U.S. Judge Dismisses Free Speech/Free Press Claim

The Selection Officer for the SSA says one reason he didn’t hire the plaintiff (me) is because she (I) wrote an employment law blog on workplace abuse.

Chief U.S. District Judge Miranda Du of Nevada this week dismissed a claim in a lawsuit that I filed against the Social Security Administration (SSA), after it rejected me for a job for which I was superbly qualified in the aftermath of the Great Recession (2011).

A novice SSA Selection Officer said one reason he didn’t select me for hire was because he thought my fledgling employment law blog, When the Abuser Goes to Work, was a “red flag” and he was concerned I might one day question his management skills.

I began the blog as a public service in connection with my book, Surviving Bullies, Queen Bees & Psychopaths in the Workplace. The blog, syndicated by Newstek, is legally and unquestionably a work of journalism.

The shocking age discrimination I experienced when I applied for the SSA job in Reno, NV, in the waning days of the Great Recession, prompted me to research age discrimination and write my groundbreaking book, Betrayed: The Legalization of Age Discrimination in the Workplace.

A few tibits – 26 applicants (all but one under the age of 40) responded to a ridiculously narrow recruitment for five attorney vacancies. I found out about the vacancies by chance when I saw an announcement on USAJobs for a different job at the Reno office. The SSA repeatedly tried to hire five candidates under the age of 40 but was thwarted when candidates rejected job offers. The ninth selectee was the only other candidate over the age of 40 (a 47-year-old male).

The SSA says the candidates were hired based on “personality” and “cultural fit.”

In 2019, Judge Du dismissed the entire case, calling it futile, and issued her ruling with prejudice (barring me from refiling the case).

The Ninth Circuit

I filed an appeal with the Ninth Circuit Court of Appeals in San Francisco, which in 2021 reinstated my claim of systemic age discrimination, finding it “plausible,” and remanded the case back to Judge Du.

EEOC “Leadership” Says No Need for Code of Judicial Ethics

The EEOC has defended the fact that it does not require EEOC judges to follow any code of judicial ethics.

In response to an ethics complaint, EEOC Associate Legal Counsel Carol R. Miaskoff ruled last month that EEOC judges are mere attorneys and not judges at all. “Because judicial standards do not apply, they could not have violated these rules,” states Miaskoff.

EEOC spokesperson Christine S. Nazer Friday rejected the premise that lack of a judicial ethics code is problematic. “EEOC leadership feels its judges should be fair, impartial, and follow the law, and all evidence suggests that this is exactly what happens in our federal sector decision-making process,” she said.

Nazer said Acting EEOC Commissioner Victoria Lipnic declined to answer questions, such as the following:

Is Miaskoff is correct? Her ruling appears to be directly contrary to the ABA Model Code of Judicial Conduct for Federal Administrative Law Judges and the American Bar Association’s Model Code of Judicial Conduct.
What about evidence showing that EEOC judges are not fair or impartial and do not follow the law, especially in cases involving age discrimination in hiring.

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The EEOC’s Analytical Framework Has a Hole

The EEOC has articulated an “analytical framework” for proving cases of intentional discrimination (also known as disparate treatment discrimination).

Unfortunately, the framework has a crater-sized hole – the Judge.

In a decision that recently was upheld by the EEOC Office of Federal Operations (OFO), an Administrative Law Judge (ALJ) dismissed a 2011 age discrimination complaint involving a failure to hire by an agency of the Social Security Administration. There was clear evidence of collusion to cover-up of age discrimination by the hiring officer and his assistant, undisputed proof of interference by SSA attorneys in the investigation of the case by the Equal Employment Opportunity Officer in clear violation of EEOC policy, and the novice, untrained hiring officer admitted that he based his selections entirely on subjective criteria and completely ignored the complainant’s superior qualifications. The judges agreed with the SSA that the hiring officer was within his rights to hire candidates that he deemed a good fit for the SSA’s “culture.” Specifically, the OFO upheld the ALJ’s ruling that reliance on subjective criteria is “appropriate and necessary when the selection, as here, involves the consideration of collegial, professional, teamwork and administrative abilities that do not lend themselves to objective measurement.”

The law and EEOC rules instruct employers to hire candidates based upon neutral and objective job-related criteria so as to avoid subjective decisions based on personal stereotypes or hidden bias.

Considerable research shows that hiring officers suffer from implicit bias and ageist stereotypes – what about judges?

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