Kator, Parks, Weisser- SSA Settlement Agreement

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION BALTIMORE DISTRICT OFFICE

KEN A. BURDEN, HARRY M. DUNBAR,GILBERT M. JEFFERSON, Class Agents

JO ANNE B. BARNHART, COMMISSIONER,SOCIAL SECURITY ADMINISTRATION, Agency.

EEOC Case Nos. 120-99-6378X; 120-99-6379X; 120-99-6380X Date: January 11, 2002

SETTLEMENT AGREEMENT

Ken A. Burden, Harry M. Dunbar, and Gilbert M. Jefferson, on behalf of themselves and all others similarly situated, and Paul D. Barnes, Deputy Commissioner for Human Resources for the Social Security Administration, on behalf of the Social Security Administration, hereby agree to settle and dismiss the above-captioned class action complaint on the following terms and conditions:

I. Definitions

The following terms, as used in the Settlement Agreement, shall have the meanings defined below:

A. Administrative Class Complaint

The formal administrative complaint of discrimination filed with the Equal Employment Opportunity Commission (EEOC) by Ken A. Burden, Harry M. Dunbar and Gilbert M. Jefferson on behalf of themselves and all others similarly situated, pending before the Baltimore District Office of the EEOC as Nos.120-99-6378X, 6379X and 6380X.

B. African-American

As defined in Appendix 4 of the current Instruction Booklet for completion of Standard Form 100, Employer Information Report (EE)-1, "African-American" and "Black" are used interchangeably, and for the purposes of this Settlement Agreement shall include Black aliens, lawfully able to work for the Social Security Administration but who are not of American citizenry or descent.

B. Class Counsel

Jessica Parks, Michael Kator, Cathy Harris, and other attorneys of the law firm of Kator Parks & Weiser, P.L.L.C., 1020 19th Street, NW, Suite 350, Washington, DC 20036.

B. Class Member(s),

Class As defined by the Administrative Judge, the Class consists of all African?American males employed at SSA's Headquarters Office in Baltimore, Maryland, who, on or after January 1, 1987, were not selected or promoted, or were otherwise subjected to disparate treatment in regard to performance appraisals, awards and bonuses, and disciplinary action.

B. Class Representatives, Class Agents

C. The class representatives are Ken A. Burden, Harry M. Dunbar and Gilbert M. Jefferson.

F. Effective Date

The date after which the Administrative Judge has approved the provisions of this Settlement Agreement and the time for appeal has run without an appeal being filed or, if an appeal is filed, the final resolution of that appeal.

G. Preliminary Approval

The entry of the Administrative Judge's Order granting initial approval of the Settlement Agreement, prior to conducting a fairness hearing.

H. Final Approval

The entry of an order by the Administrative Judge approving the Settlement Agreement as fair, reasonable, and adequate to the Class as a whole.

I. SSA Headquarters

For the purposes of this agreement, SSA Headquarters includes all components of the Social Security Administration geographically located in Baltimore, Maryland, including the components located in the Woodlawn, Metro West and Security West complexes. SSA Headquarters does not include components of the Philadelphia Regional Office or the Office of Hearings and Appeals.

J. Disciplinary Action

All suspensions, removals, reductions-in-pay, and reductions-in-grade, or other actions that are permanent records in Agency Official Personnel Files. Specifically excluded from this definition are oral and written reprimands and other actions that are not permanently documented and maintained in Agency Official Personnel Files.

K. Training

Any educational classes that relate to an employee's job at the Agency and are limited to those classes funded by the Agency or another component of the Federal Government. Specifically excluded from this definition are developmental programs, management development courses, or other courses that have an application process and/or result in a promotion for employees selected from those programs or courses.

L. Competitive Selections

All vacancy announcements competitively advertised by the Agency, including selection for entry into developmental programs, such as the Mid-level Management Program or the Advanced Leadership Program, and specifically excluding any and all Senior Executive Service vacancy announcements.

M. Demographic Characteristics

The race, sex, and national origin of an individual or group of individuals, specifically excluding identification of any individual by name and/or Social Security number or other personal identifiers.

N. Protected Information

Any information containing personal identifiers of any employee or individual, including name or Social Security number, or which otherwise falls within the scope of the Privacy Act, 5 U.S.C. § 552a. II.

Scope of the Settlement Agreement

B. The Settlement Agreement resolves and extinguishes all claims that Class Members may have against the Agency alleging discrimination in the areas of promotions, awards, appraisals, training opportunities, or disciplinary actions on the bases of race and sex, including any claims under disparate impact theories of recovery, disparate treatment theories of recovery, or any other theory of recovery based on allegations of sex and race discrimination for events occurring in whole or in part between January 1, 1987, and the date of Preliminary Approval of the Settlement Agreement.

Specifically excluded are any claims of African-American males who, as of the date of the Final Approval of the Settlement Agreement: 1) have pending in Federal court complaints of race or sex discrimination; and 2) African-American males who have pending before the Agency or the EEOC administrative complaints that raise bases other than solely race and sex discrimination. The Agency has provided a list identifying all Class Members who have pending administrative claims of race and sex discrimination and whose claims are subsumed within this administrative class complaint and resolved by the Agreement. This list will conclusively establish those individuals whose claims are subsumed within this class complaint and resolved by the Agreement.

Upon Final Approval of the Settlement Agreement, each included Class Member shall be bound by the doctrines of res judicata and collateral estoppel with respect to all such claims and otherwise be unable to raise claims of race and sex discrimination in any forum based on events occurring between January 1, 1987 and the date of Final Approval of the Settlement Agreement.

B. The Settlement Agreement is conditioned on Final Approval by an Administrative Judge at the EEOC, after notice to all Class Members, a fairness hearing before the Administrative Judge, and consideration of any objections by Class Members. In the event that any Class Member appeals from any decision of the Administrative Judge approving the Settlement Agreement, the parties will jointly move for expedited consideration of the appeal so that a final determination of the fairness of the Settlement Agreement can be obtained as promptly as possible.

C. The Administrative Judge shall retain jurisdiction over this matter for a period of 4 years after the Effective Date of the Settlement Agreement for purposes of monitoring and ensuring compliance with the Settlement Agreement.

D. It is an express condition of this Agreement that the parties are bound by this Agreement, and that this Agreement be approved by the Administrative Judge as written. The parties have bargained for the terms in this Agreement. No section or subsection of this Agreement may be modified or stricken. If the Administrative Judge does not approve this Settlement Agreement as written, either party may elect to withdraw from this Agreement, which shall then be deemed null and void.

E. Nothing in this Agreement may be taken as modifying either the statutory or regulatory procedures pertaining to initiating and maintaining administrative and judicial proceedings under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., or the Federal civil service laws.

F. The parties acknowledge that the Agency's collective bargaining partner, the American Federation of Government Employees (AFGE), must be notified of any proposed changes to Agency personnel policies covered by the 2000 AFGE/SSA National Agreement and, prior to implementation of this agreement, any changes to the Agency's personnel policies covered by the National Agreement must be negotiated with AFGE.

G. The Settlement Agreement will be implemented consistent with the provisions of the Federal Service Labor-Management Relations Statute, 5 U.S.C. Chapter 71, and the controlling AFGE/SSA National Agreement.

H. The Agency agrees to mail notice to all Class Members within 10 business days of the Administrative Judge's approval of the notice concerning entitlement to relief pursuant to the Administrative Judge's Preliminary Approval of the Settlement Agreement. The proposed notice will be drafted jointly by the parties and will be approved by the Administrative Judge. The notice will include a copy of the proposed Settlement Agreement and a statement of each Class Member's right to challenge the fairness of the Settlement Agreement.

I. The provisions of this Agreement are intended as, and are properly interpreted as, benefitting all SSA Headquarters employees by promoting fairness, consistency and objectivity in the administration of employment practices. No employee will be displaced from his or her job as a result of any provision of this Agreement.

III. Non-Monetary Relief

B. The parties will establish an Oversight Committee comprised of seven members. The Agency and Class Counsel will each appoint two representatives to serve on this Committee. Thereafter, the four Committee members will choose three additional Committee members, two from a list provided by Class Counsel and one from a list provided by the Agency. Each such list shall include at least three names for each vacancy. Other than past or current employees of the Agency's Office of the General Counsel, any past or current employees of the Agency, including non-Class Members, shall be eligible to serve on the Oversight Committee.

The Oversight Committee shall remain in existence during the 4 years that the Administrative Judge retains jurisdiction over this complaint. Each member of the Oversight Committee must expressly agree to keep confidential any protected information provided by the Agency. The duties of the Oversight Committee will be to provide oversight and monitoring of the implementation of this Settlement Agreement. In carrying out its duties, the Oversight Committee may, among other things, review data provided by the Agency to monitor trends in the Agency's personnel policies and practices.

B. The role of the Oversight Committee is not to review individual nonselections or other individual actions other than as specified in Paragraphs K and L below. No action by the Oversight Committee may be deemed to waive any applicable time periods for any adjudicatory process, including filing complaints of discrimination or individual grievances under the Collective Bargaining Agreement. Employees may contact the Oversight Committee concerning issues related to the implementation of the Agency's promotion and awards policies. The information provided by employees to the Oversight Committee may be used with statistical data to address trends in the Agency's personnel policies and practices.

C. During the period the Administrative Judge has jurisdiction over the Settlement Agreement, the Agency will take the following actions with respect to competitive selections at SSA Headquarters in the following manner:

1. The Oversight Committee will designate a pool of employee volunteers who will be trained by the Agency and will serve as non-voting monitors for promotion assessment panels. The Agency may limit the amount of time any particular employee volunteers to serve as a monitor for assessment panels to not more than 4 hours per month if it finds that a particular employee has abused the opportunity to participate in this process or if it finds that the demands of that particular employee's position are such that the Agency cannot spare additional time. The role of the non-voting monitor is to ensure compliance with relevant merit promotion guidelines and Equal Employment Opportunity (EEO) principles during the rating and ranking of applicants by the assessment panel. A monitor shall not express opinions concerning the ranking of individuals by the assessment panels during meetings held by the panel. Failure of a monitor to appear at a scheduled meeting of an assessment panel will not prevent the assessment panel from proceeding with its obligations. Monitors must submit written reports within 10 working days to both the Oversight Committee and the Deputy Commissioner for Human Resources, or his designee, if the monitor believes violations of either EEO or merit promotion principles occurred during the rating and ranking process performed by an assessment panel. The parties recognize that the failure of a monitor to submit a report does not raise a presumption of nondiscrimination in any selection. The Agency may respond to the Oversight Committee after investigating any allegations contained in any written report provided by the assessment panel monitor.

2. The Agency will continue its present practice regarding the use of assessment panels to rate and rank employees for competitive selections in SSA Headquarters in a manner consistent with Office of Personnel Management regulations. The ratings and rankings completed by assessment panels for competitive promotions will be retained and provided to the Oversight Committee. These ratings and rankings will contain only demographic information for individuals on the best qualified list, as well as the name of the selectee or selectees.

D. The Agency agrees that its policies and practices for granting performance awards and Quality Step Increases will be fair and equitable and consistent with merit principles. The Agency agrees that it will correct any misapplications of its policies for granting performance awards and Quality Step Increases to ensure fair and equitable distribution of such awards, consistent with merit principles. At the Agency's discretion, an expert may be retained to recommend ways to assess these policies and practices and to ensure compliance with relevant statutes, regulations, EEO principles, and applicable collective bargaining agreements in the Agency's awards process. Any corrections the Agency implements will be made after providing a 30-day notice and comment period to the Oversight Committee. The Agency will provide a report to the Administrative Judge within 6 months of the Effective Date of this agreement of the actions it has taken to comply with this paragraph. The Agency may submit a supplemental report every 6 months, as needed.

E. The Agency will notify all Class Members who are current Agency employees of their opportunity to create, in conjunction with their supervisors, an Individual Development Plan (IDP). The parties agree that the IDP will adhere to the guidance contained in the Agency's Administrative Instructions Manual System, Chapter 03, Instruction No. 3, and the applicable Collective Bargaining Agreements. All IDPs must serve as career goals realistically attainable in 2 years and Class Members must secure approval of all IDPs from appropriate Agency officials.

F. Any Class Member who is denied training, as that term is defined herein, during the time the Administrative Judge retains jurisdiction over this complaint may, within 15 days of learning that he was denied training, ask the supervisor of the manager who denied the request for training to investigate the alleged denial of the training request. The Class Member may also report the alleged denial of training, and the Agency's response, if any, to the Class Advisory Board and the Oversight Committee.

G. During the time the Administrative Judge retains jurisdiction over this complaint, when a disciplinary action, as that term is defined herein, is proposed against a Class Member, the Agency agrees to provide Class Counsel with a copy of the official proposal of disciplinary action, contingent upon consent of the Class Member. Class Counsel may recommend that the Agency review the proposed disciplinary action. No disciplinary action may be effected against a Class Member who consents to have notice of the disciplinary action provided to Class Counsel sooner than 30 days (or the time allotted under 5 U.S.C. § 7513(b), if appropriate) after Class Counsel is notified of the proposal. Nothing in this paragraph shall be deemed to create an attorney-client relationship between Class Counsel and any Class Member against whom disciplinary action is proposed for purposes of representing the Class Member in any individual disciplinary proceeding.

H. The Agency will collect data and compile such reports as the Oversight Committee might reasonably require to fulfill its role of monitoring the Agency's compliance with the Settlement Agreement. These reports will include, but not necessarily be limited to, the following:

1. quarterly reports of competitive and non-competitive promotions within each SSA Headquarters component broken down by the demographic characteristics of the applicants on the best-qualified or well-qualified list and the selectee;

2. quarterly reports of monetary awards, including Quality Step Increases, given to SSA Headquarters employees, broken down by component and the demographic characteristics of the employees receiving such awards;

3. quarterly reports of training classes attended by SSA Headquarters employees, broken down by component and the demographic characteristics of the employees attending such training;

4. quarterly reports of disciplinary actions taken against SSA Headquarters employees, broken down by component and the demographic characteristics of the employees receiving such discipline; and,

5. annual reports on the numbers of competitive selections in which assessment panels were not utilized. These reports will contain only demographic information for employees. All reports will be generated based on data maintained and stored in the Agency's electronic databases. It is understood that this will not entail new data collection or storage efforts, but only that reports may be generated based on data already collected by the Agency. The Oversight Committee, may, in its discretion, request additional information and data from the Agency. If the Agency does not agree to provide any such data, and after the parties have made a good faith effort to resolve the dispute, the matter may be presented to the Administrative Judge for resolution.

I. The Oversight Committee may request the services of an expert to analyze or interpret the data or reports. To the extent possible, the Agency will provide in-house statistical and economic analyses for this purpose. The Administrative Judge may direct the Agency to retain an expert or experts in the event the Agency is unable to provide the required expert analysis or does not do so within a reasonable time. The Agency will appoint and pay for the expert. Generally, the Agency will have the discretion to appoint an expert of its choice. Any dispute concerning the selection of the expert will be submitted to the Administrative Judge for resolution.

J. Beginning 90 days after the Effective Date of the Settlement Agreement, the Oversight Committee will meet with the Commissioner or her designee on a quarterly basis to report on its conclusions and to raise any concerns with the Commissioner it might have. The Commissioner will make reasonable efforts to personally attend at least two of the first four quarterly meetings and at least 1 meeting each subsequent year for the period of the Settlement Agreement.

K. Any employee may, during the time the Administrative Judge retains jurisdiction over this complaint, ask the Oversight Committee to review the selection or award process. In its discretion, the Oversight Committee may, or may not, refer the matter to the Deputy Commissioner for Human Resources for appropriate corrective action or include the matter as part of a compliance action brought before the Administrative Judge.

L. At their discretion, Class Counsel may establish a Class Advisory Board comprised of no more than nine Class Members who are current employees of the Agency. The Class Advisory Board shall remain in existence for so long as the Administrative Judge retains jurisdiction over this complaint. Nothing in this Agreement shall entitle any member of the Class Advisory Board to administrative leave to participate in meetings and otherwise perform his duties. The Agency will provide facilities for the Class Advisory Board to meet. The duties of the Class Advisory Board are to serve as an advocate for Class Members before the Oversight Committee and the Administrative Judge, if necessary. Any class member who believes that he was treated adversely because of his race and sex in connection with promotions, awards, training or discipline after the Effective Date of this Settlement Agreement may notify the Class Advisory Board of his concerns. In its discretion, the Class Advisory Board may elect to present the matter to the Oversight Committee or to Class Counsel, as appropriate.

M. The Agency does not condone managers or employees who discriminate against other Agency employees. Such conduct may be grounds for disciplinary action, up to and including removal from employment. The Agency will consider taking disciplinary action against any employee whom, during the time that the Administrative Judge retains jurisdiction over this complaint, it, or any adjudicatory body, finds to have unlawfully discriminated against any other Agency employee.

IV. Monetary Relief

A. The Agency will pay to the Class the total sum of six million, three hundred and fifty thousand dollars ($6,350,000), in full, complete and final satisfaction of all claims, including interest, arising out of the Class Agents' allegations of discrimination in employment practices as described in the Settlement Agreement, but excluding attorney fees, expenses and costs.

B. Class Counsel has devised a formula for distributing the proceeds of this settlement. Six million, three hundred and fifty thousand dollars ($6,350,000) will be paid by the Agency in accordance with the Formula attached as Appendix A. Class Counsel will provide to the Agency a list identifying the exact gross amounts to be paid to each Class Member. Class Members who left the Agency before November 21, 1991 are precluded from recovery of either compensatory damages or back pay by virtue of the Civil Rights Act of 1991. No Class Member may opt out of this Settlement Agreement; however, any Class Member may elect not to receive the monetary relief afforded under this Settlement Agreement. Any monetary relief that is unclaimed or rejected will be reallocated to the participating Class Members pursuant to the distribution formula. No Agency official who has participated in the negotiation of this Settlement Agreement will receive monetary relief hereunder.

C. It is the intent of both parties that the sums specified in the Settlement Agreement constitute lump sums from which no deductions of any kind will be taken. By agreeing to payment of these lump sums, the Agency makes no representation as to the taxability of these lump sums. Except as may otherwise be determined by the Internal Revenue Service, each Class Member will be solely responsible for making payment to the appropriate taxing authorities for all tax liability.

Within five business days of the execution of this Settlement Agreement, the Agency will request a Private Letter Ruling from the Internal Revenue Service concerning its obligations, if any, to make withholdings and to pay employer contributions for FICA, Medicare, or any other required payments or contributions. The parties specifically intend that all payments made to Class Members pursuant to this Settlement Agreement represent compensatory damages and not wages.

D. Within 10 business days of the Effective Date of the Settlement Agreement, or the receipt of the Private Letter Ruling from the Internal Revenue Service, whichever is later, or as soon thereafter as reasonably possible, the Agency shall make distributions of payments to each Class Member. Within five days of the Effective Date of the Agreement, the Agency shall pay the attorneys fees, costs and expenses as referenced in IV(E).

E. One million four hundred thousand dollars ($1,400,000) shall be paid as attorney fees, expenses and costs. Additionally, the Agency agrees to provide not more than $50,000 in attorney fees, costs and expenses for monitoring responsibilities for the first year of implementation of the Settlement Agreement. For the following 2 years of implementation of the Settlement Agreement, the Agency agrees to provide not more than $20,000 per year in attorney fees and costs for monitoring responsibilities associated with the Settlement Agreement. Payment of fees and costs for monitoring responsibilities is contingent upon receipt of billing documentation from Class Counsel.

F. In addition to the relief available to all Class Members, the Class Agents will be entitled to the following specific relief:

1. Upon the Effective Date of this Settlement Agreement, Ken A. Burden will be retroactively promoted to a GS-15, Step 10, effective March 31, 1998. Only the necessary retirement contributions will be paid by the Agency. The Agency is not responsible for providing retroactive contributions to Mr. Burden's Thrift Savings Plan;

2. Upon the Effective Date of this agreement, Class Agent Gilbert M. Jefferson will be retroactively promoted to a GS-13, Step 10, effective June 1, 1996. Only necessary retirement contributions will be paid by the Agency. The Agency is not responsible for providing retroactive contributions to Mr. Jefferson's Thrift Savings Plan; and,

3. Class Agent Harry M. Dunbar agrees to arrange and begin a 1-year interagency detail within 30 days of the Effective Date of the Settlement Agreement. Once Mr. Dunbar begins the interagency detail, he will be promoted to a GS-12, Step 10 and the Agency will expunge from his records all reference to his demotion from GS-12 to GS-10. Following completion or other termination of that detail, he will retire from Federal service or otherwise separate from employment with the Agency. At that time, he will be retroactively promoted to a GS-13, Step 10, effective 3 years prior to his separation date. Mr. Dunbar agrees that upon completion or other termination of the detail, he will separate from the Agency and that, if he does not separate from the Agency, the Agency may remove him consistent with this Settlement Agreement.

If Mr. Dunbar fails to arrange and begin the 1-year detail within 30 days of the Effective Date of the Settlement Agreement, he agrees to separate no later than 6 months after the Effective Date of the Agreement, at which point he will be retroactively promoted to a GS-12, Step 10, effective 3 years prior to his separation date. Only necessary retirement contributions will be paid by the Agency. The Agency is not responsible for providing retroactive contributions to Mr. Dunbar's Thrift Savings Plan. Additionally, the Agency will reinstate 108 hours of Mr. Dunbar's annual leave. Alternatively, Mr. Dunbar may forego all specific relief provided in this paragraph and remain employed at the Agency.

G. In consideration of monetary damages and other relief received by Class Agents Ken A. Burden, Gilbert M. Jefferson, and Harry M. Dunbar pursuant to the Settlement Agreement, the Class Agents and their heirs, administrators, successors, or assigns hereby release and forever discharge the Agency and any Department, Agency, or establishment thereof and any officers, employees, agents, or successors of any such department, Agency, or establishment:

1. from any and all claims and causes of action that have been or could have been asserted in the above-captioned action, or administratively, by reason of, or with respect to, or in connection with, or that arise out of, any of the matters alleged in the above-captioned action, including, without limitation, claims or causes of action that pertain or relate to, or that are based upon or challenge, the policies or practices described in the Settlement Agreement;

2. from any and all claims and causes of action that hereafter could be asserted by reason of, or with respect to, or in connection with, or that arise out of, or that pertain or relate to, or that are based upon or challenge, the policies, or practices described in the Settlement Agreement, which programs, plans, policies or practices were in effect on the date of Preliminary Approval of the Settlement Agreement or at any time prior thereto; and,

3. upon the Effective Date of the Settlement Agreement, the Class Agents agree to the dismissal with prejudice of any and all individual claims or causes of action described above that are presently pending in any administrative, State, or Federal forum. Upon cessation of the Administrative Judge's jurisdiction over this Agreement, the class claims contained in the EEO Class Complaint of Ken A. Burden, et al. v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, EEOC Nos. 120-99-6378X, 120-99-6379X, 120-99-6380X, shall be dismissed.

H. Consistent with EEOC regulation 29 C.F.R. ' 1614.204(g)(4), this Settlement Agreement shall bind all members of the Class upon the Effective Date of the Settlement Agreement. Class Members who have filed complaints of discrimination against the Agency shall, prior to receipt of any monetary relief in connection with this settlement, execute a release specifically waiving any claims for compensatory damages or any other claims the Class Members may have against the Agency during the time period covered by the Class Definition.

I. Any Class Member who already has filed a claim or complaint in any administrative forum alleging that he was discriminated against solely on the bases of race and sex with regard to personnel actions by the Agency that allegedly occurred in whole or in part between January l, 1987, and the date of Preliminary Approval of the Settlement Agreement shall, within 60 days of the Effective Date of the Settlement Agreement, withdraw all claims and requests for relief. In the alternative, if such Class Member fails to withdraw any such claim, civil action, or other request for relief, such Class Member shall be determined to have consented to the withdrawal of such action by virtue of the Settlement Agreement.

V. Compliance

Either party may bring an application before the Administrative Judge if it believes that the other party has not complied with its or their obligations under the Settlement Agreement pursuant to 29 C.F.R. ' 1614.504. As contemplated in the regulatory section cited above, prior to bringing any non-compliance matter to the Administrative Judge, the complaining party must notify the other party and meet and confer in a good faith effort to resolve the conflict. The Agency shall be responsible for payment of any attorney fees and expenses, as proven by current documentation, incurred by Class Counsel in the event the Administrative Judge concludes that the Agency has failed to comply with the terms of the Settlement Agreement.

VI. Interpretation of the Settlement Agreement

A. The Settlement Agreement does not represent an admission of liability by the Agency. The Settlement Agreement constitutes a joint effort by the parties and should not be construed against any party. The terms of the Settlement Agreement, the negotiations leading up to the Settlement Agreement, the data, documents, or information exchanged between the parties in the course of settlement negotiations of this action, may not be offered, taken, construed, or introduced as evidence of liability or as an admission or statement of wrongdoing by the Agency either in this action or in any subsequent proceeding of any nature. However, such information exchanged between the parties as part of this action may be presented to the Administrative Judge by the parties to the Settlement Agreement solely to obtain the approval of this settlement.

B. It is an express condition of the Settlement Agreement that the Class and Class Members be bound by the Settlement Agreement. The Settlement Agreement is binding on all parties and their successors, assigns, representatives, and trustees and shall be null, void, and of no force or effect if the Administrative Judge does not approve the Settlement Agreement, and voidable, pursuant to Section II.D. of this Agreement if the Administrative Judge does not approve the Settlement Agreement in its entirety. The Settlement Agreement may be executed in one or more counterparts and each executed copy shall be deemed an original that shall be binding upon all parties to the Settlement Agreement. The waiver by any party hereto of any term, condition, or covenant of the Settlement Agreement or the breach of any term, condition, covenant, or representation herein, in any one instance, shall not operate as or be deemed to be a waiver of the right to enforce any other term, condition, or representation, nor shall any failure by any party at any time to enforce or require performance of any provision hereof operate as a waiver of or affect in any manner such party's right at a later time to enforce or require performance of such provisions or of any provision hereof.

C. The headings in the Settlement Agreement are for the convenience of the parties only and shall not limit, expand, modify, amplify, or aid in the interpretation or construction of the Settlement Agreement.

D. The Agency shall not be obligated to carry out any term of the Settlement Agreement if any otherwise applicable current or future Federal statutes or regulations preclude the Agency from complying with, or withdraw the Agency's authority to perform, that term. Should one or more terms of the Settlement Agreement subsequently be deemed unenforceable, the parties agree that the unaffected terms of this Settlement Agreement shall remain in effect. The Agency agrees to notify Class Counsel and the Administrative Judge should any such change in law prevent the Agency from complying with any term of the Settlement Agreement during the period the Administrative Judge retains jurisdiction over this matter. The Agency's obligation to comply with any term of the Settlement Agreement shall be suspended only upon order of the Administrative Judge, or the Office of Federal Operations or the Equal Employment Opportunity Commission or a court of competent jurisdiction.

E. In the event that changes in the law subsequent to the entry of the Settlement Agreement make any of its provisions contrary to law either as written or as applied, either party may apply to the Administrative Judge for a modification of those provisions so that they comply with existing law.

AGREED: FOR THE CLASS: Ken A. Burden, Harry M. Dunbar, Gilbert M. Jefferson, Michael J. Kator, Jessica L. Parks, Cathy A. Harris

Kator, Parks & Weiser, P.L.L.C. 1020 19th Street, N.W. Suite 350 Washington, DC 20036

FOR THE AGENCY: Paul D. Barnes, Deputy Commissioner for Human Resources, Social Security Administration Altmeyer Building, Room 200 6401 Security Boulevard Baltimore, MD 21235-0001, Charlotte Hardnett, Principal Deputy General Counsel Social Security Administration Altmeyer Building, Room 617 6401 Security Boulevard Baltimore, MD 21235-0001

Formula for Distribution of $6,350,000 Settlement Fund

1. Awards, QSIs, Promotions, Service, Discipline and EEO Complaints

Awards and QSIs: $2,300,000

Awards: Assume each class member should receive one award every other year of active service since 1991:

((# of years of active service since 1991)/2)- (# of awards received from 1991 to present)

= # of awards due.

$500 per number of awards due that is greater than (0.5).

QSIs: Assume each class member should receive one QSI every other year of service since 1991, but not in the year of a grade change: Divide number of years of service since 1991 by number of grades occupied. If the result is less than 2, no allocation is made. If the result is greater than 2, then:

((# of years of service after 1991 - # of grades occupied since 1991)/2 ) - (# of QSI received since 1991) = # of QSIs due.

Approximately $686 per QSI due. QSI payments are only made to GS and GM class members in grades lower than 14.

Promotions and Service (Stagnation in Grade): $1,700,000

Promotions: $1000 is given to anyone who did not receive at least one promotion since 11/21/91 and has had 8 years or more of service since 11/21/91. There is no promotion allocation for those in salary grade 15.

Service: $50 per year of service at SSA. Anyone with less than one year of service does not get a service award

Discipline: $15,000

For each suspension and removal action since 11/21/91, $100 for each action for each person.

Formal EEO Complaints: $600,000

Each class member will receive 10 points for each EEO complaint alleging non-selection that he filed after November 21, 1991. Each class member will receive 1 point for each EEO complaint alleging discrimination other than non-selection filed after November 21, 1991. The $600,000 will be allocated proportionately.

Total for Awards, QSIs, Promotions, Service, Discipline and EEO Complaints: $4,600,000

2. Class Contributions

Class Members Listed on Class Witness Lists: $60,000

$2,000 each

Class Member Contributors: $1,500,000

Class Member Officers of Black Males for Justice receive $10,000 per year serving as an Officer.

Class Member Board Members of BMFJ receive $5,000 per year serving as Board Member

Class Members who are Members of BMFJ receive a percent of $1 million pool based on his monetary contribution

Class Member Fundraisers for BMFJ receive $1,000 per year engaged in fundraising

Class Agents: $240,000 plus amount based on the formula $80,000 each plus amount based on the formula.

Total for Additional Monies to Class Members: $1,800,000

SES Employees

Employees that were ever SES at SSA are not included in the settlement distribution.

Cap

No class member will receive greater than $150,000, regardless of formula allocation.

Undistributed Funds

Undistributed funds, including interest on the settlement fund, will be allocated to the remaining class members. Allocation to class members will be based on the percentage of distributed funds to each claimant.

The dollar amounts listed in this formula are approximate. The formula calculations are based on the data provided by the Agency from the HRMS database and from information provided by the class agents.