Clifford v. Barnhart

United States Court of Appeals
For the First Circuit

No. 05-2437

PETER R. CLIFFORD,

Plaintiff, Appellant,

v.

JOANNE B. BARNHART, COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, U.S. District Judge]

Before

Torruella, Lynch and Howard,
Circuit Judges.

James G. Noucas, Jr., with whom Noucas Law Office was on
brief, for appellant.
Evan J. Roth, Assistant United States Attorney, with whom
Paula D. Silsby, United States Attorney, were on brief, for
appellee.

June 9, 2006
 TORRUELLA, Circuit Judge. This is an appeal from a grant

of summary judgment in favor of Joanne B. Barnhart, Commissioner of

the Social Security Administration ("SSA"), and against Peter R.

Clifford ("Clifford") on his employment discrimination claims.

Clifford contests the district court's determination that he failed

to generate a triable issue that SSA's decision not to hire him for

certain positions was motivated by discriminatory animus. After

careful consideration, we affirm.

I. Background

From July 1974 to December 1995, Clifford worked for SSA

as a Social Insurance Representative, a Quality Review Specialist,

a Supervisory Quality Review Specialist, a Manager of Quality

Assurance, and a Field Representative. In December 1995, however,

Clifford left SSA on disability retirement due to a neurological

disease that limited his ability to perform repetitive hand

functions, such as computer keyboarding.

Despite his retirement, in 1999 and 2000, Clifford

applied for three positions within SSA -- Metropolitan Public

Affairs Specialist ("MPAS"), Management Support Specialist ("MSS"),

and Social Insurance Specialist ("SIS"). However, he was not

selected for any of these positions. Believing that his non-

selection was due to either age or disability discrimination,

Clifford filed a number of administrative Equal Employment

Opportunity ("EEO") claims with SSA. These claims were denied.

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 On November 10, 2003, Clifford filed a complaint in the

United States District Court for the District of Maine, alleging

discrimination based on age and disability pursuant to the Age

Discrimination and Employment Act of 1967, 29 U.S.C. §§ 621-634,

and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796.1

Specifically, Clifford alleged that those who were selected for the

three jobs he desired were substantially younger than him and not

disabled. Clifford alleged that SSA's selecting officials made

their decisions because the selectees had "current" [i.e., up-to-

date] knowledge or experience. However, according to Clifford,

current knowledge or experience was not included as a condition or

criterion in the vacancy announcements for the positions. Clifford

alleged that the only reason he lacked current knowledge and

experience was his disability retirement from SSA in December 1995.

However, given his long history of SSA employment, Clifford

asserted that the agency could have provided him with training to

"accommodate" his lack of current knowledge and experience. On

that basis, Clifford claimed that his non-selection amounted to age

and disability discrimination.

On January 15, 2004, SSA filed an answer that denied

Clifford's discrimination allegations. The same day, the agency

1
As an applicant for federal employment, Clifford was entitled to
protection from discrimination based on his disability under the
Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796. Calero-Cerezo v.
United States Dep't of Justice, 355 F.3d 6, 11 n.1 (1st Cir. 2004).

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filed a motion for summary judgment based on the affidavits

generated in the EEO administrative process from the two officials

at SSA who were responsible for hiring employees for the positions

Clifford desired, Patricia Biggers ("Biggers") and Lawrence DuBois

("DuBois") (collectively "selecting officials").2 The EEO

affidavits detailed the selection process for the three positions

for which Clifford applied. DuBois and Biggers discussed the

factors they were looking for in selecting people for the positions

-- for example, an awareness of current programs and policies,

previous service, technical qualifications, the neatness and

accuracy of application packages, and reasons for applying for the

job. They also discussed the number of applicants and the

selection process as a whole.

On February 5, 2004, Clifford opposed SSA's motion for

summary judgment on the grounds that discovery was necessary to

determine whether SSA's decisions were motivated by discriminatory

animus. Pursuant to Fed. R. Civ. P. 56(f), Clifford's attorney

proffered an affidavit that discovery was needed regarding (1)

whether SSA procedures, policies, and programs changed dramatically

between the time Clifford left SSA and applied for the three

positions; (2) what, if any, training Clifford would need to assume

any of the positions; and (3) the credibility of the selecting

2
Biggers was the selecting official for the SIS position, and
DuBois was the selecting official for both the MPAS and MSS
positions.

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officials. Clifford also included excerpts from the EEO

Investigative Report, including an unsworn letter from current SSA

employee Norman Linden ("Linden") regarding his view that SSA

should have hired Clifford.

On August 13, 2004, the district court entered an order

denying SSA's motion for summary judgment without prejudice to its

being refiled after discovery. The court concluded that Clifford's

affidavit satisfied the requirements of Fed. R. Civ. P. 56(f) and

that the court would be acting "too hastily" if it were to rule on

summary judgment without the benefit of discovery.

Both parties thereupon continued with discovery, during

which a number of additional depositions were taken (including

those of Clifford, Biggers, DuBois, and Linden). In these

depositions, three important facts relevant to this appeal were

revealed. First, with limited exception, SSA had a practice of

using internal merit promotions to fill higher level positions.

Second, selecting officials were supposed to choose a candidate

from the so-called "best qualified" list, made up by human

resources specialists using a scoring system. Scores, however,

were not provided to the selecting officials and were not used to

make hiring decisions. Third, selecting officials valued current

knowledge and experience in potential employees, because "things

are changing regularly [at SSA]." During the course of these

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additional depositions, Clifford abandoned his age discrimination

claim.

On March 24, 2005, after the close of discovery, SSA

again moved for summary judgment, based on the same EEO affidavits

from DuBois and Biggers that formed the basis of its 2004 summary

judgment motion. SSA explained in its 2005 motion:

The Complaint asserts discrimination
(Complaint ¶ 23). In this case, however, the
Social Security Administration has proffered
legitimate, non-discriminatory reasons for
Clifford's non-selection in each of the three
positions at issue. With respect to all three
positions, the Social Security Administration
was seeking to hire someone with current
experience who could begin the job immediately
without the need for training or preparation.
Those criteria were important because the
Social Security Administration's systems and
procedures had changed significantly since the
time Clifford was last employed in 1995. The
selecting officials exercised their judgment
and decided that the other applicants were
superior to Clifford.

On April 28, 2005, Clifford opposed this summary judgment

motion with three primary arguments. First, he argued -- for the

first time -- that SSA was liable for "disparate impact"

discrimination on the grounds that SSA relied on a facially neutral

employment practice that resulted in a disproportionately negative

impact on a protected group. According to Clifford, "[b]ecause the

SSA virtually always fills such higher grade positions through

internal promotion, it systematically excludes qualified non-

current employees, such as the plaintiff, from employment

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opportunities for which [they are] qualified." Second, Clifford

argued -- also for the first time -- that SSA was liable for making

"prohibited inquiries and disclosures" regarding his disability,

contrary to 42 U.S.C. § 12112(d). Although Clifford had

affirmatively applied for the SSA positions under the permissive

hiring authority for disabled individuals known as "Schedule A," he

nevertheless argued that SSA violated § 12112 by informing the

selecting officials that he was eligible for hire under Schedule A.

Third, Clifford argued that SSA's selecting officials improperly

relied on his lack of "current" SSA experience and ignored the fact

that he received high scores in the pre-qualifying round that was

used to generate the "best qualified" list.

On May 16, 2005, SSA replied to each argument. First,

SSA argued that Clifford's new "disparate impact" allegation was

procedurally barred because Clifford failed to assert it at the EEO

level, in his federal court complaint, or in response to SSA's 2004

motion for summary judgment. Second, SSA argued that Clifford's

new statutory claim was not only procedurally barred, but that it

misconstrued the meaning of 42 U.S.C. § 12112(d)(2)(B), which

actually authorizes federal agencies such as SSA to inform

selecting officials that a candidate is eligible for hire under

Schedule A. Third, SSA pointed out that Clifford had still failed

to offer any evidence of discriminatory animus on account of

disability.

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 On June 28, 2005, the magistrate judge to whom the case

had been referred issued a decision recommending summary judgment

in favor of SSA because (1) Clifford failed to exhaust his

administrative remedies or otherwise give notice of any "disparate

impact" claim; (2) Clifford likewise failed to properly raise any

§ 12112(d) claim, but even if he had, there was no evidence to

support a violation; and (3) SSA's hiring decisions were based on

legitimate non-discriminatory reasons about which Clifford failed

to generate a triable issue of discriminatory animus (i.e.,

Clifford failed to show that he was the victim of disparate

treatment).

On August 9, 2005, the district court affirmed the

magistrate judge's recommended decision and granted SSA's motion

for summary judgment. On August 10, 2005, the district court

entered final judgment in favor of SSA.

In this appeal, Clifford is not contesting the district

court's rejection of his claims of disability discrimination based

on disparate impact or prohibited inquiries and disclosures.

Clifford limits his appeal to his claim of disability

discrimination based on disparate treatment.

II. Discussion

A.

This Court reviews the decision of the district court to

grant summary judgment de novo. Vélez-Rivera v. Agosto-Alicea, 437

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F.3d 145, 150 (1st Cir. 2006). Summary judgment is appropriate

only if the record shows "that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c). "A factual issue is

genuine if it may reasonably be resolved in favor of either party

and, therefore, requires the finder of fact to make a choice

between the parties' differing versions of the truth at trial.

Material facts are those that possess the capacity to sway the

outcome of the litigation under the applicable law." DePoutot v.

Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005) (internal citations

and quotation marks omitted).

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

that burden is met, a 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. Nicolo v. Philip Morris,

Inc., 201 F.3d 29, 33 (1st Cir. 2000). 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." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1,

2 (1st Cir. 1999) (citation and internal quotation marks omitted);

see also Fed. R. Civ. P. 56(e). "[A]s to any essential factual

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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 quotation marks omitted).

B.

In a recent case, Quiñones v. Buick, 436 F.3d 284 (1st

Cir. 2006), we discussed the framework applicable to this case:

[E]mployment discrimination cases alleging
disparate treatment ordinarily proceed under
the three-step, burden-shifting framework
outlined in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668
(1973), and further explained in Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248,
101 S. Ct. 1089, 67 L.Ed.2d 207 (1981), St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113
S. Ct. 2742, 125 L.Ed.2d 407 (1993), and
Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 120 S. Ct. 2097, 147 L.Ed.2d 105
(2000). First, the plaintiff must make out a
prima facie case of discrimination. The
burden then shifts to the defendant to present
a legitimate, non-discriminatory reason,
sufficient to raise a genuine issue of
material fact as to whether it discriminated
against the employee, for the employment
decision. Finally, the burden is placed on
the plaintiff to demonstrate that the
non-discriminatory reason is mere pretext and
that the real reason was discrimination.
McDonnell Douglas, 411 U.S. at 802, 93 S. Ct.
1817; see also St. Mary's Honor Ctr., 509 U.S.
at 510-11, 515-16, 113 S. Ct. 2742.

Quiñones, 436 F.3d at 289.

In this case, SSA's motion for summary judgment did not

specifically challenge Clifford's ability to establish the elements

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of a prima facie case of discrimination regarding his non-

selection. Those elements are (1) that Clifford is a member of a

protected class; (2) that Clifford applied for an open position

with SSA; (3) that Clifford was not selected; and (4) that the

employer hired another individual with similar qualifications. See

Gu v. Boston Police Dep't, 312 F.3d 6, 11 (1st Cir. 2002). SSA's

motion argued instead that its hiring decisions were based on

legitimate, non-discriminatory reasons. With this argument, any

presumption of discrimination was dispelled, and the burden was on

Clifford to generate a material issue that disability

discrimination was a determinative factor in the hiring decisions.

The district court, however, found that Clifford failed to generate

a triable issue that his non-selection was motivated by

discriminatory animus. As a result, it granted summary judgment in

favor of SSA. In this appeal, Clifford contests this decision by

the district court, contending that he did in fact generate a

genuine issue of material fact that disability discrimination was

a determinative factor in SSA's hiring decisions. He offers before

us six separate arguments as to how he satisfied his burden. We

address each in turn.

1. The use of an illegitimate rationale

Clifford's first argument relates to one of the reasons

proferred by SSA for his non-selection -- namely, the fact that he

did not have "current" knowledge or experience. He contends that

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SSA's use of such a reason is illegitimate. He states that current

knowledge and experience were not necessary for performing the jobs

at issue, and it is unlawful for a federal agency to use standards

or criteria which are not job-related and consistent with business

necessity and which have the effect of discriminating on the basis

of disability. See 29 C.F.R. § 1630.7. That current knowledge and

experience were not job-related and consistent with business

necessity is evident from the fact that such criteria were not

included in SSA's vacancy announcements.

We reject this argument. We think that the requirements

of current knowledge and experience were included in the vacancy

announcements, albeit implicitly. Each vacancy announcement

expressly limited the "Area of Consideration" to "SSA employees

Regionwide" and those already "serving under Schedule A," which by

definition limited consideration to current employees. Such

employees, simply by virtue of their current positions at SSA, had

the required current knowledge and experience. Thus, there was no

need to explicitly list "current knowledge and experience" in the

vacancy announcements. By limiting the open positions to current

employees, SSA in effect made "current knowledge and experience"

requirements for the jobs. It was entirely proper then for Biggers

and DuBois, the two selecting officials for the positions Clifford

desired, to consider whether Clifford did in fact possess the

necessary current knowledge and experience.

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 Even if current knowledge or experience were not included

in the vacancy announcements, SSA's selecting officials were not

bound to make hiring decisions based on the criteria and

qualifications set forth in those announcements. The selecting

officials were permitted to take into account other factors that

they thought would be relevant to the advertised positions.

Indeed, we think it would be nonsensical to conceive of the vacancy

announcements as an exhaustive list of each and every factor that

the selecting officials would take into consideration. If the

selecting officials were presented with two applicants who both met

all of the listed criteria for a given position, the selecting

officials would still have to make a decision in the end by relying

on other, unspecified criteria. That selecting officials rely on

such unspecified criteria does not mean that they are

discriminating against the applicant who ultimately proves

unsuccessful. Thus, in this case, Biggers and DuBois would have

been entirely within their rights had they evaluated applicants'

current knowledge and experience despite the absence of such

requirements in the vacancy announcements.

Moreover, the consideration of applicants' current

knowledge and experience was not something that Biggers and DuBois

snatched out of thin air. Such criteria were clearly job-related

and consistent with business necessity. Both Biggers and DuBois

noted that Social Security programs change often. As a result,

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they wanted to ensure that the applicants they selected were aware

of current programs, policies, systems, and services, and not

programs, policies, systems, and services that had been in effect

in years past. They also wanted to make sure that the selectees

had current knowledge and experience because no training programs

would be provided, and little preparation time would be provided to

the selectees to help them become accustomed to their new

positions.

This is not a case in which, for example, SSA told

Clifford that he was not hired because he did not wear a purple

sweater to the interview. Such a proffered reason by SSA could

certainly be seen as pretext masking discrimination, as such a

requirement would have no obvious connection to Clifford's ability

to do his job or to SSA's ability to function as an effective

organization. Clifford's current knowledge and experience, by

contrast, are clearly relevant to his ability to work in the

positions he desired, and we do not see how the use of such factors

in determining Clifford's non-selection constitutes an attempt by

SSA to disguise discrimination.

2. Scope of Clifford's current knowledge and experience

Clifford's second argument is related to his first. He

contends that if current knowledge and experience were indeed

requirements for the positions he sought, the knowledge and

experience that he possessed were more than sufficient. To

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demonstrate that he did possess the necessary current knowledge and

experience, Clifford points to his high scores in the scheme

utilized by human resource specialists at SSA to numerically rank

applicants for a place on SSA's "best qualified" list.

We, however, think that these scores are of limited

utility. The scores were compiled by human resources specialists

solely to compile the "best qualified" list and were based solely

on the representations contained in each applicant's application

papers.

In MacDonald v. Cohen, 233 F.3d 648 (1st Cir. 2000), we

held that "[t]here is nothing suspicious about a selecting official

deciding that although [a plaintiff] was qualified at the screening

stage, a close look at his qualifications at the selection stage

did not justify his promotion." Id. at 652. DuBois himself noted

that his own closer look at Clifford's qualifications, going beyond

the numbers (to which, in any event, he was not privy), was a

decisive factor in his decision to bypass Clifford in the selection

process. He explained:

I believed that Mr. Clifford lacked the
current knowledge and experience needed. I do
not recall if it was on his application or
not, but I was aware that Mr. Clifford has
been representing SSA claimants at hearings.
However, this is an activity with limited
scope and does not entail knowledge of the
full range of day-to-day operations in SSA
field offices. The MPAS position requires
knowledge of the disability, retirement and
Supplemental Security Income Programs; our
service delivery methodologies, our systems

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 issues, etc. Mr. Clifford's advocacy activity
had a much narrower focus.

Thus, the high scores assigned to Clifford during the initial

screening process do little to show that Clifford possessed the

current knowledge and experience required of applicants.

Accordingly, Clifford has failed to show that SSA's disregard of

these scores mandates an inference of discrimination.

3. Relative qualifications

Third, Clifford argues that he was more qualified than

the selectees in many significant ways. This argument likewise

proves unavailing. Even if Clifford was more qualified than the

selectees in certain ways, SSA was entitled to assess each

applicant and decide which applicant presented the best application

as a whole. Although one applicant may have had impressive

credentials in one specific area, he may have turned out to be

deficient in another area. It was SSA's prerogative to hire the

applicant who presented the best combination of skills. In the

past, we have held that it is not the role of the court "to

second-guess the business decisions of an employer, imposing our

subjective judgments of which person would best fulfill the

responsibilities of a certain job." Rossy v. Roche Prods., Inc.,

880 F.2d 621, 625 (1st Cir. 1989).

In the comments of DuBois, we see that it was the hope of

finding the well-rounded candidate that guided him during the

selection process. After mentioning the particular deficiencies of

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Clifford's application, cited above, DuBois goes on to state the

following about Robert Clark, his selectee for the MPAS position:

Mr. Clark, the selectee, has had primary
responsibility for the public affairs program
in the Portland service area for many years.
He is an extraordinarily astute technician who
was often called upon by his peers and by
management as a technical resource for policy
and systems issues. He is a former supervisor
who brings the management point of view and
flexibility to this position. In short, I
considered him the perfect candidate.

In other words, Clark presented a combination of skills that was

attractive to DuBois. Clark had technical ability, supervisory

experience, and an extensive background in the subject area. Thus,

the fact that Clifford may have excelled in certain areas is

insufficient to compel us to find that he was entitled to the job,

especially when there were other candidates such as Clark, who

presented a more extensive set of credentials.

4. Biggers's explanations

In his fourth argument, Clifford focuses on the

particular explanations proffered by Biggers as to why she did not

select Clifford for the SIS position. He argues that she was

inconsistent in a number of ways. First, he points to her

testimony in her EEO Declaration and her deposition. In the

former, she stated that Clifford did not have the requisite

experience with current automated and programmatic systems. In the

latter, however, when asked if she eliminated Clifford from

consideration because of his lack of current knowledge and

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experience, she replied, "Not true entirely. He was eliminated

before we got to that point." As a result, Clifford states that

Biggers was inconsistent in considering his knowledge and

experience.

We, however, do not find any inconsistency. Although she

had said in her EEO Declaration that Clifford did not have current

knowledge and experience, she did not indicate that that particular

deficiency was the decisive factor that eliminated him from her

consideration. In her deposition testimony, she indicated that

Clifford's lack of current knowledge and experience had nothing to

do with her rejection of Clifford's application. She noted that

Clifford had been eliminated from consideration before any

consideration had been given to Clifford's current knowledge and

experience.

Second, Clifford argues that Biggers "exalted form over

substance" when considering his application. In making this

argument, Clifford is referring to Biggers's statement that one of

the reasons she did not select Clifford for the SIS position was

the fact that his application was messy and filled with scatch-

outs. Clifford contends that to Biggers, the appearance of the

application -- in Clifford's eyes, a matter of "form" -- was an

essential factor in selecting an employee, even more so than one's

past experience working for SSA. He also argues that when

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evaluating his "form," Biggers did not make any allowance for the

fact that Clifford's disability affected his handwriting.

We reject both of these claims. Regarding Clifford's

argument about Biggers elevating form over substance, we think that

the appearance of one's application is as much about substance as

form. The neat appearance of an application reflects the

substantive ability of a potential employee to put his "best foot

forward" on behalf of an organization. Clifford's other argument

is likewise without merit. Clifford argues that "[a]lthough

Biggers was aware of Clifford's disability, she did not make any

accommodation for the fact that Clifford's disability affected his

handwriting." We do not see, however, how Biggers could have made

any such accommodation, as we can find no evidence that Biggers

knew that Clifford had a disability that affected his handwriting

in particular. See Estades-Negroni v. Assocs. Corp. of N. Am., 377

F.3d 58, 64 (1st Cir. 2004) (noting that "[a]n employer need not

provide accommodations where it does not know an employee has a

disability").

Third, Clifford contests Biggers's ability to accurately

assess what experience was needed for the job, as she did not have

the technical background necessary to properly assess applicants

for the position. Regardless of whether Biggers did in fact have

the technical background Clifford claims was required, she was the

one assigned by SSA officials to evaluate the applicants for the

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SIS position. If she was in fact deficient in certain technical

skills -- a proposition we are not at all certain of -- and she was

unable to assess the applicants' respective technical abilities in

the evaluation process, this was likely true of her evaluation of

all applicants, and not just Clifford. Thus, we fail to see how

Clifford can prove discrimination by pointing to potential

deficiencies in Biggers's background.

In his final iteration of this particular argument,

Clifford contends that in Biggers's eyes, there was just one factor

that distinguished him from the other applicants: his disability.

He states that because he was the only one capable of meeting

Biggers's avowed objective of hiring an applicant who could start

on the job with little training, his non-selection was clearly the

result of his disability. Clifford, however, makes several

erroneous assumptions in this argument. Biggers was aware of many

factors that distinguished Clifford from the other applicants. For

example, as discussed above, she took issue with the fact that

Clifford's application was not presented as neatly as those of

other applicants. His application was messy and filled with

scratch-outs. She also found it difficult to follow Clifford's

application with respect to his work history, as the dates were

unclear. Moreover, Biggers noted that during his interview,

Clifford made inopportune comments about how he wanted SSA to re-

hire him so that he could earn more credit toward his federal

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retirement, as opposed to emphasizing what he had to offer the

agency.

Clifford also makes an erroneous assumption in contending

that he was the only applicant who was able to start on the job

with little training. In fact, the two individuals that Biggers

eventually selected for the SIS positions were clearly able to

start work with minimal training, since, as the district court

found, they both were current SSA employees with a working

knowledge of current systems and procedures and both had recently

performed the same type of duties that would be supervised as part

of the SIS position. Given these erroneous assumptions, we decline

Clifford's invitation to find in Biggers's actions an inference of

discriminatory animus.

5. DuBois's explanations

In Clifford's fifth argument, he attacks not the

explanations proffered by Biggers, but by DuBois. Specifically,

Clifford focuses on two factors. First, he notes that DuBois

stated that he did not select Clifford because of his lack of

current knowledge and experience. Clifford argues that this could

not have been DuBois's real reason, as Clifford had been rated

"Superior" in his "Knowledge of SSA Policies and Procedures,

Objectives, and Programs." Second, Clifford points to how DuBois

had articulated in the past a desire to encourage disabled

individuals to return to work by hiring them for positions with the

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SSA and how DuBois did in fact demonstrate his commitment toward

employing disabled workers. Clifford, however, states that

DuBois's commitment was a limited one, as he only hired disabled

workers for lower grade positions. Clifford argues that given his

high scores and extensive previous work experience, DuBois's

decision not to hire him demonstrates definitively that DuBois had

an inherent bias toward hiring disabled people for higher grade

positions at SSA.

We reject these arguments. First of all, as we discussed

above, Clifford's scores are largely irrelevant for the purposes of

this appeal. The scores were assigned by human resources officials

solely for the purpose of compiling a "best qualified" list.

DuBois could easily have found that despite his high scores

Clifford did not have the current knowledge and experience required

for the jobs for which he had applied.

Second, although DuBois did say that Clifford lacked

current knowledge and experience, he also advanced another reason

that Clifford was not hired -- namely, because the positions

Clifford had applied for were only to be made available to current

SSA employees. As the district court found, DuBois was "adamant"

that Clifford should not have been included in the list of eligible

people for either the MPAS or MSS position because DuBois only

wanted these positions advertised internally. The fact that

Clifford was not a current SSA employee was almost certainly the

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decisive factor in DuBois's decision. That DuBois used such a

criterion, however, does not demonstrate that DuBois had an

inherent bias against hiring disabled people for higher-grade

positions at SSA. DuBois, rather, had an inherent bias toward

hiring non-current employees for the higher grade positions,

whether applicants were disabled or not. DuBois himself stated in

his EEO affidavit that he "never hired Grade 12 [GS-12, a high

grade] from outside" SSA. He never said that such a limiting

factor in his hiring decisions was limited to disabled individuals.

Further, Clifford himself conceded on summary judgment that SSA

"virtually always fills such higher grade positions through

internal promotion" of current employees. Thus, as the district

court correctly explained, SSA's preference for internal promotion

of employees does not suggest that its hiring decisions were

motivated by disability discrimination. See Clifford v. Comm'r,

Soc. Sec. Admin., No. Civ. 03-193-B-W, 2005 WL 1532636, at *9 (D.

Me. June 28, 2005) (noting that "[Clifford's] contention does

nothing to demonstrate discriminatory animus toward Clifford based

on his disability, only favoritism toward current employees"). Put

another way, SSA discriminates, but it does so based on "current

employee" status, not on disability. Accordingly, we find that

Clifford's argument on this point has no merit.

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 6. Institutional bias

In his sixth, and final, argument, Clifford expands the

second part of his previous argument, contending that not only

DuBois, but also SSA as an organization, maintained an inherent

bias against hiring disabled persons in the higher grade positions.

According to Clifford, being labeled as "disabled" in such an

environment stigmatized him and denied him the opportunity to

freely and fairly compete for the higher grade positions.

Clifford, however, has not shown the truth of his

threshold assumption -- namely, that SSA has an institutional bias

against hiring disabled persons for higher grade positions. In

support of his argument, Clifford cites to the statements of DuBois

and Cathleen Allen, who worked as a Human Resources Specialist at

SSA from 1998 to 2004. Allen stated that "99.9%" of hires or

appointments to GS-11 or higher are "all internal merit

promotions." DuBois similarly noted that he "never brought a

higher grade person in off the street." As discussed above,

however, such statements evidence not a bias against hiring

disabled individuals for higher grade positions, but rather a bias

against hiring for those positions people who were not current

employees at SSA, whether disabled or not. Therefore, even if

Clifford was set apart from the other candidates in the applicant

pool as a result of his disability, it was not that infirmity that

disqualified him for the jobs he sought. Rather, it was the fact

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that he was not a current employee of SSA when he applied for those

higher grade positions. As a result, this claim fails as well.

III. Conclusion

For the reasons expressed herein, the decision of the

district court granting summary judgment on behalf of SSA is

Affirmed.

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