U.S.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

BALTIMORE FIELD OFFICE - 531

10 South Howard Street, 3rd Floor

Baltimore, MD 21201
(410) 209-2782
FAX (410) 209-2777
) EEOC No. 531-2013-00129X
)
GILBERT JEFFERSON )
KEN A. BURDEN )
HARRY M. DUNBAR, et al )
)
Complainants )
) Date: February 13, 2017
vs. )
)
CAROL COLVIN,
ACTING COMMISSIONER
Social Security Administration
Agency

DECISION
BACKGROUND

This matter is before the Baltimore Hearings Unit pursuant to the Order of the Commission in
Jefferson et al. v. SSA, EEOC Appeal No. 0120081816 (April 28, 2011) (Request for reconsideration
denied, Request No. 0520110501, et al (December 18, 2012). The history of the case is described in that
decision.

In the decision, the Commission ordered that the Administrative Judge:

When determining the relief due, the AJ should determine the total amount of honor
awards, monetary awards, and QSIs awarded to all employees working at the Agencys
Headquarters office in Baltimore, Maryland from April 1, 2003 through September 30,
2005. This total amount should then be divided by the total number of employees who
received awards during the relevant time frame, to determine the average honor,
monetary and QSI awarded. The resulting amount should then be awarded to each
African-American male who worked for the Agencys Headquarters Office in Baltimore,
Maryland from April 1, 2003, through September 30, 2005, unless the Agency shows by
clear and convincing evidence that an employee is not entitled to such relief.

Additionally, the Agency shall produce evidence showing it has complied with provision
III(D) of the April 7, 2003 settlement agreement requiring the Agency to 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. Specifically, the Agency shall produce evidence that it has taken the actions
identified in the Commissioners September 8, 2006 letter. To the extent it has taken any
additional actions to correct the misapplications of its policies for granting performance
awards and the QSIs, the Agency shall produce evidence detailing these actions.

EEOC Appeal No. 0120081816 at 13-14.

Pursuant to numerous Orders, and in particular Judge Marlin Schrefflers 1 Order of

March 20, 2013, the Agency has produced information regarding the awards and the awards
process. The parties have also produced expert reports calculating what they believe the amount
to be awarded to class members should be and whether the Agency has produced evidence to
show that it has complied with provision III(D).

RELIEF TO BE AWARDED TO CLASS MEMBERS

On April 1, 2014, the Agency submitted the expert report of its expert, Dr. Donald Deere. On
May 15, 2014, the Class submitted the expert report of its expert, Sharon Kelly, and a cover letter
summarizing its experts report. On May 20, 2014, the Agency submitted a letter responding to the
Classs statements in its May 15, 2014 cover letter.

The Agencys expert submitted Table 1 which calculated the average award per employee
receiving an award (section A) and included the average for employees receiving monetary or QSI
1
Judge Schreffler was originally assigned to this matter. Upon his retirement in early 2014, the undersigned administrative
judge became the judge assigned to the case.

2
awards for class members, non-class members and all employees. The Agency included the same
information for employees receiving monetary, QSI or Honor awards. The average for all employees
receiving a Monetary or QSI award was $2,298.23 and the average for all employees receiving a
Monetary, QSI or Honor award was $2,272.11. The second number was lower because Honor awards
do not have any monetary value. The Agency also included information on the average per employee,
whether or not they receive an award, and the average amount per award. The Agency arrived at its
numbers for panel A for the total amount awarded by adding the amount of Monetary awards and QSI
awards and dividing by the number of employees who received at least one Monetary or QSI award
during the time period. The Agency determined the amount of QSI award by calculating the difference
between the base salaries of the two steps using the OPM Pay Table for 2003. As stated the Agency
determined that the average amount of Monetary and QSI awards per employee during the time period
in question was $2,298.23.

The Class determined the average amount of awards separately for each award and for each year.
Since Honor awards have no cash associated with them, no average for honor awards was calculated.
For Monetary awards the class determined that the average amount a person received in 2003 was $815,
in 2004 was $940 and in 2005 was $973 per Table A-1 in the Appendix.

The Class determined that the average value of the step increases for those who received QSIs
was $1,844 in 2003, $1,970 in 2004 and $2,083 in 2005. The Class then went through an analysis to
determine the future value of a QSI and determined that the total value for a QSI was $45,681. 2 The
Class argued in its May 15, 2014 letter that the Agencys averages did not provide any computation that
calculates the recurring nature of the QSI and argues that Judge Schreffler ordered this in his Order of
March 20, 2013.

In its May 20, 2014 response, the Agency disputes that Judge Schreffler ordered that the average
award for QSIs take into account the recurring nature of QSIs. The Agency stated that Judge
Schreffler never ordered that a calculation be made in this manner or made any order on how the
average award should be calculated. Rather, he merely ordered the Agency to produce the information
to the class.

The March 20, 2013 Order stated with regard to information about QSIs that the Agency should
produce:

Electronic data showing each QSI given to employees working at the Agencys Headquarters
office in Baltimore, Maryland from April 1, 2003 through September 30, 2005. The information
should include the date of the award, the type of award, the amount of the award, the recipient of
2
There are many problems with the Class Experts analysis but they are not material because as discussed in the decision, the
future value of QSIs will not be included. For example, the Class Expert assumes that all employees are under the FERS
system of retirement and will retire at age 62 or later so that they are entitled to 1.1% of their salary for every year worked
rather than 1%. In addition, the analysis does not take into account the fact that some employees receiving or entitled to
receive a QSI might already be at the top of their step or almost the top of their step so the monetary value would be less. In
addition, on page 4, in determining the average tenure, it was stated that the average tenure at the beginning of FY2006 for
African-American males who remained active was 12.5 years. To determine the average tenure at separation, the average
tenure at separation for African-American males who separate before the end of 2011 and received a QSI during the time
period was used which resulted in an average tenure of 26 years. The number of years that an employee was given after
receiving a QSI was 13.5 years, the difference between 26 years and 12.5 years. Thus, the same numbers are not compared.
Arguably, those who received a QSI may have had longer tenures. In addition, there were no statistics provided as to how it
was determined that the average number of QSIs an employee received in the three year period was 1.16. Using these faulty
numbers, the class expert came up with an average recurring value of $39,784. To this number the Expert added the average
value for each year, 2003, 2004 and 2005. Instead, it should have been the average of these three years which is $1,966.
3
 the award, the recipients age and service computation date and the location in which the
recipient worked at the time. The Agency should produce the information in a manner that
enables calculation of the total number of QSIs, and the total monetary amounts of QSIs given.
Because QSIs include a step increase, and the amount awarded is thus reflected in each
successive years pay, the information provided should include more than simply the amount of
the step increase for that year alone. Rather, there must be sufficient information provided with
which to compute the actual value of the QSI over the duration of the employees career and
retirement. The information should include the QSIs given for the performance cycles in 2003,
2004 and 2005.

The Agency states that its expert computed the relief to be given to class members by computing
the average award according to the OFO decision. The Agency also objected to the Classs assertion
that Judge Schreffler ordered that the recurring nature of QSI awards should be included in the
calculations to determine the amount awarded. The Agency noted that Judge Schreffler did not issue an
order as to how the awards should be calculated as this had already been done by OFO. The Agency
stated that Judge Schreffler, in response to an argument made by the Class in the March 7, 2013 Status
Conference that the future effect of QSIs should be calculated, ordered the Agency to produce the
information to the class. The parties were then free to argue what the average should be.

DECISION ON RELIEF

The Agency is correct that OFO was very clear on how the average award should be calculated.
OFO ordered that the AJ determine the total amount of honor awards, monetary awards and QSIs
awarded to all employees and then divide the total amount by the total number of employees who
received awards. The Agencys expert followed this calculation and determined that $2,298.23 is the
average amount awarded and is the amount which should be awarded to class members. 3 Awarding the
class members this amount is in compliance with the very clear and plain language of OFOs Decision.
In its decision, OFO had to determine a way to compensate the class members for the time period in
question and used this very specific method to calculate the amount which should be awarded.

The Class argued that Judge Schrefflers March 20, 2013 Order required that the recurring
nature of the value of QSIs should be factored into the amount awarded to the class members. While
Judge Schreffler did order that the Agency produce information to determine the value of the QSI over
the duration of an employees career and retirement, he did not order that a different calculation from
that proscribed by OFO be used. Rather, as stated by the Agency, he ordered the Agency to produce the
information and left it to the parties to argue what the average should be. OFOs order was very clear on
exactly how the average award should be calculated. At the time OFO issued their decision they were
certainly aware that QSI awards by their nature have a value over the duration of the employees career
and retirement. Nevertheless, they gave specific instructions as to how the award for class members
should be calculated. OFO was faced with having to determine a way to equitably calculate a manner to
compensate class members for the Agencys breach and did so as set forth in their decision and taking
into consideration that very few people receive QSIs and their value can fluctuate depending on the
grade and step of the person receiving them. The parties were provided information on the future value
of QSIs in accordance with Judge Schrefflers March 7, 2013 Order. However, no persuasive argument

3
Actually, OFO ordered that the amount of honor awards, whose value is zero, should also be included in the average of the
awards. This would result in an average award of $2,272.11. However, the Agency, obviously recognizing there is no
monetary value to Honor awards, agreed to award the average of monetary and QSI awards which is $2,298.23.
Accordingly, since the Agency agreed to this figure, it will be the figure awarded.
4
has been made that the recurring value of QSIs should be used in contravention to what OFO ordered.
Again, it must be reiterated that OFOs order was very clear as to how the awards should be calculated.

Thus, in accordance with OFOs decision, each African-American male who worked for the
Agencys Headquarters Office in Baltimore, Maryland from April 1, 2003 through September 30, 2005
should be awarded $2,298.23 unless the Agency shows by clear and convincing evidence that a
particular employee is not entitled to such relief.

The Agency should provide notice by March 3, 2017 whether it intends to claim that any
employee is not entitled to such relief. A status conference to discuss this is scheduled as follows:

TIME: 10:00 a.m.

DATE: March 8, 2017
PLACE: Telephone conference call. The Agency should initiate the status conference call and provide
a court reporter for the conference call. The court reporter should be at the EEOC at 10 S. Howard
Street, Baltimore, MD.

DECISION ON WHETHER THE AGENCY HAS COMPLIED WITH PROVISION III(D) OF

THE SETTLEMENT AGREEMENT

In its decision, OFO also ordered the Agency to produce evidence showing it had complied with
provision III(D) of the April 7, 2003 settlement agreement as follows:

Additionally, the Agency shall produce evidence showing it has complied with provision
III(D) of the April 7, 2003 settlement agreement requiring the Agency to 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. Specifically, the Agency shall produce evidence that it has taken the actions
identified in the Commissioners September 8, 2006 letter. To the extent it has taken any
additional actions to correct the misapplications of its policies for granting performance
awards and the QSIs, the Agency shall produce evidence detailing these actions.

EEOC Appeal No. 0120081816 at 13-14.

Specifically in it decision, OFO found that there was no evidence to show that various
actions mentioned in the Commissioners letter of September 8, 2006 had been taken. They
stated there was no evidence that a new procedure to establish greater oversight of personnel
decisions throughout the organization had been taken by the Associate Commissioner (AC) for
the Office of Central Operations (OCO) or that the AC for OCO had reviewed all awards before
they are approved and distributed. OFO stated there was no evidence that the Deputy
Commissioner (DC) for Office of Budget Finance and Management (OBFM) was closely
monitoring the monetary awards process to ensure equitable distribution. OFO also found that
there was no evidence that a new employee appraisal program and new awards program with the
new appraisal system had been implemented. Finally, OFO stated the Agency had not shown
that it had implemented a policy or procedure to apply to the entire Headquarters Office to
effectively correct the misapplication of its policy for granting performance awards and QSIs
which resulted in underrepresentation of African-American males from April 1, 2003 to
September 30, 2005.

5
 On April 8, 2013, in compliance with the Commissions Decision and Judge Schrefflers
Order of March 20, 2013, the Agency produced documents to show that the agency complied
with the actions identified in the Commissioners letter. The Agency produced a declaration
from Reginald Wells, the Deputy Commissioner for Human Resources for the Office of Human
Resources, to show the steps taken by the AC of OCO and the DC of the OBFM. The Agency
also provided declarations from Vance Teel, Acting Associate Commissioner for International
Programs 4, and Van Nguyen, AC for OCO since May 2012 and Deputy AC for OCO from
January 2011 to May 2012, to show the steps taken by OCO. In addition, the Agency submitted
a declaration from Bonnie Doyle, AC of the Office of Personnel, Office of Human Resources, 5
which described the Agencys new appraisal system, the Performance Assessment and
Communication System (PACS) and its effect on awards. On April 9, 2013, the Agency
submitted a declaration from Ginny Skiest, Management Analyst for the Office of the Deputy
Commissioner, OBFM. On October 29, 2013, the Agency attached an additional declaration
from Wells, Philip Gambino, Assistant Deputy Commissioner for the Office of Communications
(DC OCOMM) and Jeffrey Buckner, Deputy Associate Commissioner for the Office of
Communications Planning and Technology in OCOMM, about the efforts of the Office of
Communications concerning awards.

With regard to OCO, Wells stated that a meeting was held on August 4, 2006 with
representatives from Human Resources, the Office of Civil Rights and Equal Opportunity, OCO
and the Office of Disability Operations to discuss the representation of African-American males
with regard to awards. Carolyn Simmons, the AC at the time, sent an email which was attached
to the declaration which summarized the steps to be taken. Simmons planned to have ongoing
meetings with the Assistant ACs and discuss trends based on diversity data, awards, training and
promotions. The Assistant ACS would then share and discuss this information with division
heads. The Assistant ACs would share information regarding awards with the AC before
processing and the AC could request justifications.

Teel stated that as the AAC for International Operations, he attended regular meetings
held by the former AC Simmons where she discussed trends based on the diversity data, awards,
training and promotions. He then relayed the information to the Division Director (DD) of the
Division of International Operations. The DD solicited awards from the managers and then he
and the DD reviewed the awards. The awards were then sent to the AC for final review and
approval. Teel said that he had discussions with other AAC during staff meetings and that all of
them in OCO followed the same procedure. He also said that Simmons worked with the AACS
to ensure that training was available to all, including African-American males. Teel said that
Terry Stradtman replaced Simmons as AC of OCO in January 2011 and that Van Nguyen
replaced him in May 2012. He said that they continued the actions of Simmons.

Nguyen said he had been actively involved in OCOs awards process since May 2012 and
outlined the process followed. The AC issued guidelines to the AACS who direct supervisors to
submit awards nominations. The AACs review the awards and then the AC reviews and
approves the awards. He confirmed that Stradtman also followed the same practice.

4
Teel has been in that position since January 2013. From May 2012 through January 2013 he was the Deputy Associate
Commissioner for OCO. From October 2005 through May 2012, he was the Assistant Associate Commissioner for
International Operations in OCO.
5
Doyle was in this position since February 2010. Prior to that she was the Director, Executive and Special Services Staff,
Office of Human Resources.
6
 With regard to the Office of Communications (OCOMM) (which was not referenced by
OFO in its decision or Judge Schreffler in his Order of March 20, 2013), Wells stated that he did
not recall a specific meeting with OCOMM in September 2006 but that since that time he has
had ongoing discussions with all DC level components, including OCOMM about the diversity
profile and that he is confident that during late 2006 or early 2007 he had conversations with the
DC of OCOMM about the results of the Peopleclick report and the issues of diversity. Gambino
said that each year when OCOMM receives its monetary award allocation, he reminds the ACs
of the importance of ensuring all qualified candidates receive equal consideration for awards.
Buckner said that as a manager he receives guidance from the Deputy Commissioner of
OCOMM each year about the processing of monetary awards.

With regard to OBFM, Wells stated that on August 4, 2006, he had a discussion with
Dale Sopper, the former DCBFM, about the Peopleclick Research Institute report and that on
August 25, 2006, Sopper sent him a note summarizing their discussion which was attached to his
declaration. Wells stated that Sopper said the Peopleclick report did not account for factors
manager consider when deciding to award QSIs such as whether a QSI was about to be awarded
just before a scheduled within grade step increase. Sopper said that he had met with OBFMs
ACs on August 22, 2006 to inform them of the Peopleclick report and reminded them to ensure
that all qualified candidates received equal consideration for awards and that he would continue
to remind them of this need on an annual basis.

In her declaration, Skiest stated that Sopper, and then his replacements, Mary Glenn-
Croft in FY 08 and 09 and Michael Gallagher in FY 10, 11 and 12, oversaw the awards process
in OBFM. She stated they all followed the principles articulated by Sopper in his August 25,
2006 note that the ACs and Deputy ACs should distribute monetary awards, including QSIs,
fairly and equitably to all qualified candidates. She attached memos that each of them issued to
the Associate Commissioners in OBFM each year about awards. These memorandum set forth
the procedures for making awards but do not otherwise show that the DC for OBFM was closely
monitoring the award process.

Doyle stated that in October 2006 the Agency implemented a new employee appraisal
system the Performance Assessment and Communication System (PACS) and attached copies of
the manual describing the system. She also stated that at the same time the Agency implemented
a new awards system under PACS. She also attached emails establishing the implementation of
the PACS.

In its May 15, 2014 letter submitting the Classs Expert report, the Class responded to the
affidavits submitted in April 2013. The Class stated that none of the statements indicates that the
Agency analyzed whether its purported actions fixed the problems. The Class said that the
Commissioners letter said that meetings would be held in OCO to discuss trends and that while
the Agency claimed that trends were discussed nothing was produced to show what the trends
were and how the Agency addressed them. In addition, the Class stated that while the
Commissioners letter stated that the awards process in OBFM would be closely monitored there
is no evidence that the monitoring occurred. The Class concluded by claiming that since the
Agency did not explain what was done to monitor the problem, it must be concluded that no
monitoring occurred and that no effective action was taken to correct the misapplications based
on its Experts analysis.

7
 The Agencys submissions from Wells, Teel and Nguyen (and to a lesser extent Wells
second declaration and that of Gambino and Buckner) establish that new procedures for greater
oversight of personnel decisions throughout OCO have been taken. They also establish that the
AC for OCO reviews all awards before they are approved. Thus, OFOs concern that there was
no evidence that a new procedure to establish greater oversight of personnel decisions had been
instituted by the AC for OCO or that the AC for OCO had reviewed all awards has been
satisfied. The Classs argument this requirement was not met because there was nothing
produced to show what the trends were or how the Agency addressed them fails. The Agency
has shown that the greater oversight mentioned by the Commissioners letter and the OFO
decision is being taken and that the AC is reviewing all awards.

With regard to OBFM, the Agencys submissions from Wells and Skiest very weakly, if at all,
establish that the DC for OBFM was closely monitoring the awards process. Wells merely states that
Sopper, the former DC, met with OBFMs ACs to tell them of the Peopleclick report and to remind them
to make sure that all qualified candidates receive equal consideration for awards and that he would
remind them of this annually. Skiest stated that Sopper and his replacements, Glenn-Croft and
Gallagher, followed Soppers August 6, 2006 memorandum. She attached their memoranda from each
year concerning the award process. The annual meeting or reminder or memorandum is not what is
envisioned in the language of closely monitoring the awards process. The Agency failed to show that
it took this action which was mentioned in the Commissioners letter. However, since, for the reasons
discussed below, it is determined that there was no underrepresentation of African-American males after
FY 2007, this failure is not material. Because the Agency has shown that the underrepresentation has
been corrected, the purpose of the action set forth in the Commissioners letter has been satisfied.

The declaration of Doyle (as well as the submissions of both expert reports) establishes
that a new performance appraisal system and awards program was implemented in October 2006.

The discussion of whether the Agency implemented a policy or procedure to apply to

Headquarters to correct the misapplication of its policy for granting performance awards and
QSIs which resulted in the underrepresentation of African-American males from April 1, 2003 to
September 30, 2005 focused on the expert reports. In discussing whether the Agencys efforts
to correct the misapplications were effective, both parties introduced statistics from their experts.
In compliance with the Order of March 20, 2013 of Judge Schreffler, both experts examined
awards given by the Agency between October 1, 2005 and September 30, 2011 to determine
whether there were statistically significant differences in the awards during that time period.

From Fiscal Year (FY) 2006-2011, there were different performance appraisal systems in
place. For FY 2008-2011, the PACS was in place for four different groups of employees: non-
supervisory employees; managers and supervisors; team leaders and management support
specialists; and new hires and trainees. In FY 2006 and 2007, the Performance Assessment
system was in place for these employees but it did not provide for distinctions in the ratings for
these employees as 99.99% of the ratings were satisfactory. Most Grade 15 employees were
assessed using a Non-Bargaining Performance System.

The Agencys expert separately analyzed awards for monetary, QSI and honor awards
and controlled for the employees grade, pay plan and organization. The expert also looked at
awards separately under each of the performance systems. The Agencys expert concluded that
there were no statistically significant and adverse estimated differences between African-
American males and other HQ employees in the distribution of monetary, QSI or honor awards
8
during FY 2008-2011 when controlling for pay plan, grade, organization and rating under the
PACS system. The expert concluded that during FY 2006 and 2007 when there was only the
Performance Assessment system in place, there were statistically significant estimated
differences adverse to African-American males in the distribution of monetary awards for FY
2006 and FY 2007 and in the distribution of QSI awards for FY 2006.

The expert for the Class did not control for performance and concluded that in each year
from FY 2006 to 2011 and across the years, African-American males received statistically
significant fewer monetary awards than predicted in the GS pay plan but not in the WG, WL and
WS pay plans. The Class stated that for GS 15 employees there were significantly fewer awards
to African-American males in FY 2008 and across all the years aggregated together from FY 06
to FY 11. The Class expert also examined the average dollar amount of the awards received by
African-American males and determined that the average dollar amount received per employee
was less than that per non-African-American employee to a statistically significant amount in
FY06, 08, 10 and 11 and in aggregate across all the years from FY06 to 11. The expert stated
that the dollar amount of the award per award was only statistically lower in FY 11.

With regard to QSI awards, the Class expert concluded that statistically significantly
fewer African-American males received QSIs in FY 06, 09 and 10. The expert stated that when
the pool was restricted to those who are eligible for awards (had a performance rating of 3.0 or
higher under PACS) only FY 09 showed a statistically significant difference in the number of
African-Americans who received QSIs.

The Class expert concluded that there was no adverse statistically significant difference
in the incidence or amount of SES awards received by African-American males. The expert
concluded that African-American males received statistically significantly fewer honor awards in
FY 2009 and in aggregate from FY 06 to FY 11.

Thus, both the Agency and the Class conclude that there is a statistically significant
difference in the amount of monetary awards given to African-American males in FY 06 and FY
07 and in the amount of QSIs given to African-American males in FY 06.

The Agency argued that this disparity in FY 06 and 07 existed because the Performance
System in place in FY 06 and 07 did not create any meaningful difference in ratings as 99.99%
of the ratings were satisfactory. The expert argued when ratings were ignored for FY 08 and FY
09, there were similar in magnitude statistically significant differences in awards and thus had
performance been accurately recorded in FY 06 and 07 there would have been no statistically
significant difference in the awards to African-American males. The expert stated Thus the
estimated awards differences in 2006 and 2007 appear consistent with differences in actual, but
unrecorded, performance. Agency Expert Report.

The Agencys experts argument is not persuasive. While having a different performance
rating system in effect in FY 06 and FY07 and controlling for it in examining the awards given
to class and non-class members, may well have resulted in no statistically significant difference,
the fact remains that such a system was not in effect. One cannot extrapolate back from the FY
08 to 11 time periods and conclude that performances in FY 06 and 07 would be similar.

The Classs expert argued that the results from FY 08 to 11 which showed no statistically
significant difference in the awards given to African-American males when performance was
9
controlled for should be discounted. The Class argues that the performance ratings are biased
against African-American males which then leads to bias in the awards process.

I conclude that there was a statistically significant difference in the monetary awards
given to African-American males in FY 06 and 07 and in the QSIs given to African-American
males in FY 06. I conclude that from FY 08 to FY 11, there is no statistically significant
difference in the awards given to African-American males when controlling for performance
ratings, amongst other factors. The Classs argument that performance ratings are biased and
thus should be discounted is not germane to this action. This decision is issued pursuant to
OFOs Order to determine the relief which should be awarded from 2003 to 2005 and to
determine whether the Agency has complied with provision III(D) of the April 7, 2003
settlement agreement. The question of whether the PACS is biased is not at issue at this time in
this action. 6 By implementing the PACS and new award system, the Agency has taken actions
which have corrected the misapplication of its policies for granting awards and QSIs and ensured
fair and equitable distribution of these awards. The Classs contention that the PACS is biased
thus is a question for another proceeding. Accordingly, since there is no statistically significant
difference in the awards given to African-American males from FY 08 to FY 11, the Agency has
shown that it has taken actions to correct the misapplications of its policies for granting
performance awards and QSIs since FY 08 and complied with provision III(D) of the April 7,
2003 settlement agreement.

It must be emphasized that the conclusion about the FY 06 and FY 07 time period is not
the equivalent of a finding of discrimination as this decision is only issued to comply with OFOs
order concerning a breach of settlement. There has never been a hearing held or finding made of
discrimination. Had a hearing taken place, other evidence in addition to statistical evidence
might well have explained the difference in awards in FY 06 and 07. However, only for
purposes of determining whether the Agency corrected the disparities in its policies, it is
determined that they were not corrected for FY 06 and 07 and that they have been corrected from
FY 08 to 11. 7

6
In fact, as mentioned by OFO, the subsequent class case of Wilkerson et al. v. SSA raises the question of whether African
American males have been discriminated against with regard to awards since April 7, 2003 and is currently pending before
the Commission. It may be appropriate to raise the question of the allegedly biased nature of the PACS in conjunction with
that case or in a new class action relating specifically to the PACS.
7
As stated, this decision results from the OFOs decision in Jefferson et al. v SSA (EEOC Appeal No. 0120081816), wherein
OFO ordered the AJ to determine the amount of awards to be given for employees from April 1, 2003 to September 30, 2005
because of the Agencys breach and to determine whether the Agency has complied with provision III(D) of the April 7,
2003 settlement agreement. This has been done in the instant decision. No further award is made for the disparities in
awards in FY 06 and FY 07 as this was not ordered by OFO. OFO is the entity which has jurisdiction to determine breaches
of settlement agreements and remedies and it has not done so other than as ordered in Jefferson and addressed in this
decision.
10
DECISION

For the reasons discussed above, the following decisions are made:

1. Each African-American male who worked for the Agencys Headquarters Office in Baltimore,
Maryland from April 1, 2003 through September 30, 2005 should be awarded $2,298.23 unless
the Agency shows by clear and convincing evidence that a particular employee is not entitled to
such relief;

2. The Agency has shown that it has taken the actions set forth in the SSA Commissioners Letter
of September 8, 2006;

3. The Agency has shown that it has taken actions to correct the misapplications of its policies for
granting performance awards and QSIs since FY 08 and complied with provision III(D) of the
April 7, 2003 settlement agreement;

February 13, 2017

______________________

_____________________________
MARY ELIZABETH PALMER
ADMINISTRATIVE JUDGE

11