United States District Court, E.D. New York
JULIA V. PENALVER, Plaintiff,
SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM & ORDER
DONNELLY, UNITED STATES DISTRICT JUDGE.
March 26, 2019, the pro se plaintiff filed a complaint
against the Social Security Administration alleging that it
retaliated against her for filing a 2013 complaint alleging
discrimination. (ECF No. 1 at 10-14; ECF No. 16 at
On July 12. 2019, the defendant moved to dismiss the
complaint (ECF No. 9), which the plaintiff opposed in a
series of letters (ECF Nos. 14-16). For the reasons discussed
below, the plaintiffs complaint is dismissed.
plaintiff began working for the Social Security
Administration in the Office of Hearings and Appeals in 1985.
(ECF No. 1 at 8.) Over the next fifteen years, the plaintiffs
managers promoted her several times and recognized the
quality of her work with awards, bonuses, and positive
performance reviews. (Id. at 9.) In 2001, the
plaintiffs managers promoted her to a paralegal specialist, a
position she held until 2008. (Id.) As a paralegal
specialist, the plaintiff assisted Administrative Law Judges
in reviewing records and drafting opinions. (Id.)
2008 to 2010, the plaintiff held a temporary supervisory role
in which she managed decision writers, including paralegal
specialists and attorneys. (Id.) Although the
defendants commended the plaintiffs performance, they did not
select her to be a permanent supervisor, and she resumed her
job as a paralegal specialist. (Id. at 9-10.) On
July 8, 2013, the plaintiff filed a Title VII complaint in
this Court alleging that the Social Security Administration
did not award her the permanent supervisor position in
retaliation for her prior complaints to the EEOC and her
cooperation with EEOC investigations. (ECF No. 16 at 3,
Penalver v. United States of America,
plaintiffs supervisors started criticizing her work in
February of 2014, during the settlement negotiations. (ECF
No. 1 at 10.) Deborah Williams, the plaintiffs immediate
supervisor, told her that her performance was suffering and
that she would be placed on "100 percent quality
review," which meant that supervisors would edit her
work before it was given to the ALJs. (Id.) Ms.
Williams told the plaintiff that her supervisor, Jamie
Hanlon, mandated the quality review. (Id.) The
parties settled the lawsuit in March of 2014.
November of 2014, Ms. Hanlon assigned the plaintiff a new
direct supervisor, Megan Wada. (Id. at 11.) Although
they had worked together for less than two months, Ms. Wada
gave the plaintiff a poor performance review in which she
described the plaintiff as "combative."
(Id.) The plaintiff was offended by the description,
and asked Ms. Wada to remove it from the file, but Ms. Wada
refused. (Id.) Six months later, in May of 2015, Ms.
Wada placed the plaintiff on a performance assessment plan,
which restricted her from working directly with ALJs and from
working overtime for pay. (Id. at 12.) Ms. Wada also
assigned the plaintiff a mentor-which the plaintiff had
requested in the past-but required that all communications
between the plaintiff and her mentor pass through Ms. Wada.
the performance assessment plan ended in 2016, the plaintiffs
work continued to undergo quality review and she was still
unable to work overtime for pay. (Id.) On occasion,
the plaintiff bypassed the quality review protocol and gave
her drafts directly to the ALJs, who finalized them with
minimal changes. (Id. at 12-13.) But for the most
part, the plaintiff complied with the quality review program,
which resulted in a backlog of her assignments because of the
multiple rounds of edits. (Id.) The ALJs held the
plaintiff responsible for the backlog, which caused her
stress and frustration. (Id. at 13.) The plaintiffs
supervisors did not allow her time during the workday to use
the Employee Assistance Program, and they continued to
restrict her communications with her mentor and the ALJs.
(Id. at 12, 13.) At one point in 2016, Ms. Wada
wrote a note to another supervisor in which she described the
plaintiff as "learning disabled," a description
that upset the plaintiff greatly. (Id. at 13.) At
this point, the plaintiff was continuing her EAP counseling
outside of work to handle her emotional stress. (Id.
at 12, 13.) The plaintiff now sees a private therapist and
psychiatrist. (ECF No. 16 at 3.)
2016, the plaintiff filed a complaint with the Equal
Employment Opportunity Commission, alleging that the
defendants were harassing her in retaliation for her 2013
lawsuit. (Id. at 2.) In January of 2017, while the
complaint was pending, the plaintiff was terminated from her
job. (ECF No. 1 at 14.) The next month, the plaintiff,
through her union, requested arbitration pursuant to the
agency's negotiated grievance system to challenge her
termination as retaliation for her 2013 lawsuit. (ECF No. 16
at 6-7; see also ECF No. 10 at 16,
the same time, the plaintiff asked her lawyer to file a
complaint in federal court alleging that the defendants
harassed her at work, but directed him not to include any
facts or claims relating to her termination, because
"the union will be handling the termination." (ECF
No. 16 at 7.) The plaintiffs counsel filed her complaint on
March 10, 2017, before the Honorable Carol Bagley Amon,
captioned Penalver v. Social Security
Administration, 17-CV-01366. (ECF No. 11, Ex. 1.) The
complaint alleged that agency managers harassed the plaintiff
because of her age and in retaliation for her 2013 lawsuit.
(Id. ¶¶ 13-25.)
of 2018, the arbitrator denied the plaintiffs wrongful
termination challenge, finding that the agency did not
retaliate against her for filing the 2013 complaint and did
not harass her. (ECF No. 10 at 46-47 ("I believe that
the agency did not retaliate because the Grievant filed a
complaint with the EEOC. There were procedures in place,
before the claim was filed, to help the Grievant perform in a
timely manner. It is also my belief that the Grievant
misinterpreted those procedures put in place, by the Agency,
to be harassment.")) On August 30, 2018, the plaintiff
voluntarily dismissed her complaint before Judge Amon. (ECF
No. 11 at 21.) On March 12, 2019, the plaintiff, no longer
represented by an attorney, moved for reconsideration of her
voluntary dismissal before Judge Amon, claiming that her
attorney misled her into signing it. (Id. at 23-24.)
The Court denied her request. (Id. at 28-29.)
meantime, the plaintiffs pre-termination complaint alleging
retaliation wound its way through the EEOC. According to the
plaintiff, she received a Right-to-Sue letter in November of
2018, and filed this complaint-alleging that her managers
harassed her for filing the 2013 complaint-on March 26, 2019.
(ECF No. 16 at 5.)
evaluating a motion to dismiss must accept as true the
factual allegations in the complaint and draw all reasonable
inferences in the plaintiffs favor. Town of Babylon v.
Fed. Hous. Fin. Agency,699 F.3d 221, 227 (2d Cir.
2012). However, an action will survive only if the law
recognizes the claims, and if the complaint pleads
"enough facts to state a claim to relief that is
plausible on its face." BellAtl Corp. v.
Twombly,550 U.S. 544, 570 (2007). A claim is plausible
on its face when the plaintiff "pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal,556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at ...