EEOC Denies Agency's Request for Reconsideration

January 09, 2013

In Jefferson, et al. v. Social Security Administration, Request Nos. 0520110501, 0520110502, 0520110499, the Office of Federal Operations (OFO), EEOC, denied the agency's request for reconsideration of the Commission's decision finding that the agency had breached its settlement agreement and ordering specific performance in the form of substantial retroactive awards.

In 1998, the Commission certified a class of African American males employed at the Social Security Administration Headquarters, who, on or after June 23, 1995, were not selected or promoted, or who were otherwise subjected to disparate treatment in regard to performance appraisals, awards, bonuses, and disciplinary actions.The class was later expanded to include those who worked at Headquarters on or after January 1987.On January 11, 2002, the class and the agency entered into a settlement agreement, and, on June 11, 2002, the Administrative Judge (AJ) found that the agreement was fair, adequate, and reasonable to the class as a whole.

As part of the agreement, the agency agreed that its policies for granting performance awards and quality step increases would be fair and equitable, consistent with merit principles, and that it would correct any misapplications of such policies in order to achieve a fair application.The parties also agreed to establish an oversight committee to monitor the implementation of the settlement agreement.Finally, the agreement provided that the oversight committee could require the agency to collect data and compile reports and could request the services of an expert to analyze such data or reports.The agency also agreed to provide "in-house statistical and economical analyses for this purpose."

On June 9, 2006, the class filed a motion for enforcement, alleging, among other things, that the agency had failed to provide a complete statistical analysis. On July 13, 2006, the agency provided a statistical analysis regarding the treatment of African American males since 2003.On September 8, 2006, the agency's commissioner found that the analysis showed that class members were underrepresented in a few categories.In March 2007, the class requested that the AJ rule on the motion, alleging that the agency had not proposed a plan to remediate the disparity that the agency's commissioner had found.The AJ denied the motion on the grounds that the agency had presented a statistical analysis and the agency's commissioner had presented a plan to address the concerns raised by his findings.The class appealed the AJ's decision denying its motion for enforcement, which gave rise to Jefferson, et al. v. SSA, Appeal Nos. 0120081816, 0120081817, 0120081818 (April 21, 2011).

In its brief on appeal, the class contended that the agency had breached the settlement agreement by not ensuring that its policies for granting performance awards and quality step increases would be fair and equitable and consistent with merit principles, as well as by not correcting the misapplication of such policies.The Commission found that the agency had breached the settlement agreement and found that all members of the class who had been employed by the agency from April 2003 to September 2005, were presumptively entitled to the average honor award, monetary award and quality step increase received during the relevant time.The Commission noted, however, that the agency could rebut this presumption by showing by clear and convincing evidence that the employee was not entitled to relief.

The agency timely filed its request for reconsideration arguing that the Commission lacked the authority to order relief for a breach of a settlement agreement, and that it had failed to follow regulatory requirements which allow for independent processing of post-settlement allegations of discrimination. The OFO, noting that the agency's arguments had already been raised on appeal, agreed with the Commission that the agency had breached the settlement agreement as alleged by the class.The OFO also found that the agency had not established that the prior decision would have a substantial impact on the policies or operations of the agency or that the prior decision involved a clearly erroneous interpretation of material fact or law.Thus, the OFO denied the agency's request for reconsideration and ordered the agency to comply with the Commission's orders and to request that an administrative judge be appointed to oversee the substantial monetary relief awarded.

* This information is provided by the attorneys at Passman& Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com