[Redacted], Elly C., et al., 1 Class Agent,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 7, 2023

Petition No. 2022004998 (E.E.O.C. Mar. 7, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elly C., et al.,1 Class Agent, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Petition No. 2022004998 Request No. 2019005093 Agency No. 03-0224-SSA, 03-0208-SSA DECISION ON A PETITION FOR CLARIFICATION On September 21, 2022, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for clarification on its own motion to examine the enforcement of an Order set forth in EEOC Request No. 2019005093 (June 7, 2022). The Commission accepts this petition for clarification pursuant to 29 C.F.R. § 1614.503. BACKGROUND On February 27, 2003, two Class Agents filed a complaint alleging Agency discriminated against a class of employees on the bases of race (African-American) and sex (female) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. An EEOC Administrative Judge (AJ) certified the following class: African-American females who were employed at 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 [the] General Counsel and the Office of the Inspector General, in general schedule grades seven through thirteen (GS-7 through GS-13), after December 9, 2000, who have not been promoted. 1 This case has been randomly assigned a pseudonym which will replace the Class Agent’s name when the decision is published to non-parties and the Commission’s website. 2022004998 2 The Agency’s final order declined to fully implement the certification of the class, but the Commission upheld the certification of the class in EEOC Appeal No. 07A50060 (May 5, 2006), request for reconsideration denied, EEOC Request No. 05A60801 (July 5, 2006). On December 13, 2013, the AJ issued an Order Entering Judgment finding that the Class prevailed in establishing class-wide discrimination against non-supervisory GS-11 African- American female employees who were denied promotions to the GS-12 grade level from December 9, 2000 to the present based on the Agency’s unrebutted or unexplained statistical evidence of disparity in promotions. The AJ awarded $762,659.19 in attorneys’ fees and $23,571.73 in costs. The AJ did not find that the Class proved discrimination with respect to any other grade-level positions or that the two Class Agents established discrimination with respect to their individual EEO complaints. The Agency issued a final order rejecting the AJ’s finding of discrimination and filed an appeal with the Commission. On appeal, in EEOC Appeal No. 0720140019 (June 26, 2019), the Commission found that the evidence supported the AJ’s conclusion of unlawful discrimination with respect to the promotion of GS-11 African-American female employees to the GS-12 grade level but not with respect to African-American female employees at other grade levels or as alleged by the two Class Agents in their individual complaints. We also found that the awards of attorneys’ fees and costs were appropriate. The Agency filed a request for reconsideration, contending the Commission erred in finding that the Class established a statistically significant disparity in promotions for African-American females to the GS-12 level. While the request for reconsideration was pending, the Agency notified the Commission that the Class Agent filed a class action complaint in federal court and requested that the Commission dismiss the entire case, including compliance matters. In EEOC Request No. 2019005093, the Commission denied the request for reconsideration, finding that the Agency’s request reiterated its previously raised arguments and did not meet the criteria of 29 C.F.R. § 1614.405(c). Regarding the civil action filed by the Class Agent, we noted that the civil action specifically excluded as plaintiffs the non-supervisory GS-11 African-American female employees who were denied promotions to the GS-12 grade level from December 9, 2000, to the present. Therefore, the civil action did not encompass the same matters as the request for reconsideration. We ordered the Agency to take the following remedial actions: (1) to identify all affected African-American female employees who applied for but were not selected for promotion, provide each of the class members with a copy of the EEOC’s decision, and inform class members that they may secure attorney or non-attorney representation of their own choosing to assist in securing relief and that they may seek relief in accordance with 29 C.F.R. § 1614.204; (2) to “conduct an inquiry pursuant to §717(b) of Title VII to determine what factors are responsible for the significant statistical disparity in promotion of Black females beyond the GS- 11 level and propose solutions for eliminating such disparities in the future”; (3) to pay attorneys’ fees in the amount of $762,659.19 and costs in the amount of $23,571.73; and (4) to post a notice. 2022004998 3 The Order also specified that the Agency had to submit a compliance report. The matter was assigned to a Compliance Officer and docketed as Compliance No. 2022003442 on June 8, 2022. We have docketed the instant petition for clarification on our own motion to clarify provision (2) of our Order. In response, the Agency requests an additional 60 calendar days from the date of the Commission’s decision on the petition for clarification to comply with provision (2) of the Order. ANALYSIS AND FINDINGS The Commission’s regulations provide that its Office of Federal Operations may, on its own motion or in response to a petition for enforcement or in connection with a timely request for reconsideration, issue a clarification of a prior decision. A clarification cannot change the result of a prior decision, or enlarge or diminish the relief ordered, but may further explain the meaning and intent of the prior decision. 29 C.F.R. § 1614.503(c). We ordered the Agency in provision (2) to “conduct an inquiry pursuant to §717(b) of Title VII to determine what factors are responsible for the significant statistical disparity in promotion of Black females beyond the GS-11 level and propose solutions for eliminating such disparities in the future.” We now clarify that based on the finding of a statistically significant statistical disparity in the promotion of nonsupervisory GS-11 African-American female employees, the Agency must review its programs to identify the existence of barriers to equal opportunity and identify the likely factor (or combination of factors) that has adversely affected the employment opportunities of the group in question. The Agency shall identify the existence of barriers in the promotion of these GS-11 African-American females and propose solutions for eliminating the identified disparity in their promotion. The Agency shall include these measures and results as part of its barrier analysis in its annual MD-715 report submitted to the Commission for the next five years.2 During this period, the Agency shall monitor these measures for at least five years to ensure that their implementation has effective and tangible results. CONCLUSION Accordingly, we REMAND this matter back to the Agency for further processing in accordance with the clarifications provided in this decision and the Order below. 2 EEOC Management Directive 715 (MD-715) is the policy guidance that the Commission provides to federal agencies for their use in establishing and maintaining effective programs of equal employment opportunity under Section 717 of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. MD-715 provides a roadmap for creating effective EEO programs for all federal employees as required by Title VII and the Rehabilitation Act. 2022004998 4 ORDER The Agency is ORDERED to take the following remedial actions: 1. To the extent it has not done so already, within 120 calendar days of the date this decision is issued, the Agency will identify all affected African-American female employees who were employed at 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 the Inspector General, in general schedule eleven (GS-11), after December 9, 2000, who applied but were not selected for promotion. The Agency will provide each of these class members a copy of the Decision. The Agency further will inform class members that they may secure attorney or non- attorney representation of their own choosing to assist in securing relief. The class members may seek relief in accordance with 29 C.F.R. § 1614.204. 2. As part of its next MD-715 report, the Agency must include a barrier analysis to identify areas where barriers may operate to exclude African American females from promotion beyond the GS-11 level. Pursuant to MD-715, the barrier analysis process is an investigation of anomalies, or triggers, found in an agency’s employment-related policies, procedures, practices, and conditions. The goal of the investigation is to identify the root cause(s) of those anomalies and to develop plans for eliminating the barriers that impede the participation and/or promotion of African-American females beyond the GS-11 grade level. The Agency Oversight Division (AOD) of EEOC’s Federal Sector Programs (FSP) will review the Agency’s submissions in its MD-715 reports, monitor its progress and provide appropriate feedback. The Agency must continue updating its barrier analysis for African-American females beyond the GS-11 level and report its progress in eliminating those barriers on its MD-715 submissions for the next five years or until EEOC’s AOD determines it is no longer necessary. 3. To the extent that it has not already done so, within 60 calendar days of the date this decision is issued, the Agency will pay attorneys’ fees in the amount of $762,659.19 and costs in the amount of $23,571.73. 4. To the extent that it has not already done so, within 30 calendar days of the date this decision is issued, the Agency must issue a Posting of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format and maintained for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees and applicants for employment are customarily posted at the Agency facility(ies). The Agency shall take reasonable steps to ensure that said notices are not altered, defaced or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2022004998 5 The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting evidence that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Class Agent and his/her representative. If the Agency does not comply with the Commission’s order, the Class Agent may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Class Agent also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Class Agent has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Class Agent files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. CLASS AGENT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. 2022004998 6 Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Class Agent’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 7, 2023 Date