with a leave slip or [F]lexiplace time sheet as appropriate." Id.
In the same email, Fletcher noted that Morgan had incorrectly signed in on January 27, 2011, and asked that she amend the sign-in sheet. Id. ¶ 4. Fletcher wrote:
Id.
Two months later, on March 30, 2011, Fletcher again wrote to Morgan requesting several months of missing Flexiplace time sheets and asking that she submit a leave slip to account for a "long lunch" taken on February 24, 2011. Id. ¶ 5. On June 3, 2011, he again wrote to Morgan about missing leave slips, in an effort to "get our timesheets in order." Id. ¶ 6. With respect to March 29, 2011, he noted:
Id.
Morgan's failure to provide time sheets and leave slips on a timely basis, and to account accurately for her time in general, was a chronic source of stress for Fletcher, Korupp, and Franklin. Defendant's SMF ¶ 7; Fletcher Decl. ¶ 22; Franklin Decl. ¶¶ 14, 23; Korupp Decl. ¶ 13.
Fletcher also had to press Morgan to comply with ODAR's policies regarding RCT. Defendant's SMF ¶ 9; Plaintiff's Opposing SMF ¶ 9. For example, on November 13, 2011, he wrote to her:
Id.
On September 26, 2012, Fletcher emailed Morgan again about a number of time and attendance matters. Id. ¶ 12. He asked Morgan to provide him with several months' worth of missing timesheets, a missing repayment plan for RCT, a missing signature on a sign-in sheet, and a missing leave slip. Id.
On October 2, 2012, Korupp called Carolyn Tedino at the Boston Regional Office to express her misgivings about the discrepancies between Morgan's timesheet and what she had personally observed that day. Id. ¶ 17. She knew that Franklin was going to be out of the office that week and that she would have to certify Morgan's time for that pay period. Id. During the phone call, Tedino warned Korupp that the HOD is always the "last to know and the first held accountable." Id. ¶ 18. Korupp interpreted that comment to mean that her career could be adversely affected if Morgan's unchecked abuse of the agency's time and attendance rules continued. Id.
Korupp also spoke with Fletcher about the matter and told him that she did not feel comfortable certifying Morgan's time. Id. ¶ 19. Korupp suggested that they post Morgan's unaccounted-for time as Absent Without Leave ("AWOL"). Id. Fletcher was not comfortable posting Morgan's time as AWOL and instead directed Korupp to post the time normally (i.e., as regular "duty" time), create a memory jogger, and then let him resolve the discrepancy when he returned to the office. Defendant's SMF ¶ 20; Korupp Decl. ¶ 10; Korupp Dep. Exh. 1 (ECF No. 53), Exh. E1 to Stipulated Record ("Stip. Rec.") (ECF No. 49), at Page ID # 1700.
The postponement of hearings on short notice had an adverse impact on both staff and claimants, contributed to the backlog of cases, and was something that ODAR tracked closely. Id. ¶ 23. In December 2011, which was part of fiscal year 2012, Fletcher attempted to address the issue with Morgan, writing:
Id. ¶ 24.
On July 31, 2013, Morgan canceled all hearings she had scheduled for the following day, August 1, 2013, and submitted a leave slip for annual leave on that day. Stipulations ¶ 45. On August 6, 2013, Fletcher wrote to her asking why she had cancelled those hearings with only one day's notice and taken annual leave. Id. ¶ 46. In his email, Fletcher noted that "canceling and postponing at the last minute puts a lot of strain on the staff, and represents a lot of wasted effort in having scheduled the hearings in the first place." Id.
Morgan responded to Fletcher's email on August 7, 2013. Id. ¶ 47. She stated that she had a "non medical unexpected matter" that she had to attend to on August 1, 2013. Id. She noted that she was "not the only judge in the office" who "has ever cancelled a hearing for non medical reasons," stating:
Id. Fletcher responded on August 9, 2013, apologizing for his belated response and writing:
Id. ¶ 48. Morgan always informed the management team when it was necessary to cancel hearings. Plaintiff's Additional Statement of Undisputed Material Facts ("Plaintiff's Additional SMF"), commencing on page 26 of Plaintiff's Opposing SMF, ¶ 25; Declaration of Katherine Morgan ("Morgan Decl.") (ECF No. 86) ¶ 8.
On or about August 26, 2013, Franklin told Korupp that she felt "uncomfortable" posting Morgan's time for that pay period because she did not believe that it was accurate. Stipulations ¶ 49. Korupp told Franklin to bring her concerns regarding Morgan's timesheets to Fletcher's attention. Id. Franklin subsequently communicated her concerns to Fletcher. Id. ¶ 50. She made contemporaneous handwritten notes regarding her observations and entered them in the "Pay Period Remarks" section of Morgan's WebTA timesheet for that pay period. Id.
On August 26, 2013, Fletcher emailed a memo to Morgan regarding a number of "time and attendance issues." Id. ¶ 51. He informed her that an entry of 30 minutes of "AWOL" was made on August 20 and 22, 2013, because the leave slips she had submitted for those two days did not account for 30 minutes on each of those days. Id. He invited her to amend her leave slips for those two days to ensure that her paycheck would not be "one hour short." Id. He also asked her to submit a leave slip for a quarter-hour on August 14, 2013, because he had "received information" that she had arrived 15 minutes later than the time reflected on her sign-in sheet. Id. Finally, he questioned her entitlement to so-called "credit hours" on August 15, 2013, because he had been informed that she had taken a two-hour lunch that day. Id. The information in his memo was based on information that Franklin had provided to him. Id.
Morgan responded in an August 29, 2013, email to Fletcher, indicating that she would amend her leave slips for August 20 and 22 to account for the two 30-minute blocks of time but refused to sign leave slips for August 14 and 15. Id. ¶¶ 52-53. She denied that she had arrived late on August 14 or taken a two-hour lunch on August 15. Id. ¶ 53. In that email, she also asserted that Fletcher was creating a "hostile work environment" for her by questioning her compliance with time and attendance policies. Id. She stated that she believed that she was being "singled out for disparate treatment based on [her] age and gender" and asserted that Melanson and Edwards frequently took long lunches and/or breaks during the day. Id. Finally, she reiterated her belief that Fletcher had treated her "in a disparate manner" when he questioned her cancellation of hearings on August 1. Id. She wrote that Melanson "cancels cases frequently" on short notice. Id. She concluded: "I only hope this can be resolved amicably and that you and your anonymous informants will cease and desist from singling me out for monitoring and disparate treatment." Id. Fletcher believed that Morgan's perception that Melanson cancelled as many hearings as she did was misplaced. Defendant's SMF ¶ 27; Plaintiff's Opposing SMF ¶ 27.
On August 20 and 22, 2013, Franklin noted that Morgan worked part of each day and took leave for several hours each afternoon, leaving 30 minutes each day unaccounted for. Defendant's SMF ¶ 34; Plaintiff's Opposing SMF ¶ 34. Franklin made contemporaneous handwritten notes regarding her observations of Morgan's behavior on August 14, 15, 20, and 22, 2013, and also entered her observations in the "Pay Period Remarks" section of Morgan's WebTA time sheet for that pay period. Id.
Morgan's disregard for the agency's time and attendance rules was a topic of frequent discussion within the Portland Hearing Office long before December 2013. Id. ¶ 36. Morgan never intentionally entered an incorrect arrival time on a sign-in sheet. Plaintiff's Additional SMF ¶ 28; Morgan Decl. ¶ 6.
On July 29, 2013, Edwards filed an anonymous complaint about his colleague Morgan with the SSA's OIG using a link provided on the OIG's website for reporting fraud, waste, and abuse. Stipulations ¶ 40. Edwards, who did not identify himself, asked the OIG to investigate Morgan for "blatant abuses of time [and] attendance" rules and other violations of SSA policies, including the agency's Flexiplace policies. Id. Edwards also questioned Morgan's high allowance rate of claims for disability benefits, noting that she had "the highest approval rate in the office[,]" which was "close to if not exceeding the Administration's outlier status." Id.
The OIG assigned the anonymous complaint Allegation Number Q13040689 and referred it to ODAR's Division of Quality Service ("DQS"). Id. ¶ 41. DQS is the unit within ODAR's Office of Executive Operations and Human Resources ("OEOHR") responsible for addressing labor and employment issues that arise anywhere in the 10 regions within ODAR. Id. On August 20, 2013, DQS referred the allegation to Malvey with instructions to investigate the complaint and report back to DQS. Id.
On August 21, 2013, Malvey contacted members of the management team at the Portland Hearing Office to inform them about the OIG complaint and request their assistance in gathering information on Morgan's compliance (or noncompliance) with SSA's time and attendance rules and other policies. Id. ¶ 42. Malvey instructed Boston Regional Office employee Maureen Schofield to conduct the investigation. Id. ¶ 43. Schofield is a Special Projects Officer with the Boston Regional Office. Defendant's SMF ¶ 56; Plaintiff's Opposing SMF ¶ 56. Since approximately July 2013, she has been "out-stationed" at the Portland Hearing Office, that is, physically located in Portland. Id. Between July 2013 and August or September 2015, her office was located directly beside that of Morgan. Id.
During the two-year period when Schofield's office was next to Morgan's, Schofield typically arrived in the office between 6:30 and 7:30 in the morning and was generally there before Morgan. Defendant's SMF ¶ 60; Declaration of Maureen Schofield ("Schofield Decl.") (ECF No. 73) ¶ 9.
When Malvey contacted the management team in the Portland Hearing Office, he asked that they provide Schofield with copies of certain documents for the previous four months, including Morgan's sign-in sheets (for office and Flexiplace days), leave requests, leave denials/approvals, and WebTA records. Stipulations ¶ 44.
On September 11, 2013, Schofield provided a report of her findings to Malvey. Id. ¶ 54. Schofield noticed "some discrepancies, but nothing egregious." Plaintiff's Additional SMF ¶ 58; Exh. A (ECF No. 85-1) to Declaration of Benjamin N. Donahue ("Donahue Decl.") (ECF No. 85).
Malvey made a few minor editing changes and forwarded the report to DQS. Stipulations ¶ 55. On December 5, 2013, Randall Arrand, an employee in ODAR's OEOHR who received the report from DQS, submitted it electronically to the OIG. Id. On the form that accompanied the electronic submission, he checked a box indicating: "Allegation substantiated—corrective action taken—no fraud involved." Id.
On December 11, 2013, approximately a week after ODAR had submitted the DQS report electronically to the OIG, Sax traveled to the Portland Hearing Office to meet with Morgan. Id. ¶ 56. Before that meeting, both Fletcher and Sax asked Malvey whether they had an obligation to disclose the existence of the OIG allegation to Morgan under the terms of the collective bargaining agreement between the ALJ corps and the agency. Id. ¶ 57. Malvey consulted with employees at SSA's Office of Labor Management and Employee Relations and thereafter advised both Fletcher and Sax that they should not discuss the OIG allegation, or the possibility of an OIG investigation, with Morgan. Id. Fletcher and Sax were under instructions from the Chief Judge's Office not to inform Morgan that she was the subject of an OIG investigation. Plaintiff's Additional SMF ¶ 38; Defendant's Reply SMF ¶ 38. Malvey also advised Fletcher that, pursuant to the ALJ contract, Morgan "will be notified when the OIG investigation is complete." Plaintiff's Additional SMF ¶ 41; Sax Dep. at Page ID # 1193.
Sax and Fletcher met with Morgan on the morning of December 11, 2013, and discussed time and attendance issues with her. Stipulations ¶ 58. Sax also talked about Senator Coburn and the West Virginia situation and advised that the OIG was investigating ALJs with high production and high payment rates. Id. During the meeting, Morgan asked Sax point blank whether she (Morgan) was the subject of an OIG investigation. Id. Sax responded in the negative. Id.
At the end of the meeting, Morgan asked for an opportunity to speak privately to Sax. Id. ¶ 59. In that meeting, she informed Sax that she believed she had been subjected to harassment by her colleagues and that Fletcher had condoned the inappropriate behavior of Edwards and Melanson. Id. She told Sax that she believed Melanson, Edwards, and Fletcher were hostile to older women and that they had treated her in a hostile and disrespectful manner in judges' meetings. Id. Sax responded, "Yes, I really should have done something to stop them," referring to times that Edwards and Melanson had treated her (Sax) in a hostile, disrespectful manner. Id.
After lunch, and in violation of her specific instructions from the Chief Judge's Office and Malvey, Sax returned to Morgan's office and told her about the OIG allegation. Id. ¶ 60; Plaintiff's Additional SMF ¶ 39; Defendant's Reply SMF ¶ 39.
Id.
Fletcher forwarded Morgan's email to Sax and let Morgan know he had done so. Id. ¶ 62. On January 10, 2014, Morgan sent a three-page, single-spaced email to Sax directly, again asserting that she believed she had been subjected to a hostile work environment. Id. ¶ 63.
Prior to Sax's and Fletcher's meeting with Morgan on December 11, 2013, OIG had decided to take no action, deciding that there were no substantiated allegations that required any discipline. Plaintiff's Additional SMF ¶¶ 36-37; Defendant's Reply SMF ¶¶ 36-37.
Sax discovered that OIG had closed out the allegation in February 2015. Defendant's SMF ¶ 123; Declaration of Carol Sax (ECF No. 81) ¶ 14.
Morgan alleges that SSA's failure to inform her that the OIG investigation was completed in October 2013 was a "retaliatory act." Id. ¶ 120.
Fletcher became aware of Morgan's Equal Employment Opportunity ("EEO") complaint in late June 2014. Plaintiff's Additional SMF ¶ 18; Defendant's Reply SMF ¶ 18. In June 2013, Korupp arranged for a private trainer from EAP Consultants, LLC, to come to the Portland Hearing Office on July 16, 2014, at 2:00 p.m. and provide training to all of the employees on "Improving Workplace Communications." Stipulations ¶ 119. Morgan's EEO complaint was part of the basis for having the July 16, 2014, training. Plaintiff's Additional SMF ¶ 9; Defendant's Reply SMF ¶ 9.
On June 13, 2014, and again on July 14, 2014, Korupp sent office-wide reminders to all employees about the training, which was mandatory. Id. Korupp arranged for this training in large part to address what she perceived as the strained relationship between some of the ALJs, including Morgan. Id.
At 12:27 p.m. on July 15, 2014, the day before the scheduled training, Morgan emailed Fletcher to let him know that she would be requesting sick leave on multiple dates in July and August. Id. ¶ 120. July 16 was not one of the dates listed in the email. Id. At 2:46 p.m. on July 15, 2014, Fletcher sent an email to all ALJs reminding them of the "Improving Workplace Communications" training the following day. Id. ¶ 121. He wrote, "All judges are expected at the afternoon training." Id. The following day, at 11:53 a.m., Morgan wrote Fletcher indicating that she would not be attending the mandatory training that afternoon because she had scheduled unanticipated "medical tests" at 1:30 p.m. Id. ¶ 122. Fletcher responded by email at 1:03 p.m., stating:
Id. ¶ 123. Morgan responded by email at 1:16 p.m.:
Plaintiff's Additional SMF ¶ 7; Fletcher Dep. Exh. 13 (ECF No. 49-19), Exh. G1 to Stip. Rec., at Page ID # 996.
Shortill missed the same July 16, 2014, training session to attend a medical appointment. Plaintiff's Additional SMF ¶ 8; Defendant's Reply SMF ¶ 8. Both Morgan and Shortill provided doctors' notes to explain their absence from that session. Id. ¶ 10.
Morgan, like many judges, struggled to comply with each and every SSA time and attendance policy. Plaintiff's Additional SMF ¶ 16; Morgan Decl. ¶¶ 6-7.
On July 23, 2014, Fletcher wrote Evans to let her know that he would be out of the office for the next week and a half and to ask if she would be willing to serve as acting HOCALJ in his absence. Stipulations ¶ 125. She agreed to do so. Id.
Evans had joined the Portland Hearing Office as an ALJ in 2010 and occasionally served as acting HOCALJ in Fletcher's absence. Defendant's SMF ¶ 63; Plaintiff's Opposing SMF ¶ 63. After she joined the Portland Hearing Office, it became apparent to her that Morgan frequently disregarded ODAR's policies regarding time and attendance. Id. ¶ 64. She observed that Morgan came and went as she pleased and was frequently absent for long periods during the day. Id. Evans was told that Morgan had previously sued SSA for discrimination and won a large settlement and, as a result, was essentially "untouchable." Id. ¶ 65. Morgan's disregard for the office's time and attendance policies was a frequent topic of discussion within the office. Id. ¶ 66.
On several occasions when Evans was the acting HOCALJ, Franklin reported her concerns about Morgan's time and attendance to her and indicated that she did not feel comfortable certifying Morgan's time sheets because she did not believe they were accurate. Id. ¶ 68. Evans was also skeptical that Morgan truly worked a full eight-hour day when she was working from home on Flexiplace. Id. ¶ 69.
In early June 2014, ODAR established a virtual private network ("VPN") to allow employees working from home to connect to the ODAR network, just as if they were working at their desktop computers in the office. Id. ¶ 70. The Microsoft Office Outlook suite used by SSA enables users to see the "status" of other users working online. Id. ¶ 71. Users can see, for example, whether someone is "available" or "busy" or "away" from his or her computer and for how long someone has been "offline" from the network. Id. After ODAR installed VPN capability on all of the ALJs' laptops, ALJs teleworking from home connected to the network to access their case files. Id. ¶ 72.
On Friday, June 6, 2014, and again on Monday, June 9, 2014, Evans was aware that Morgan was supposed to be teleworking from home. Id. ¶ 73. Evans periodically checked on Morgan's status throughout the day on each of her telework days and discovered that she was essentially "away" or "offline" the entirety of both days. Id. Evans' observations heightened her suspicions regarding Morgan's abuse of ODAR's Flexiplace policy. Id. ¶ 74. She shared her observations with Korupp, as well. Id.
While Evans was acting HOCALJ in July 2014, Korupp told her that Morgan had taken an extended lunch on July 28, 2014, and then claimed an hour of "credit" time when she signed out at her regular time at the end of the day. Defendant's SMF ¶ 75; Declaration of Vickie G. Evans (ECF No. 75) ¶ 19. Korupp did not believe that Morgan was entitled to an hour of credit time, and brought the matter to Evans' attention as acting HOCALJ. Id.
Sax and Malvey subsequently instructed Fletcher to address the matters directly with Morgan when he returned to the office. Id. ¶ 128.
On August 6, 2014, Fletcher emailed Morgan and told her that he wanted to meet with her the following week "in regard to time and attendance issues relating to Monday and Tuesday of last week." Id. ¶ 134. In his email, he initially identified the wrong dates in question (as August 4 and 5 rather than July 28 and 29). Id. He noted in his email that Morgan had the right to have a union representative present. Id.
Morgan responded later that day, indicating that she would not be available on the date he had proposed for the meeting and questioning the dates he had identified in his email. Id. ¶ 135. Morgan also wrote: "If you have something to charge me with I would like it in writing. I consider this a continuation of the hostile environment, continuing harassment and retaliation against me." Id. In an email to Morgan's union representative, Judge Peter Martinelli, the following day, August 7, 2014, Fletcher clarified the dates in question and spelled out his concerns. Id. ¶ 136. He noted: "My initial e-mail to Judge Morgan cited the wrong dates. My concern involves July 28 and 29, lunch breaks well in excess of one hour, and a claim for credit hours without accounting for the extra time taken at lunch." Id.
On August 11, 2014, Fletcher announced that he would be stepping down as HOCALJ in the Portland Hearing Office and relocating to Arizona to serve as a line ALJ in the Phoenix Hearing Office. Id. ¶ 137. Before meeting with Morgan on August 14, 2014, Fletcher prepared a one-page memo detailing the bases for his concerns and provided it to her. Id. ¶ 138. He wrote:
Id. ¶ 139. On August 14, 2014, Fletcher met with Morgan to discuss the time and attendance concerns that had been raised by Korupp and Evans. Id. ¶ 140. This was a "Weingarten" meeting. Plaintiff's Additional SMF ¶ 57; Fletcher Dep. Exh. 4 (ECF No. 49-19), Exh. G-1 to Stip. Rec., at Page ID ## 979-81.
On Friday, September 12, 2014, Fletcher spoke with Malvey about how to address Morgan's time and attendance issues on July 28 and 29, 2014. Id. ¶ 147. Fletcher emailed Malvey the following Sunday, September 14, with two possible responses to Morgan. Id. On Friday, September 19, Malvey responded and forwarded a draft response to Morgan that he had prepared. Id.
At 3:16 p.m. on October 10, 2014, Fletcher's last day as HOCALJ in the Portland Hearing Office, he emailed Morgan regarding the unresolved time and attendance issues from July. Id. ¶ 148. He attached a copy of a memo that Korupp had circulated on September 12, 2014, reminding all employees of ODAR's time and attendance policies. Id. He wrote:
Id. ¶ 149.
The layout of the Portland ODAR office made it possible to exit or enter without anyone knowing. Plaintiff's Additional SMF ¶ 47; Defendant's Reply SMF ¶ 47. During the time period when Fletcher was the chief judge of the Portland ODAR Hearing Office, Melanson "was routinely going to the Bay Club" during his lunch break. Plaintiff's Additional SMF ¶ 1; Fletcher Dep. at Page ID ## 947-48.
Malvey, testifying on behalf of SSA, stated that, while it was his understanding that there were no exceptions to the policy prohibiting combining leave and lunch, if an ALJ was nearing the end of a hearing day and wanted to continue on and take a later lunch in order not to inconvenience witnesses, claimants, or expert witnesses, "that would be a very good business reason for not enforcing the policy[,]" and if he were the supervisor in that situation, he would say, "yes, go ahead and take the late lunch." Plaintiff's Additional SMF ¶ 32; Malvey Dep. at Page ID # 1128.
On or about July 30, 2014, Korupp submitted an anonymous complaint to the OIG using the link on the OIG's website regarding what she perceived to be Morgan's continuing violations of the agency's time and attendance policies. Stipulations ¶ 129.
Id. The July 30, 2014, anonymous complaint was assigned an "allegation" number by the OIG and closed on the very same day as a "duplicate allegation." Id. ¶ 130. No one from the OIG ever followed up on the second complaint regarding Morgan's alleged failure to follow the agency's time and attendance policies. Id.
On or about August 8, 2014, DQS concluded that Morgan's hostile work environment claim was unsubstantiated. Id. ¶ 131.
Id. ¶ 132. The ODAR staff monitoring the "See Something, Say Something" mailbox forwarded Korupp's complaint to the Boston Regional Office for follow-up. Id. ¶ 133. "See Something, Say Something" complaints are directed to the Chief Judge's office. Plaintiff's Additional SMF ¶ 54; Defendant's Reply SMF ¶ 54.
On the afternoon of October 1, 2014, Morgan was hit in the head by a door as she was attempting to locate her entry badge in her purse. Id. ¶ 150. As she was bending down in front of one of the office exits searching her bag, another ALJ happened to be leaving the office, and when he opened the exit door, it struck her on the head. Id. Morgan left the office immediately after the injury and went to her internist's office for a CT-scan of her head, which was negative. Id. ¶ 151. Fletcher permitted her to use administrative leave for the rest of the day of her injury. Id. She did not return to the office until the following Tuesday, October 7, 2014. Id.
On Monday, October 6, 2014, Fletcher sent an urgent email to Morgan, on which Franklin and Korupp were copied, regarding her time for October 2 and 3. Id. ¶ 152. He wrote:
Id. ¶ 153. When Morgan returned to the office on October 7, 2014, she submitted all of the requested leave slips. Id. ¶ 154. In addition, that day she completed an "Occupational Injury and Illness Report" and a U.S. Department of Labor "Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation" form wherein she requested workers' compensation in the form of leave for the two days that she had missed the previous week. Id. ¶ 155. Her request was later granted, and she was given two days of leave based on the injury that she had sustained. Id. She was paid for all of the time she took off as a result of the workplace injury she sustained on October 1, 2014, and did not have to use her own sick leave for that time. Id. ¶ 156.
Shortly thereafter, Korupp submitted a complaint to the OIG using the link provided on its homepage. Id. ¶ 157. She wrote:
Id.
The OIG referred Korupp's submission to the Boston Regional Office for follow-up. Id. ¶ 158. No one at the Boston Regional Office took any action with respect to her complaint, however. Id.
Morgan did not learn about Korupp's complaints until November 2015, and did so only through the course of discovery in her federal lawsuit. Defendant's SMF ¶ 128; Plaintiff's Opposing SMF ¶ 128.
At no time was Morgan ever subjected to any discipline as a result of her behavior. Defendant's SMF ¶ 98; Fletcher Decl. ¶ 39.
Morgan opposes SSA's motion for summary judgment as to her retaliation claim because, she argues, following her December 11, 2013, complaint to Sax and Fletcher that her supervisors had discriminated against her, those supervisors sought to drive her from the workplace by falsely and improperly informing her that she was the subject of a career-ending investigation, attempting to have her investigated without cause, singling her out for disparate treatment of workplace policies, and generally endeavoring to make her work life miserable. See Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Opposition") (ECF No. 89) at 3; Amended Complaint ¶¶ 25-45.
Morgan invokes 42 U.S.C. § 2000e-3(a), see Amended Complaint at 4, a provision of Title VII of the Civil Rights of 1964 Act ("Title VII") that "prohibit[s] employers from "retaliating against persons who complain about unlawfully discriminatory employment practices[,]" Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 218 (1st Cir. 2016) (citation and internal punctuation omitted). To demonstrate retaliation, "a plaintiff must show that (i) she undertook protected conduct, (ii) she suffered an adverse employment action, and (iii) the two were causally linked." Id. at 218-19 (citation and internal quotation marks omitted).
"An employee who carries her burden of coming forward with evidence establishing a prima facie case of retaliation creates a presumption of discrimination, shifting the burden to the employer to articulate a legitimate, non-discriminatory reason for the challenged actions." Id. at 219 (citation and internal punctuation omitted). "Should the employer create a genuine issue of fact, the presumption of discrimination drops from the case, and the plaintiff carries the burden of showing that the employer's reason for the adverse action was pretextual." Id. (citation and internal quotation marks omitted).
SSA does not dispute that Morgan engaged in protected conduct sufficient to satisfy the first element of her prima facie case; namely, that, (i) on December 11, 2013, she informed Sax that Melanson and Edwards were hostile toward older women and had subjected her to harassment, (ii) the following day, she emailed Fletcher, alleging that she had been "singled out for abuse" by her male colleagues based on her age and gender, (iii) on January 10, 2014, she emailed Sax and again asserted that she had been subjected to a hostile work environment, (iv) on March 26, 2014, she requested pre-complaint counseling with an EEO counselor regarding her claim of workplace discrimination, (v) on May 2, 2014, she filed a formal EEO complaint alleging discrimination based on age, gender, and retaliation for protected activity, (vi) on August 6, 2014, she informed Fletcher that she believed his questioning of her time and attendance constituted a continuation of a hostile work environment, harassment, and retaliation, and (vii) on August 18, 2014, she emailed Fletcher and accused him of creating a hostile environment and of harassment based on age, gender, parental status, and retaliation. Motion at 23-24 & n.9.
However, SSA argues that Morgan's case founders on her failure to show that any of the actions at issue constituted adverse employment actions. See id. at 24-29; Defendant's Reply Brief in Support of Motion for Summary Judgment ("Reply") (ECF No. 95) at 2-10. In the alternative, it contends that Morgan fails to demonstrate the requisite causal link between her protected activity and the actions of which she complains for purposes of either her prima facie case or subsequent burden-shifting analysis. See Reply at 10-15. For the reasons that follow, I agree that Morgan fails to meet her burden of demonstrating that she was subjected to an adverse employment action. This is dispositive of her retaliation claim, warranting summary judgment in SSA's favor.
Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 176 (1st Cir. 2015) (citations and internal punctuation omitted). "This is an objective test and should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances." Lockridge v. University of Me. Sys., 597 F.3d 464, 472 (1st Cir. 2010) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006)).
The First Circuit has observed that "[a]fter Burlington Northern, employment actions are less susceptible to categorical treatment when it comes to the question of whether they are or are not materially adverse." Id. For example, "under certain circumstances, the denial of an employee's request for office space could dissuade a reasonable person from making or supporting a charge of discrimination[,]" although not in circumstances in which "[t]he attendant inconveniences may not have been optimal, but neither did they affect [the plaintiff] more adversely than they did some of her colleagues." Id. at 472-73. Additional "[e]xamples of adverse employment actions in the retaliation context include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Morales-Vallellanes v. Potter, 605 F.3d 27, 36 (1st Cir. 2010) (citation and internal quotation marks omitted). "In the absence of a finding that the plaintiff has suffered adverse action, a retaliation claim fails as a matter of law." Id. (citation and internal quotation marks omitted).
Morgan argues that SSA took actions that, individually or collectively, were materially adverse when (i) Sax falsely and improperly informed her that she was the subject of an OIG investigation, (ii) Korupp repeatedly reported her to the OIG, and (iii) SSA supervisors and employees selectively enforced sick leave and lunch break policies against her and monitored her activities in a "Kafkaesque" manner. See Opposition at 4-14.
SSA rejoins that none of those actions resulted in the type of significant harm necessary to establish a legally cognizable claim of retaliation under Title VII and that the court can consider the cumulative effects of such actions only in the context of a hostile work environment claim, which Morgan abandoned. See Reply at 2-3 & n.4. In the alternative, it argues that the listed actions, collectively, fail to demonstrate the existence of a retaliatory hostile work environment. See id. at 3 n.4. I agree that, even viewing the cognizable evidence in the light most favorable to Morgan, her claim founders on this prong.
Morgan contends that, given the potential consequences of an OIG investigation, the mere act of informing an employee that she is the subject of such an investigation constitutes a materially adverse action, regardless of whether the employee is formally disciplined as a result. See Opposition at 7. She cites O'Neal v. State Univ. of N.Y., Civil Action No. CV-01-7802 (DGT), 2006 WL 3246935, at *13 (E.D.N.Y. Nov. 8, 2006), for the proposition that a letter notifying a plaintiff-employee of an investigation that did not result in formal discipline satisfied the "materially adverse" standard, and Rattigan v. Holder, 604 F.Supp.2d 33, 52 (D.D.C. 2009), for the proposition that whether an investigation's effects are felt in the present is irrelevant to whether it would dissuade a reasonable worker from making charges of discrimination. See id.
Nonetheless, as SSA points out, see Reply at 4-5, the United States District Court for the District of Columbia rejected a claim that an OIG investigation constituted a materially adverse employment action when no evidence buttressed the plaintiff-employee's allegations that (i) her reputation had suffered as a result, (ii) OIG investigations generally "cast a shadow" on her agency's employees, (iii) her co-workers knew of the investigation, or (iv) it had any effect on the terms or conditions of her employment, see Brown v. Mills, 674 F.Supp.2d 182, 191-92 (D.D.C. 2009).
Morgan likewise identifies neither reputational harm nor any impact on the terms or conditions of her employment as a result of the OIG investigation at issue.
To the extent that Morgan relies in part on the alleged deliberate falsity of the disclosure, see Opposition at 7, I have determined, as discussed above, that she failed to controvert SSA's statement that Sax did not know until February 2015 that the OIG investigation had concluded, see Defendant's SMF ¶ 123. Hence, the only evidence in the record is that Sax told Morgan what she believed at the time to be true. In any event, deliberate falsity, standing alone, would not establish that the disclosure was materially adverse: the proper analysis centers on the impact of the action on a reasonable employee in the plaintiff-employee's shoes. See, e.g., Planadeball, 793 F.3d at 176. The mere fact that the disclosure was improper—that is, made against the advice of Malvey and the Chief Judge's Office predicated on the ALJ contract, see Stipulations ¶ 60; Plaintiff's Additional SMF ¶ 39; Defendant's Reply SMF ¶ 39; Plaintiff's Additional SMF ¶ 41; Sax Dep. at Page ID # 1193—does not suffice to render it materially adverse for the same reason.
The disclosure, hence, is not actionable as a matter of law. See, e.g., Bhatti v. Trustees of Boston Univ., 659 F.3d 64, 73 (1st Cir. 2011) ("We have found before that a reprimand may constitute an adverse action, but the reprimands at issue here are tamer beasts . . . . Specifically, none of the reprimands here can be said to be material because none carried with it any tangible consequences. . . . Bhatti may well be right that these reprimands were undeserved—indeed, she presents enough evidence that we may safely presume her to be blameless (or nearly so) in each instance for summary judgment purposes—but a criticism that carries with it no consequences is not materially adverse and therefore not actionable.") (citation omitted).
As SSA argues, see Reply at 7 n.6, O'Neal and Rattigan are distinguishable. The letter at issue in O'Neal informed the plaintiff-employee "that she had to submit to a disciplinary interview and that she was the subject of a disciplinary investigation." O'Neal, 2006 WL 3246935, at *13. The court, accordingly, concluded that "the prospect of O'Neal being disciplined was then imminent." Id. In this case, by contrast, there is no evidence that Sax indicated that the prospect of discipline was imminent or that any particular step was about to be taken.
The Rattigan court recognized that, "[o]f course, plaintiff's purely subjective perception that the Leighton EC [Electronic Communication] and resulting security investigation jeopardized his `career goals' does not make defendant's actions materially adverse." Rattigan, 604 F. Supp.2d at 54 (citations omitted) (emphasis in original). It noted, "Rather, plaintiff must produce evidence that the security investigation posed an objective harm to his reputation or prospects." Id. (citations omitted) (emphasis in original). Yet, whereas the employee in Rattigan produced such evidence in the form of the testimony of at least three witnesses, including the individual who conducted the security investigation, that such an investigation could derail an FBI agent's career, see id. at 54-55, Morgan offers no such cognizable evidence.
Sax's disclosure to Morgan of the existence of the OIG investigation, hence, did not constitute an adverse employment action for purposes of her retaliation claim.
Morgan next points to Korupp's reports to the OIG in July, August, and October 20414, citing O'Neal, 2006 WL 3246935, at *9, and Doucet v. University of Cincinnati, No. 1:05CV148, 2006 WL 2044955, at *22 (S.D. Ohio July 19, 2006), aff'd, No. 06-4118, 2007 WL 2445993 (6th Cir. Aug. 28, 2007), for the proposition that the initiation of a formal or serious disciplinary review constitutes a materially adverse employment action even if it does not result in discipline. See Opposition at 8. She asserts that the fact that she learned of Korupp's complaints only through discovery in this case is immaterial, citing Burlington Northern for the proposition that the determination of whether an action is materially adverse is made by examining whether it holds a prospect of harm, not by whether the harm comes to pass or its effect are felt in the present. See id. at 9.
By contrast, SSA contends that the fact that Morgan was unaware of those complaints until she learned of them through discovery, at which time it was clear that OIG had taken no action in response to them, is dispositive. See Motion at 27-28; Reply at 7-8; Defendant's SMF ¶ 128; Plaintiff's Opposing SMF ¶ 128; Stipulations ¶¶ 130, 158. SSA has the better argument.
As Burlington Northern makes clear, the circumstances in which a plaintiff-employee is subjected to alleged retaliatory action are relevant to whether, as an objective matter, a reasonable employee in her shoes would be deterred from protected activity: "Whether a particular [action] is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances." Burlington Northern, 548 U.S. at 71 (citation and internal quotation marks omitted) (emphasis added). In this case, those circumstances include the fact that, when Morgan learned of Korupp's complaints, it was reasonably apparent that the OIG had chosen to take no action in response to them.
A reasonable employee in Morgan's shoes would not have been dissuaded from making or supporting a charge of discrimination by learning simultaneously that complaints had been made to the OIG but that no action had been taken as a result. See, e.g, Benuzzi v. Board of Educ. of City of Chicago, 647 F.3d 652, 665 (7th Cir. 2011) (school principal's request to have plaintiff-employee removed from school did not constitute a materially adverse action for purposes of retaliation claim when plaintiff-employee "was never in fact removed or demoted, even temporarily; an empty threat that quickly dissipates before the employee becomes aware of it does not constitute a materially adverse action"); Valles-Hall v. Center for Nonprofit Advancement, 481 F.Supp.2d 118, 155 (D.D.C. 2007) (lockout of plaintiff-employee from defendant-employer's offices and denial of her remote access to its computer system and voicemail was not a materially adverse action for purposes of her retaliation claim when she did not learn of those actions until after she had resigned; "As Plaintiff appears to have been entirely unaware of the lockout, she cannot claim that she suffered an injury or harm as a result, and therefore cannot demonstrate a materially adverse action on the part of [her employer]."); see also, e.g., Burlington Northern, 548 U.S. at 67 ("The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.").
O'Neal and Doucet—the other two cases on which Morgan relies—do not suggest otherwise. Those cases are materially distinguishable in that, at the time the plaintiff-employees were notified of the initiation of formal disciplinary investigations against them, the prospect of harm remained quite real. See O'Neal, 2006 WL 3246935, at *13; Doucet, 2006 WL 2044955, at *12. Indeed, in O'Neal, the court underscored that the notification letter itself constituted a materially adverse action, regardless of whether the investigation resulted in formal discipline, when (i) "the serious and formal nature of the disciplinary interview" was apparent from the face of the notification given that the defendant-employer invited the plaintiff-employee to bring a union representative or attorney, and (ii) "the prospect of O'Neal being disciplined was then imminent." O'Neal, 2006 WL 3246935, at *13.
In the circumstances of this case, as a matter of law, the Korupp reports do not constitute materially adverse actions for purposes of Morgan's Title VII retaliation claim.
Morgan concedes that merely enforcing rules does not amount to an adverse employment action; however, she asserts that the incidents of which she complains qualify as such because she was subject to excessive and disparate policy enforcement and monitoring. See Opposition at 13-14.
As SSA points out, see Reply at 8, courts "are near unanimous in concluding that close scrutiny, monitoring, or tracking of an employee's whereabouts—without more—simply does not rise to the level of a materially adverse retaliatory action[,]" Aldrich v. Burwell, __ F. Supp.3d _, Civil Action No. 15-1662 (JEB), 2016 WL 3919823, at *6 (D.D.C. July 18, 2016). The reason, as the Aldrich court explained, is that:
Id. (citations and internal punctuation omitted) (emphasis in original). The Aldrich court observed:
Id. at *7 (citations omitted) (emphasis in original).
Morgan first alleges that, when she and Shortill both missed a July 16, 2014, mandatory training session for medical reasons, Fletcher took no action due to Shortill's absence and yet "mobilized the formal disciplinary process" as to her, reporting her to the Boston Regional Office, which initially agreed that a Weingarten investigation should proceed but later advised against one because Shortill's parallel absence would create an "appearance" of unfair treatment. Opposition at 10-11 (citing Plaintiff's Additional SMF ¶¶ 12-14).
As discussed above, these characterizations are unsupported by the citations given, which reflect that Fletcher consulted Malvey of the Boston Regional Office for advice on how to resolve the issue, and Malvey responded that he and the DQS agreed that a Weingarten hearing "may be needed." Fletcher Dep. Exh. 13 at Page ID ## 997, 1002. There is no evidence that Morgan ever was notified that a Weingarten hearing might be held, that any such hearing was in fact held, or that Morgan was disciplined in any manner as a result of her last-minute absence from the training. Ultimately, Fletcher approved her requested medical leave. See Stipulations ¶ 124.
In any event, Morgan fails to show that she and Shortill were similarly situated, either in terms of historical time and attendance policy compliance or the incident at issue. See Deshpande v. Medisys Health Network, Inc., No. 07-CV-375 (NGG) (VVP), 2008 WL 2004160, at *5 (E.D.N.Y. May 7, 2008), aff'd, 423 Fed. Appx. 31 (2d Cir. 2011) (allegations in plaintiff physician's complaint sufficed to survive motion to dismiss when he alleged, in connection with Title VII retaliation claim, that "the monitoring to which Defendants have subjected him and the one-year rather than two-year renewal of his privileges were selectively applied only to him and not to other similarly situated physicians") (emphasis added).
There is no dispute that Morgan had time and attendance compliance issues dating to as early as 2011. See, e.g., Defendant's SMF ¶ 1; Plaintiff's Opposing SMF ¶ 1. Yet, there is no evidence that Shortill had any such history. There is no dispute that Morgan apprised Fletcher two hours before the mandatory training that she could not attend because she had scheduled some unanticipated medical tests. Stipulations ¶ 122. Shortill informed Fletcher of his conflicting medical appointment well in advance of the training. Defendant's Reply SMF ¶ 10; Fletcher Dep. at Page ID # 955; Fletcher Dep. Exh. 13 at Page ID # 995.
No reasonable trier of fact could conclude that, in handling the Morgan and Shortill requests for medical leave in the way that he did, Fletcher selectively enforced time and attendance policies in a manner rising to the level of a materially adverse action against Morgan.
Morgan next complains that lunch break policies were selectively enforced against her both as to the one-hour limit on such breaks and as to the ban against taking such breaks within two hours of the end of a workday. See Opposition at 11-13. On the first point, she asserts that, although she, like other judges, would occasionally take lunch breaks that lasted longer than the officially-permitted single hour, Fletcher addressed this practice only once prior to December 2013, telling her colleague Melanson, who reportedly took long lunches to work out at the Bay Club, to "try to keep it close to an hour." Id. at 11-12 (quoting Plaintiff's Additional SMF ¶ 3). Yet, she contends that after she engaged in protected activity in December 2013, Fletcher began to enforce the one-hour rule aggressively against her, repeatedly drafting official memoranda and emails to her, reporting her to Malvey, and eventually conducting a Weingarten investigation for the same conduct that had merited only an informal warning to Melanson. See id. at 12. She argues that the disparate use of official discipline against her, versus the treatment of Melanson for the same conduct, would dissuade a reasonable worker from making a charge of discrimination. See id.
Nonetheless, Morgan fails to show that she was similarly situated to Melanson. As discussed above, I granted SSA's request to strike her statements that Fletcher (i) "reported" her to the Boston Regional Office, see Plaintiff's Additional SMF ¶ 4, (ii) called Malvey to discuss "disciplining Morgan" but did not call regarding Melanson's "similar conduct," id. ¶ 5, and (iii) did not draft a "similar" memorandum to Melanson "regarding his routinely long lunches[,]" id. ¶ 6, on the basis that they constituted arguments of counsel rather than fact. Morgan adduces no evidence that Melanson's lunch breaks were of comparable length to hers or that Melanson inaccurately reported them on his timesheets. She omits the fact, set forth by SSA in a qualification, that Melanson's conduct occurred in 2006-07, well prior to the period at issue here. See Defendant's Reply SMF ¶¶ 1-3; Fletcher Dep. at Page ID ## 947-48. While Melanson was not subjected to disciplinary action for transgressing the policy, ultimately neither was she. See Stipulations ¶ 149.
As to SSA's purported selective enforcement of the policy barring the taking of a lunch break within two hours of the end of a workday, Morgan does not argue that any particular individual was treated more favorably than her. See Opposition at 12. Rather, she contends generally that, although the policy had not been enforced prior to her protected activity, Fletcher and Korupp repeatedly singled her out for enforcement thereafter, refusing to grant her requests to take a late lunch so that she could finish hearings while "permitting others to bend the rules." Id. This does not suffice to demonstrate that SSA treated others who were similarly situated more favorably in enforcing this policy. See Deshpande, 2008 WL 2004160, at *5. In any event, as discussed above, I have granted in whole or in part, on various grounds, SSA's requests to strike all of the statements of additional facts on which Morgan relies in making this argument. See Opposition at 12 (citing Plaintiff's Additional SMF ¶¶ 31-32, 42, 57, and 59).
Morgan finally contends that, in addition to selectively enforcing policies against her, SSA supervisors and employees took drastic steps to ensure that she was following them to the letter, going so far as to monitor her online messenger system for activity, document her alleged malfeasance to the minute and report it to the Boston Regional Office, plant an investigator in the office adjoining hers, and keep unofficial personnel files on her. See Opposition at 13. She asserts that no other ALJ was monitored at all, much less in the Kafkaesque manner in which she was. See id.
The cognizable evidence, viewed in the light most favorable to Morgan, falls short of demonstrating that she was subjected to the type of "extreme supervision" that courts have concluded might constitute a materially adverse employment action, such as the use of "hidden surveillance cameras and tails[,]" the detailing of another employee to follow a plaintiff-employee and confirm his whereabouts during the day, and the placement of a plaintiff-employee under "constant surveillance." Aldrich, 2016 WL 3919823, at *7.
Morgan relies on Stipulations ¶¶ 43 and 127, Defendant's SMF ¶¶ 70 through 75, and Plaintiff's Additional SMF ¶ 58, see Opposition at 13, which reflect that:
1. Malvey asked Schofield, whose office was next door to that of Morgan, to conduct the investigation undertaken in response to Edwards' complaint, including obtaining and reviewing timesheets, following which Schofield stated that she noticed "some discrepancies [in the timesheets], but nothing egregious[,]" Stipulations ¶ 43; Plaintiff's Additional SMF ¶ 58; Exh. A to Donahue Decl.;
2. Using software installed by ODAR, Evans periodically monitored Morgan's online activity on June 6 and 9, 2014, when she was aware that Morgan was supposed to be teleworking from home, and shared her concerns about her observations with Korupp, see Defendant's SMF ¶¶ 70-74; and
3. Korupp informed Evans, who was serving at the time as acting HOCALJ, that Morgan had taken an extended lunch on July 28, 2014, and then claimed an hour of "credit" time when she signed out at the end of the day, see id. ¶ 75, and Evans and Korupp emailed Fletcher the following day to report concerns arising from their observations of Morgan's comings and goings and Evans' monitoring of Morgan's online activity on July 28, 2014, see Stipulations ¶¶ 126-27.
Morgan points to no evidence that SSA kept an unofficial personnel file on her. See Opposition at 13.
The parties stipulate that the period from approximately July 2013 through August 2014 is the relevant time period in this case. See Stipulations ¶ 2. Even assuming arguendo that Schofield's investigation, which predated Morgan's protected activity and was not undertaken at the behest of her supervisors but, rather, in response to an anonymous OIG complaint, constitutes "supervision," the level of monitoring to which Morgan points over that more than yearlong period does not, as a matter of law, qualify as a materially adverse employment action. See, e.g., Aldrich, 2016 WL 3919823, at *7 (plaintiff-employee failed to plead facts showing that leave restriction was a materially adverse employment action when all that was demanded of her was that she announce any arrival and departure during the day; noting that actions deemed to be materially adverse "cross[ed] the line from enforcement of standard employment policies (even if not uniformly applied) to harassing, badgering, and even threatening conduct").
Morgan argues, in the alternative, that even if the acts of which she complains do not amount to materially adverse employment actions individually, they do in the aggregate. See Opposition at 5-6 (citing, inter alia, Rodríguez-Vives v. Puerto Rico Firefighters Corps of P.R., 743 F.3d 278, 285 (1st Cir. 2014); Ferrante v. MAS Med. Staffing, No. 2:13-cv-00211-JAW, 2015 WL 1401023, at *26 (D. Me. Mar. 26, 2015)). SSA rejoins that the First Circuit made clear in Billings v. Town of Grafton, 515 F.3d 39, 54 n.13 (1st Cir. 2008), that claims predicated on the "collective effect" of retaliatory actions are essentially retaliatory hostile work environment claims — the very claims that Morgan has now abandoned. See Reply at 3 n.4. She states that, to the extent that this court nonetheless entertains a hostile work environment theory, she relies on relevant arguments contained in her motion. See id.
In Billings, the First Circuit observed that "retaliatory actions that are not materially adverse when considered individually may collectively amount to a retaliatory hostile work environment." Billings, 515 F.3d at 54 n.13. However, it noted that, because the plaintiff-employee had not made an argument about the collective effect of the actions of which she complained, it had considered them only individually. See id.
Billings indeed suggests that a Title VII claim of retaliation can be predicated on either discrete acts or their collective effect in the form of a hostile work environment (or both). Rodríguez-Vives cannot fairly be read to hold otherwise. While, in Rodríguez-Vives, the First Circuit held that a plaintiff-employee's allegations of a series of retaliatory actions "cumulatively. . . plausibly paint[ed] a picture that would allow a factfinder to find the [defendant-employer's] conduct sufficient to deter a reasonable person from challenging the [defendant-employer's] discriminatory hiring practices had she known she would be subjected to these abuses if successful[,]" Rodríguez-Vives, 743 F.3d at 285, it did so in the context of analyzing whether the district court had properly granted the defendant-employer's motion to dismiss her complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted, see id. at 286.
In that context, "[t]here need not be a one-to-one relationship between any single allegation and a necessary element of the cause of action." Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 55 (1st Cir. 2013). Rather, "[w]hat counts is the cumulative effect of the [complaint's] factual allegations." Id. (citation and internal quotation marks omitted). See also Rodríguez-Vives, 743 F.3d at 286 ("Given the cumulative weight of [the plaintiff-employee's] allegations, . . . we need not decide whether each of these individual allegations would, standing alone, be sufficient to state a plausible claim of retaliation under Title VII.").
Nor did this court in Ferrante analyze the cumulative effects of asserted retaliatory actions separate from a hostile work environment rubric. To the contrary, the court noted that, "although a typical adverse employment action involves a discrete change in the terms and conditions of employment (say, a discharge, demotion, or reduction in pay), workplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for Title VII retaliation cases." Ferrante, 2015 WL 1401023, at *28 (citation and internal quotation marks omitted).
Therefore, SSA makes the more persuasive argument: that, in this circuit, the cumulative effects of asserted retaliatory actions are to be analyzed as a retaliatory hostile work environment claim.
Yet, SSA reads too much into Morgan's opposing brief in arguing that she "has now apparently abandoned her retaliatory hostile work environment claim, and is instead proceeding on a `discrete acts' theory of retaliation." Reply at 2. While Morgan disputes that it is necessary to analyze the cumulative effects of retaliatory acts through a hostile work environment framework, she plainly argues that the actions of which she complains cumulatively amounted to retaliation for protected activity. See Opposition at 5-6. Nonetheless, her evidence falls short of generating a triable issue.
The actions of which Morgan complains were not, as a matter of law, "sufficiently severe or pervasive" to constitute a retaliatory hostile work environment. Ferrante, 2015 WL 1401023, at *28 (citation and internal quotation marks omitted). In Ferrante, this court found a triable claim of a retaliatory hostile work environment when a plaintiff-employee offered evidence of 21 alleged retaliatory acts during an approximately five-month period, including repeated instances of the reassignment of her job responsibilities to other employees, assignment of blame for the misfiling of charts, denial of a leave request, failure to invite her to an office get-together, omission of her name on several occasions from staff rosters, and failure to include her in a supervisor's meeting that she believed she was supposed to attend. See id. at 29-30.
By contrast, in this case, Morgan was unaware of the existence of the Korupp complaints until it was clear that no action would result from them, and she offers no cognizable evidence that Sax's disclosure of the existence of an OIG investigation or her supervisors' step-up in scrutiny of her time and attendance compliance caused harms beyond "the ordinary tribulations of the workplace[.]" Burlington Northern, 548 U.S. at 68 (citation and internal quotation marks omitted).
Likewise, in Rodríguez-Vives, the First Circuit observed that "several of the specific acts alleged by [the plaintiff-employee, a female firefighter,] by themselves go quite a ways toward making out a claim[,]" citing, as examples, (i) "the alleged refusal of [her] superiors to allow her, like others, to travel on fire vehicles to get lunch[,]" which "might be an adverse employment action on its own[,]" and (ii) her "allegation that she was assigned to cook and clean rather than to perform the same jobs as others in the station," which might, depending on the surrounding facts, "make plausible a finding that there was an adverse employment action." Rodríguez-Vives, 743 F.3d at 285-86.
Morgan identifies no comparably harmful action or collection of actions.
Morgan having conceded that SSA is entitled to summary judgment as to her sex discrimination and age discrimination claims (Counts II and III) and having failed to make out a triable issue of the existence of a materially adverse employment action with respect to her retaliation claim (Count I), I recommend that the court grant SSA's motion for summary judgment as to all claims against it.
