Where can a federal employee find recourse?

Joe Davidson
Columnist January 9, 2012

It’s a case only government lawyers could love.

For regular people, it’s hard to understand why Barbara Murchison, whom the Social Security Administration acknowledged discriminating against, can’t get her job back.

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. View Archive

These are the basic facts of a long and complicated story.

It starts in 2001, when Murchison was removed from her position as a team leader in the SSA’s Woodlawn, Md., headquarters, just outside Baltimore. After a decision by an Equal Employment Opportunity Commission administrative judge, the SSA conceded she had been discriminated against for reasons of race, sex and age, among other things. Though the agency agreed to restore Murchison, a black woman who was then 51, to her team leader position, it did not.

In July 2008, the EEOC granted her petition to have the commission’s order enforced.

“The Agency shall return complainant to the position,” the EEOC ordered.

When the SSA did not comply, Murchison sued in federal court. The suit was dismissed in January 2010. The judge did note, however, that Murchison had not been reassigned to her former position.

Murchison is appealing the judge’s decision. It went against her at least in part because the EEOC did not issue the necessary formal finding that the SSA failed to comply with the EEOC decision. Murchison still works for the SSA but has not been restored to her team leader position.

This is a lesson in that old-school notion of trust but verify. The EEOC initially accepted the SSA’s contention that it had followed the commission’s orders and restored Murchison. But the SSA had not done so.

The situation is now so complicated because the EEOC accepted the SSA’s erroneous claim that Murchison got her job back. Both agencies failed to protect this federal employee.

“We lost at the District Court because SSA successfully lied to the EEOC,” said Phillip R. Kete, Murchison’s attorney.

A February 2009 letter to Kete from the EEOC said “the agency (SSA) has provided us documentation sufficient to demonstrate that it has taken corrective action(s) ordered in the Commission’s decision.”

But the EEOC later admitted that its acceptance of the SSA contention was based on bad information. In an August 2010 letter to Sen. Barbara A. Mikulski (D-Md.), who had inquired on behalf of her Rosedale constituent, the EEOC said, “After further review of the agency’s compliance submissions, it appears that this determination was erroneous.”

As is sometimes the wont of lawyers, process trumps substance in this case. A brief filed by the Justice Department, which represents the SSA, says the August 2010 letter did not have “any valid legal effect.”

“The government’s position is that under the law, Ms. Murchison’s claim should be resolved by the EEOC, not the federal court,” said Marcy Murphy, spokeswoman for the U.S. attorney’s office in Baltimore. “If it is true that the Social Security Administration has not complied with the EEOC order, the EEOC may order a remedy. Ms. Murchison can then sue in federal court if she is not satisfied with EEOC’s remedy.”

In a separate, and curious, statement, Justice said the SSA did offer Murchison her position back, but the post “did not carry formal team leader duties.” The statement did not explain how it could be the position she previously held without formal team leader duties. Murchison declined the offer.

The SSA is confident Murchison’s appeal of the judge’s ruling will fail. “We deny all of the allegations made by Ms. Murchison about the agency, and we expect to prevail in litigation currently pending in federal court and the EEOC,” an SSA statement said.

Although the SSA statement said it denies all of her allegations, a July 14, 2006, agency letter to her attorney told a different story. It said that the SSA had “reviewed and considered the evidence of record” and that the administrative judge’s decision was adopted “without modification. . . . It is the final order of the SSA that the complainant was discriminated against, as set forth in the AJ’s [administrative judge’s] decision.”

“It’s been hell. It’s just one episode after another,” Murchison says.

Not only does she feel professionally insulted, but she said the drama has taken a toll in other ways. She sometimes needs pills to sleep and to calm her shaky nerves.

“I have a heart condition, and my blood pressure has increased,” she said. “I’m on three different medications now. It’s really affected me mentally and physically. It’s the result of a lot of stress, a lot of stress.”

Follow the Federal Diary on Twitter: @JoeDavidsonWP.

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