Court Does Not Impute Subordinate's Alleged Retaliatory Motive To Decision-Maker
POER v. ASTRUE (May 27, 2010)
Darrell Poer has been an attorney in the Social Security Administration's (SSA) Office in Indianapolis for years. In 2003, he testified on behalf of two female African-American employees in a suit against Allen Kearns, the Hearing Office Director. In 2005, a more senior attorney position opened in the Indianapolis office. Poer applied for the position. Under the applicable procedures used by the office, a) the HR Department processed applications and made a list of the best qualified candidates, b) they forwarded the list of candidates to Administrative Law Judge (ALJ) de la Torre for his recommendation, and c) ALJ de la Torre forwarded her recommendation to ALJ Lillios, who is the decision-maker. In addition, the practice of the office was to cancel a vacancy if fewer than three qualified candidates existed. At the time of the 2005 vacancy, severe budget cuts prohibited moving employees from one region to another and severely limited relocation expenses. The list of candidates for the 2005 promotion included Poer and two other candidates, one from inside the region and one from outside the region. ALJ de la Torre received the candidate list from Kearns and understood from Kearns that Poer was the only candidate from within the region – and therefore the only viable candidate. The vacancy expired without a selection. Kearns advised the region office: "no FTEs available." Kearns represented himself to Poer as the selecting official and told Poer that he was not selected because he was the only candidate on the list. Poer filed suit, alleging that the SSA failed to promote him in retaliation for his testimony against Kearns. Judge Barker (S.D. Ind.) granted summary judgment to the SSA, concluding that no decision-maker was even aware of Poer's testimony and that there was no evidence of Kearns significantly influencing the promotion decision. Poer appeals.
In their opinion, Judges Ripple, Manion, and Williams affirmed. At least for purposes of the summary judgment motion, the SSA conceded that Poer engaged in protected activity and suffered an adverse job action -- two of the three requirements under the direct method of proof in a Title VII claim of retaliation. The third requirement, a causal connection between the two, was the only issue for the court. Since it was undisputed that the decision-makers were unaware of Poer's protected activity, Poer had to succeed in imputing the alleged retaliatory motive of Kearns to the decision-makers to establish a causal connection. The Court noted that it has imputed such motives when the non-decision-maker has concealed information or fed false information to the decision-maker. Here, the evidence supports an inference that Kearns provided false information to ALJ de la Torre. However, the evidence also establishes that the false information had no impact on ALJ de la Torre's decision not to fill the vacancy. Whether the other two candidates came from outside the region, as mistakenly believed by de la Torre, or came from outside Indianapolis, as is the truth, ALJ de la Torre's decision would have been the same. Because of the relocation expense restrictions, Poer was the only viable candidate and could not have been promoted under agency policy. His retaliation claim fails.
The police department of Springfield (the “City”) uses a promotion eligibility list to determine which officers can be promoted to sergeant. The list takes into account written and oral test scores, seniority and military service. The list is typically updated every two years but its life can be extended by a year. A list was due to be updated in October 2003 but was extended a year. At least one reason for the extension was to help one particular black officer (Ralph Harris) obtain a promotion. A few days before the new expiration date, the top three officers on the list were promoted, including Harris. Alan Jones, a white male, was fourth on the list. Once the new list was created, he dropped to twelfth place. He was not promoted until December 2006. Jones sued the City, claiming a violation of Title VII of the Civil Rights Act of 1964. He alleged that he was passed over for promotion because of his race. Jones conceded that there were no open positions but asserts that the City knew there would be a vacancy in a very short time and could have promoted him early – and would have promoted him early if he were black. The district court granted summary judgment to the City. Jones appeals.