After almost ten years of litigation, the Social Security Administration has agreed to settle a major class action involving discrimination in promotion against employees with disabilities. The case is Ronald Jantz, et al. v. Astrue, Commissioner, Social Security Administration, EEOC No. 531-2006-00276X. A review of the history of this litigation shows the arduous and lengthy course class action litigation often takes. As often happens in class action litigation, the defendant very aggressively fought against certification of the class.
The initial complainant, Ronald Jantz, is totally deaf. He worked as a GS-12 Management Analyst for the Social Security Administration (SSA) in Baltimore, MD. He used a TDD for telephone usage, and had a personal assistant at work who typed for him on a laptop computer when he attended meetings, training or conferences. In 2005, Jantz applied for several GS-13 Lead Management Analyst positions. He made the “Best Qualified List” (BQL), but was not selected.
In 2005, Jantz filed an EEO complaint and sought to serve as the class agent in a class action complaint. Jantz provided statistics that showed that non-disabled candidates who made the BQL had an 11% likelihood of being selected, whereas disabled candidates had only a 7% likelihood. He sought to bring his case as a class action, representing all “targeted” disabled candidates who made the BQL but were not selected. The EEOC defines “targeted” disabilities as: deafness, blindness, missing extremities, partial paralysis, complete paralysis, convulsive disorders, mental retardation, mental illness, and genetic and physical conditions affecting limbs and/or spine. EEOC Management Directive 715 (MD-715). Jantz argued that the SSA gave selecting officials unfettered discretion and allowed for unchecked subjective decision-making.
Three years later, in 2008, the EEOC Administrative Judge certified a class defined as, “All current and former employees with targeted disabilities at the Social Security Administration who, on or after August 22, 2003, have applied for and made a Best Qualified List for promotion, but were not selected for promotion.”
The agency rejected the Administrative Judge’s decision, and issued a final decision denying class certification. Jantz appealed this decision, and two years later, the EEOC Office of Federal Operations agreed with Jantz and reinstated the class certification.
In response, the agency moved for reconsideration, on the grounds that the US Supreme Court had just agreed to hear a class certification issue, Dukes v. Walmart, 603 F.3d 571 (9th Cir. 2010). The EEOC denied this motion. But in 2011, when the Supreme Court issued the Dukes decision, 131 S. Ct. 2541 (2011), a seminal ruling in class action employment law, the agency petitioned the EEOC to decertify the class. Three years later, in 2014, the EEOC Administrative Judge denied this motion.
This past summer, the AJ agreed to put the case on hold so that the parties could engage in mediation, with a retired United States Magistrate Judge serving as mediator. On Sept. 30, 2014, the parties entered into a final and binding settlement agreement.
Pursuant to the agreement, the SSA will establish a $10 million fund for the payment of claims to eligible class members, as well as Class Counsel’s legal fees and expenses, and payments to Mr. Jantz and the other class agents, as well as administrative costs. The SSA also agreed to a package of extensive programmatic changes that are designed to retain and support employees with disabilities and to broadly enhance the opportunities for career success and advancement of such employees. These programmatic changes include major revisions to SSA’s reasonable accommodation processes, technology processes, training content, and provision of assistive supports for Agency employees with disabilities. The reasonable accommodation changes, in particular, will create a new centralized office where a multidisciplinary team of specialists will promptly and expertly handle requests that do not lend themselves to ready approval by a first-line manager.
Employees contemplating serving as class agents and bring class actions need to be aware that employers will aggressively oppose the certification of the class, meaning that any personal relief to the class members will be far in the future.
— This blog entry was written by Elizabeth L. Newman. You may reach her at enewman@kcnlaw.com.
