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Delaittre v. Berryhill

United States District Court, W.D. Washington, Seattle

December 28, 2017

NANCY A. BERRYHILL, in her official capacity as Acting Commissioner of the UNITED STATES SOCIAL SECURITY ADMINISTRATION, Defendant.


          The Honorable Richard A. Jones, United States District Judge.

         This matter comes before the Court on the parties' motions for partial summary judgment. Dkt. ## 30, 34. Both motions are opposed. Dkt. ## 39, 46. For the reasons that follow, the Court DENIES Plaintiff's Motion (Dkt. # 30), and GRANTS in part and DENIES in part Defendant's Motion (Dkt. # 34).

         I. BACKGROUND

         Plaintiff David DeLaittre is the Regional Chief Administrative Law Judge (“RCALJ”) for Region 10 in the Office of Hearing Operations (formerly the Office of Disability Adjudication and Review) (“ODAR”) for the Social Security Administration (“SSA”) in Seattle, Washington. Dkt. # 5 at ¶ 4. He is a 71-year-old blind male. Dkt. # 5 ¶ 8. Plaintiff became an Administrative Law Judge (“ALJ”) with the SSA on July 14, 1991. He became the RCALJ for Region 10 on or about July 31, 2000. Id.; Dkt. # 36 Ex. 1. As RCALJ for Region 10, he is the head of ODAR for Region 10, and is in the supervisory chain of all employees in Region 10 who work for ODAR. Id.

         In 2013, a female subordinate employee made a complaint of harassment and hostile work environment against Plaintiff. The SSA then began an investigation into the complaint. Dkt. # 5; Dkt. # 36 Ex. 1. On December 27, 2013, Deputy Chief Administrative Law Judge John Allen, Plaintiff's supervisor, placed Plaintiff on administrative leave pending disciplinary action. Dkt. # 5 ¶ 29. During the course of the investigation, other subordinate employees and a regional executive described additional instances in which they alleged that Plaintiff engaged in sexual harassment of other employees or engaged in other inappropriate behavior. Dkt. # 5 ¶ 24; Dkt. # 36 Ex. 1. Specifically, these employees alleged that Plaintiff made comments stereotyping employees based on their sex, race, and national origin, disclosed employees' medical conditions to subordinates who did not have a need to know, grabbed and touched a female employee inappropriately in an elevator, and told a female regional executive that she was so beautiful that she could be his girlfriend. Dkt. # 36 Ex. 1. Investigators also learned that Plaintiff was improperly using the parking pass assigned to the RCALJ position by letting two subordinate employees use the parking pass in exchange for occasionally driving Plaintiff to various places during and outside of work time. Id. Judge Allen interviewed Plaintiff during the investigation regarding these allegations. Dkt. # 36 Ex. D. On February 18, 2014, Plaintiff wrote a letter to Judge Allen detailing alleged defects and deficiencies in Defendant's investigation. Dkt. # 5 ¶¶ 40, 41. Judge Allen then forwarded this letter and the attachments to the investigators. Dkt. # 36 Ex. D.

         On or about December 12, 2014, Judge Allen informed Plaintiff that his executive assistant, Kathleen Williams, would no longer be assisting him in duties that provided a reasonable accommodation for his disability, but would instead be working on assignments specific to her position as an executive assistant. Judge Allen noted that an additional individual would be hired to assist Plaintiff. Dkt. # 1 Ex. C. On February 19, 2015, after review of the results of the investigation, Chief Administrative Law Judge Debra Bice determined that the incidents alleged in the complaint did not show that Plaintiff subjected the female subordinate employee to a hostile work environment or harassment as defined by law. Dkt. # 36 Ex. 1. However, based on the statements made by employees in their investigative interviews, the CALJ Bice decided to seek a reduction in Plaintiff's grade for conduct unbecoming a federal employee. Id. CALJ Bice also temporarily removed Plaintiff's supervisory duties. Dkt. # 36 Ex. E. On March 23, 2015, Judge Allen informed Plaintiff that Defendant had determined that he was not using the parking pass assigned to the RCALJ position and asked that it be returned. Dkt. # 1 Ex. D.

         In October 2015, the Merit System Protection Board (“MSPB”) held a hearing on the SSA's charge that there was good cause for a reduction in Plaintiff's grade. Plaintiff was present at the hearing and represented by counsel. During the hearing, Susan Brown, the Regional Management Officer of Region 10, and Lorraine Vega, Regional Director of Operations and Administration of Region 10, gave testimony in support of the SSA's charge. In her testimony, Vega alleged that Plaintiff gave her an “unwelcomed hug and kissed her on the cheek in the elevator at the office.” Dkt. # 36 Ex. 1.

         On December 4, 2015, prior to the issuance of the MSPB's decision, Plaintiff filed this lawsuit. The Complaint was then circulated in the region. Dkt. # 32 Exs. C, D. Vega later stated that she felt that the Complaint contained “very negative and damaging information about [her], which [she] consider[s] to be slander.” Id. That same day, Vega made a complaint by email to executives at ODAR that Plaintiff was harassing her for participating in the MSPB proceedings. Dkt. # 47 Ex. 1. Around this same time, Reginald Jackson, senior advisor to the Deputy Commissioner, relayed to Assistant Deputy Commissioner for ODAR, Donna Calvert, that Brown had also complained that Plaintiff was harassing her. Id.; Dkt. # 47 Ex. 2.

         On December 7, 2015, Vega met with Calvert and Deputy Commissioner Theresa Gruber regarding her allegations. Vega told them that Plaintiff was intentionally walking by her office and “lurking” outside her office door in an attempt to intimidate and harass her. Dkt. 47 Ex. 2. Vega indicated that this alleged harassment was not verbal, but limited to her allegation that Plaintiff was frequently listening and lingering outside of her office. Dkt. # 32 Ex. E. Calvert had also heard from Acting RCALJ Lyle Olson that the regional office was experiencing a high level of tension. Dkt. # 48. After the meeting, Calvert decided to refer the complaint to a Harassment Prevention Officer (“HPO”) in the Office of Labor Management and Employee Relations (“OLMER”). Dkt. 47 Ex. 2. Calvert was not involved with the subsequent investigation and made no attempt to ascertain the truthfulness of the allegations. Id. Calvert also decided to place Plaintiff on administrative leave during the investigation due to the reports of tension in the regional office and in an effort to follow Defendant's “general practice of separating accusers from the accused.” Dkt. # 48. Judge Allen informed Plaintiff of this decision by email on December 18, 2015. Dkt. # 5 Ex. F.

         In December 2015, HPO Celene Wilson received Vega's harassment complaint and was advised that Brown had made an oral complaint with similar allegations. Dkt. # 49. After interviewing both Brown and Vega, she determined that an investigation was necessary and assigned two investigators and an Independent Reviewer to the investigation. The investigators interviewed a total of ten people, including people mentioned or suggested by witnesses or people that were physically located where they could have heard or seen the incidents described by other witnesses. Dkt. # 50. After the interviews, the investigators prepared a first-party statement in essay form to document the witnesses' responses during the interview. These statements were given to the witnesses to review, make suggested changes in pen and ink, and then to sign. Wilson then provided the file with the witness statements to the Independent Reviewer for her determination. Dkt. # 49. After reviewing the information from the investigation, the Independent Reviewer determined that Plaintiff's alleged conduct did not rise to the level of harassment so as to constitute a hostile work environment under the law. Dkt. # 32 Ex. K.

         After the Independent Reviewer made her determination, Calvert was informed of the outcome and was provided with the witness statements. Calvert read the statements and spoke to Judge Olsen, Judge Allen, and CALJ Bice. Olson told Calvert that, based on his own personal observations, he believed Plaintiff was walking by the offices deliberately and pausing outside of manager's offices despite having alternative routes to use the restroom or any other place Plaintiff would need to be with the frequency with which it was happening. Dkt. # 48. After reading the witness statements and speaking to Judge Olson, Calvert concluded that the regional office was experiencing a large amount of tension that needed to be addressed. Calvert also concluded that Plaintiff was “lurking” outside offices. Calvert then made the decision to alleviate that tension by moving Plaintiff to an office outside of ODAR. Id.

         After Plaintiff moved offices, it was brought to Calvert's attention that the office had noise or vibration issues and that Plaintiff needed to be moved to a new office. ODAR had no other space available in the same building as the regional office. Calvert authorized the work to determine whether the noise or vibration issues could be mitigated. When it was determined that the issues could not be solved, she directed the current Acting RCALJ Rolph to locate alternative space. Calvert also contacted Regional Commissioner Stanley Friendship for assistance locating alternative space. Two possible spaces were identified, and Plaintiff was offered the choice between those two. Calvert then authorized the expenditures to build out the selected space. Id. In February 2016, Plaintiff was advised that his office would be relocated and that the National Hearing Center would be notified that he would be returning to duty and would be available to resume hearing and deciding cases. Dkt. # 32 Ex. L. By March 1, 2016, Plaintiff had returned to his duties. Dkt. # 32 Ex. S. On April 13, 2016, the MSPB found that the SSA met its burden of proving by a preponderance of evidence that Plaintiff engaged in “conduct unbecoming a federal employee and that good cause exists to discipline [Plaintiff].” Dkt. # 36 Ex. 1.

         On or about November 26, 2014, Plaintiff filed a complaint with the EEO alleging discrimination based on age, sex, and disability, and retaliation. Dkt. # 5 ¶ 50. On January 19, 2016, Plaintiff filed an Amended Complaint against Defendant alleging discrimination based on his disability, age, sex, and religion. Plaintiff also alleges that Defendant violated his due process rights, engaged in retaliation against him, and failed to accommodate his disability. Dkt. # 5. On October 30, 2017, Plaintiff filed a motion for summary judgment of his retaliation claim. Dkt. # 30. On October 31, 2017, Defendant filed a motion for summary judgment of Plaintiff's claims for discrimination based on his religion and age, due process, and his claim that the SSA failed to accommodate his disability. Dkt. # 34. In Defendant's Motion, Defendant represents that Plaintiff is no longer pursuing his claims for discrimination based on his religion or age. Dkt. # 34; Dkt. # 35. Plaintiff does not dispute this representation. Therefore, Defendant's motion is granted as to Plaintiff's claims of age and religious discrimination[1]. Dkt. # 34.

         II. ...

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