SSA Class Action
JANUARY 2015 UPDATE
On January 21, 2015, the Administrative Judge held a status call on the Wilkerson and Jefferson matters.
In the Jefferson matter (SSA1), the Administrative Judge considered and denied SSA’s October 2014 motion to dismiss the case. Class counsel opposed this motion on November 3, 2014. Upon request of the AJ, the parties submitted additional argument on January 16, 2015. At the status call on January 21, 2015, the AJ agreed with the Class and indicated she will proceed with reviewing each side’s expert report and make a ruling as to how she will proceed to calculate the value of the awards to be paid out to class members (all black males employed at SSA Headquarters from April 1, 2003 to September 30, 2005). Once that ruling is made, a schedule will be set by the AJ for the payment proceedings, and for the agency to provide any evidence rebutting the class’s presumption of entitlement to such payments. Additionally, the AJ will set a schedule for determining whether SSA corrected the misapplication of its awards distributions after September 30, 2005. We requested an estimate from the AJ as to when these rulings would be made. The AJ stated that she unfortunately could not provide an estimate, however, she would do her best to make the rulings as expeditiously as possible.
In the Wilkerson matter, the parties continue with pre-certification discovery. Additional documents will be exchanged by both parties. The AJ held a discovery conference call on February 5, 2015, and resolved some remaining discovery disputes in favor of the Class. Depositions of executive management officials have been nearly completed. The depositions of the Class Agents are now being scheduled, likely to take place in early March. Fact discovery will close on March 16, 2015. The parties will then proceed to submit expert reports. After the submission of expert reports, the Class will move to have the Commission certify the Class.
DECEMBER 2014 UPDATE
Wilkerson v. SSA
The parties continue with pre-certification discovery. Depositions of executive management officials are taking place in December 2014.
AUGUST 2014 UPDATE
Wilkerson v. SSA (pre-certification discovery)
Since our last update, the Class has requested additional promotions data from the Agency, which is still forthcoming. The Agency has also requested additional information be provided by the Class Agents. Because of the need for additional discovery, AJ Palmer agreed to extend the deadline for fact discovery in Wilkerson to October 31, 2014. After that date, AJ Palmer will set deadlines for expert discovery and depositions in the Wilkerson matter.
MAY 2014 UPDATE
Jefferson v. SSA (breach compliance proceedings):
The parties have now provided their expert reports to AJ Palmer of the EEOC in Baltimore. The Agencys expert report was submitted on April 1, 2014. The Class responsive expert report was submitted May 15, 2014. The reports addressed each party’s respective opinions on how AJ Palmer should calculate the values of monetary, non-monetary, and other awards at SSA Headquarters for the period April 1, 2003-September 30, 2005, per the EEOC’s breach decision. The next step is for the AJ to review each side’s report and make a ruling as to how she will proceed to calculate the value of the awards to be paid out to class members (all black males employed at SSA Headquarters from April 1, 2003 to September 30, 2005). Once that ruling is made, a schedule will be set by the AJ for the payment proceedings, and for the agency to provide any evidence rebutting the class’ presumption of entitlement to such payments. Additionally, the AJ will set a schedule for determining whether SSA corrected the misapplication of its awards distributions after September 30, 2005.
MARCH 2014 UPDATE
Jefferson v. SSA (breach compliance proceedings):
On February 6, 2014, the parties participated in a status conference with Administrative Judge Mary Palmer of the EEOC regarding the Jefferson class. AJ Palmer approved the parties’ joint submission that the data produced by SSA in Jefferson has been sufficiently verified such that the parties can proceed to the next phase of the compliance proceedings: expert analyses. AJ Palmer also set a schedule for the parties’ expert reports. The Agency’s expert report in Jefferson is due April 1, 2014. The Class’ responsive expert report is due May 15, 2014.
Wilkerson v. SSA (pre-certification discovery)
On February 10, 2014, the parties participated in an in-person discovery hearing before AJ Palmer at the EEOC in Baltimore. The Agency was ordered to produce additional data to the Class by March 24, 2014. The Class also ordered to produce some additional information to the Agency. On February 26, 2014, the parties participated in a follow-up teleconference with AJ Palmer regarding additional discovery deadlines. AJ Palmer issued an order on February 27, 2014, setting a new deadline for the close of fact discovery in Wilkerson. Fact discovery will now close on June 30, 2014. After that date, AJ Palmer will set deadlines for expert discovery and depositions in the Wilkerson matter.
JANUARY 2014 UPDATE
In August 2013, the Agency provided its data verification report to the Class and the EEOC. In October 2013, the Class provided its responsive verification report, noting that there were discrepancies in some of the data sets and requesting additional information from the Agency. On December 18, 2013, a status hearing was held with the Administrative Judge. During the status call, the Agency stated it would be producing additional data, and the Class was given an opportunity to supplement its verification report. The Class expects to provide its supplemental report to the EEOC on January 13, 2014. Thereafter, the Administrative Judge will rule on whether the data produced by the Agency is sufficient to calculate the value of the awards issued between 2003 and 2005. Thereafter, a schedule will be set for the parties to conduct expert analysis as to the average values of the awards. We will continue to provide updates once the Judge has issued a ruling and set a schedule for expert reports.
JULY 2013 UPDATE
On July 25, 2013, the Administrative Judge issued an order in the Jefferson case requiring the Agency to produce more information and data to the class. We await delivery from the Agency of the additional required documents, which are supposed to be provided in August, 2013. Thereafter, the Agency will be required to submit a report verifying the data exchanged in the matter. The Class will be provided an opportunity to respond. Then, the parties will conduct expert analysis to provide the Judge with information to average the awards. Our current expectation, therefore, is that the awards will not be paid out until after December 2013. We will do everything that we can to expedite the processing of this case. However, as the Judge stated, “Unfortunately, with the Agency’s repeated efforts to thwart the Commission’s Orders in this case by not only making failed arguments concerning the authority of the Commission but also opposing and delaying producing information needed by the Administrative Judge, this matter is likely to continue for some time.” Class members who have questions, or who would like copies of the latest order should contact Kator, Parks & Weiser at (202) 898-4800, and ask to speak with Juliette Niehuss, or may email email@example.com.
APRIL 2013 UPDATE
The Administrative Judge held a joint status call in the two class cases– SSA1 (Burden/Jefferson/Dunbar) and SSA 2 (Wilkerson/Tate/Nesmith).
Following the status call, the Administrative Judge set a schedule for the monetary relief proceedings in SSA 1. The first step in these proceedings is for the Agency to produce data that will enable calculation of the average awards. The Judge has ordered that the Agency produce this information by the end of April, 2013. In May and June, 2013, the parties will have their experts analyze the data. After the expert reports are submitted, the Judge will issue a decision on how the awards are to be averaged. The payment proceedings will follow the Judge’s order. We cannot yet predict when payments to class members will be made, but it will definitely be after June 2013. The Judge has also ordered the Agency to produce information showing that it took steps to fix the problems with the awards system, and that those efforts were effective. If the Agency does not show that its efforts were effective, the Judge will order the Agency as to how it must fix its awards systems.
With respect to SSA2, the parties are working out a draft schedule for precertification discovery for approval by the Administrative Judge.
MORE CLASS MEETINGS TO BE HELD ON FEBRUARY 4, 2013 AND FEBRUARY 12, 2013
Meetings will be held for class members to discuss the impact of the EEOC’s Decision finding a breach of the settlement agreement.
A Metro West meeting will be in the Metro West Greene Street Lobby Walt Statham Room on Monday, February 4, 2013, from 11:30-1:30. The meeting will be conducted in two one-hour sessions, so class members are welcome to join at 11:30-12:30, or 12:30-1:30 p.m. to learn more about the EEOC’s decision.
A Security West meeting will be in the Security West Building on Tuesday, February 12, 2013, from 11:30-1:30. The meeting will be conducted in two one-hour sessions, so class members are welcome to join at 11:30-12:30, or 12:30-1:30 p.m. to learn more about the EEOC’s decision.
Please come with your questions! If you attended the January 23, 2013 meeting, you do not need to attend these meetings. If you are not sure whether you are a class member, but you are an African American male who works at SSA Headquarters, please feel free to attend the meeting and find out how the EEOC’s decision may affect you.
As required by the EEOC, SSA requested that the Jefferson case be assigned to an EEOC Administrative Judge in Baltimore. The Administrative Judge has now set a status call for March 2013 for counsel to discuss the remand proceedings on the breach decision, and the remaining proceedings in Wilkerson. We will post an update after the status call.
CLASS MEETING TO BE HELD ON JANUARY 23, 2013
A meeting will be held for class members to discuss the impact of the EEOC’s Decision finding a breach of the settlement agreement. The meeting will be in the East Building Conference Center in the East High Rise Building on the ground floor on Wednesday, January 23, 2013, from 11:30-1:30. The meeting will be conducted in two one-hour sessions, so class members are welcome to join at 11:30-12:30, or 12:30-1:30 p.m. to learn more about the EEOC’s decision. Please come with your questions! If you are not sure whether you are a class member, but you are an African American male who works at SSA Headquarters, please feel free to attend the meeting and find out how the EEOC’s decision may affect you.
Additional sessions will be scheduled at Security West and Metro West in the near future.
Federal Times Article on the EEOC’s December 2012 Order: “Black male employees at SSA owed millions in back pay”
EEOC ORDER ISSUED CONFIRMING SSA BREACHED SETTLEMENT
On December 18, 2012, the EEOC ordered that all African-American males who were employed at SSA Headquarters Office from April 1, 2003, through September 30, 2005, are “presumptively entitled to the average honor award, monetary award and [Quality Step Increase] received” by the workforce as a whole during that period. This Order falls on the heels of an EEOC finding that the SSA had breached a settlement of a claim of class-wide discrimination brought by African-American males. The class had alleged that they had been systematically discriminated against in terms of promotions, awards, and performance appraisals. The monetary relief is projected by Class Counsel to be at least in the tens of millions of dollars.
Class Agents Gilbert Jefferson, Harry Dunbar and Ken Burden have championed this litigation since 1995. Mr. Jefferson said, “The Commission’s ruling is a tremendous victory for me and all the class members who have worked so hard over so many years but without the recognition or reward they deserve. It is a shame that it has taken almost 20 years of litigation to reach this point, but I am thrilled that we have finally achieved justice for the class.” The original class agents have all now retired from SSA but current SSA employees Esset Tate, Kirk Wilkerson and Maceo Nesmith have stepped forward to carry the torch. The EEOC also ordered the SSA to “correct” any misapplication of its policies for granting monetary awards to “ensure fair and equitable distribution of such awards, consistent with merit principles.” Class Counsel Michael Kator said, “The irony here is that the amount SSA paid to settle the original claim in 2002—roughly $6 million—is modest in comparison to what it will now have to pay by virtue of its failure to abide by the terms of that agreement. While it may ultimately be for the experts to decide, SSA’s liability could well exceed by ten times the amount of the original settlement.”
EEOC FINDS SSA BREACHED SETTLEMENT
On April 28, 2011, EEOC’s Office of Federal Operations found that the Social Security Administration breached the 2002 Settlement Agreement in the Burden v. Barnhart class action. Specifically, EEOC found that the Agency breached the Settlement Agreement when it “failed to ensure that its policies and practices for granting performance awards and QSIs were fair and equitable and consistent with merit principles, and when it failed to correct any misapplications of its policies for granting performance awards and QSIs to ensure fair and equitable distribution of such awards, consistent with merit principles, we find that [the Class is] entitled to specific performance of the class settlement agreement.” EEOC remanded the case to an Administrative Judge to administer relief. Specifically, the EEOC instructed the AJ to calculate the average amount of awards and QSIs awarded to all employees at HQ from April 1, 2003 to September 30, 2005. Each African American male who worked at HQ during this period is “presumptively entitled” to receive this average amount unless SSA shows by “clear and convincing evidence” that the employee is not entitled to relief.
The Social Security Administration then sought reconsideration of the EEOC’s decision in June 2011. Class Counsel opposed SSA’s Request for Reconsideration. The matter is still pending before the Commissioners of the EEOC.
In the meantime, a second class action was filed on behalf of African American males at SSA headquarters who experienced discrimination after the settlement of the Burden class action. That matter has been stayed by the EEOC while the settlement breach action is pending.
If you are an African American male working at SSA’s Headquarters in Woodlawn, Metro West or Security West, and have information regarding discrimination, please contact us at:
Kator, Parks, & Weiser, PLLC
1200 18th St., N.W. Suite 1000
Washington, D.C. 20036
GENERAL SETTLEMENT INFORMATION
On January 11, 2002, the class of African-American male employees at the Baltimore headquarters of the Social Security Administration (SSA) entered into a settlement agreement with the agency regarding their class claim of discrimination on the basis of race and sex. On June 11, 2002, the administrative judge granted final approval of the settlement agreement. On April 7, 2003, the settlement agreement became effective pursuant to decision by the EEOC. A copy of the decision is linked below. The settlement provided for $6.35 million dollars to be distributed to class members, as well as significant non-monetary relief that aimed to ensure a non-discriminatory future for African-American male employees at SSA Headquarters.
Beginning in May 2003, Class Counsel mailed packages to class members eligible for monetary payments under the Settlement Agreement. Additional mailings were made in May 2003 to class members who appeared ineligible for payments. Class members were afforded an opportunity to contest their status but that time has expired. Class counsel continued searching for class members through January 31, 2004.
In order to expedite payments to the class, SSA agreed to make two payments of funds so that it could distribute a portion of the money while we still searched for remaining class members. Both sets of payments have been made.
CLASS ADVISORY BOARD INFORMATION
The Class Advisory Board was created by the Settlement to act as advocates for the class of African American males at SSA Headquarters. Please click on this link to learn more about the Class Advisory Board. NEW: Class Advisory Board Page.
e-mail us about the SSA class action at: