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The Coalition For Change, Inc. (C4C) P.O. Box 142 Washington DC 20044
August 4, 2011 The Honorable Michael J. Astrue Commissioner U.S. Social Security Administration Baltimore, Maryland 21235 Dear Commissioner Astrue: In recent months, employees of the Social Security Administration (SSA) have contacted The Coalition For Change, Inc., (C4C) to inform us that the SSA is currently besieged with three separate class action discrimination law suits. It appears from our perspective, as outside observers, that the SSA has a serious problem ensuring a workplace free of discrimination. I do not believe it would take an organizational development specialist, from any of America‟s business schools, to conclude that the SSA is a very troubled organization. Moreover, it appears that there has been a total lack of strong executive leadership in confronting and solving the problem of discrimination at the SSA. As a result of these three class suits, the C4C is particularly concerned about the SSA‟s commitment to a fair and equitable workplace for all of its employees. More importantly, one must wonder how three ongoing class action suits are affecting the productivity and morale of your workforce as the agency attempts to accomplish its mission. I believe this is a reasonable concern when apparently so much Agency time and valuable resources are dedicated to these three law suits. As you know, the first class suit involves findings by the Equal Employment Opportunity Commission (EEOC) that your agency breached a 2002 settlement agreement. This settlement agreement involves allegations of discrimination against African-American male employees of the SSA. The second class suit involves African-American females and the third class suit involves disabled SSA employees. Although it appears that the class suits involving both male and female African-Americans were certified prior to the start of your tenure as Commissioner1, the disabled class suit was however certified during your tenure. In addition, the failure of the agency to abide by the 2002 settlement agreement, involving African-American males, did occur during your current tenure. Therefore, the C4C is disturbed and concerned about the lack of leadership, by you the commissioner, in addressing and eliminating unlawful discriminatory conduct and practices at the SSA.
Tanya Ward Jordan L.O.R., B, A., M.S. Founder
Philip Taylor B.A., M.P.A. Acting President
Willie Berry, B.S. Treasurer Michael Castelle, Sr. Diversity Chair
Milton Hill B.S., M.A., M.P.A. Outreach Chair
Ricardo Jones, Sr. EEO Chair
Arthuretta Holmes-Martin B.S., M.S. Mental and Spiritual Well-Being Chair
Cecil Paris PMP, B.S. Management and Organization Chair
Anthony Perry Communications Chair CIO Cert. B.A., B.B.A, M.S.
Diane Williams B.A., M.S., J.D. Legislative Research Chair
www.coailtion4change.org C4C@coalition4change.org 1-866-737-9783
You were sworn in as SSA commissioner on February 12, 2007.
Commissioner Michael Astrue August 4, 2011 page 2
Background I. African-American Males’ Class Action Suit: Burden v. Barnhart2
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 a decision by the EEOC. The settlement provided for $6.35 million 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. On April 28, 2011, the 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 quality step increases (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 (AJ) to administer relief. Specifically, the EEOC instructed the AJ to calculate the average amount of awards and QSIs awarded to all Headquarters employees from April 1, 2003 to September 30, 2005. The AJ concluded that 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. As of late July 2011 the Class Counsel‟s website states, “Class Counsel will be holding an informational meeting for class members to discuss the decision.” Again, nearly ten years after a settlement agreement was reached and four years after you were sworn into office, the C4C is immensely disappointed that you have failed to employ the necessary leadership and commitment to ensure that the terms of the 2002 agreement were honored. As a result of the Agency‟s breach of the 2002 Agreement, it is apparent that the SSA has a callous indifference of ensuring that a workplace of fairness, dignity and equal opportunity exist at the SSA. I. African-American Females Class Action Discrimination Suit: Taylor, et al. v. Astrue, Commissioner3 On April 14, 2011, an Administrative Judge issued an interim decision on liability, finding class-wide discrimination against the Class in promotions into
Information regarding this class suit was obtained from the Kator, Parks & Weiser, PLLC website. 3 Information regarding this class suit was obtained from the Wiggins, Childs, Quinn & Pantazis PLLC and the Rose Legal Advocates website.
Commissioner Michael Astrue August 4, 2011 page 3
the Grade 12 level. This decision was upheld in a recent Memorandum and Order on Relief Proceedings denying all other claims for promotions to other grade levels. The judge concluded: "The Class has prevailed in the showing of class-wide discrimination against nonsupervisory African-American female employees who were denied promotions into the GS-12 level, from December 9, 2000 to the present. The Class did not prove that African-American females were discriminated against when they were not promoted, from December 9, 2000 to the present, into any other grade level position."4 In other words, the judge ruled against the Class on all promotion claims except for those Class Members who were denied promotions to GS-12 positions. For these Class Members, there will be additional proceedings before the Administrative Judge. Class counsel believes there are many bases for appeal of the Judge's ruling, and plans to appeal to the EEOC's Office of Federal Operations.
II. Disabled Americans Class Action Discrimination Law Suit: Jantz, et al. v. Michael Astrue, Social Security Admin.5 In November 2008, lawyers and advocacy groups for disabled employees of the Social Security Administration (SSA) were granted class-action status against the Agency. The Agency appealed Administrative Judge David Norken‟s decision granting class-action status in December 2008. The Agency and the plaintiffs submitted their respective papers to the Office of Federal Operations in early 2009 and, upon its review, the OFO affirmed the AJ‟s decision in August 2010. The Agency moved for reconsideration, which was denied in January 2011. Notice of the class action was disseminated to potential class members in late January and early February 2011. The class action known as Jantz, et al. v. Michael Astrue, Social Security Commissioner is currently before a judge with the EEOC. In the action, employees allege that SSA discriminates against targeted disability employees (“TDEs”) “by creating a glass ceiling and limiting promotional and other career advancement opportunities,” according to a consortium of law firms handling the case for the complainants. Litigants are seeking back pay and compensatory damages for lost promotional opportunities.
Paulette L. Taylor, Debra L. Harley, ETAL., (Class Agents) v. Michael J. Astrue, Commissioner, Social Security Administration (Agency), Memorandum and Order on Relief Proceeding, sec.6 page 3, “Claimants must prove that they are members of the class, that is, they are African-American females in the Agency‟s headquarters in Baltimore, Maryland, including employees working in the Security West and Metro West facilities, but excluding those in the Office of General Counsel and the Office of Inspector General, who were denied promotions to the GS-12 level from December 9, 2000 to the present. If the Agency seeks to contest the claim the Agency must show by „clear and convincing evident‟ that the class member is not entitled to relief.” 5 Information regarding this class suit was obtained from The Rights Group and the Berger & Montague, PC website.
Commissioner Michael Astrue August 4, 2011 page 4
In light of the foregoing, we wish to learn what steps, during your four years as commissioner, have been taken in addressing employment discrimination; ensuring that a fair and equitable work environment is achieved; and holding SSA managers accountable for violating employees‟ civil rights. In closing, the C4C, Inc., was established in 2008 as a public interest group consisting of current and former Federal employees who are experiencing or have experienced the indignity of employment discrimination and retaliation by Federal managers -- Federal managers who are not held accountable for their unlawful behavior. The C4C‟s mission is to expose and eradicate racism in the Federal Government that not only injures the affected party, but also hampers the government‟s ability to promote efficiency, effectiveness and transparency in Federal programs and operations. Therefore, we hope you understand why three class action discrimination lawsuits are of immense interest and concern to our membership. We look forward to your response. Sincerely, | signed | Philip D. Taylor, Acting President The Coalition For Change, Inc. (C4C)
cc: President Barack Obama Senator Barbara A. Mikulski Senator Benjamin L. Cardin Representative Steny Hoyer Representative Elijah E. Cummings Representative Chris Van Hollen, Jr.
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