The Washington Post

Federal worker prevails in discrimination case against Social Security


During this extended period of cloudy federal employee horizons comes a wee bit of sunshine, the story of a worker who took on Uncle Sam and won.

But it took her more than a decade to do it.

Joe Davidson writes the Federal Diary, a column about federal government and workplace issues that celebrated its 80th birthday in November 2012. Davidson previously was an assistant city editor at The Washington Post and a Washington and foreign correspondent with The Wall Street Journal, where he covered federal agencies and political campaigns. View Archive

As the federal workforce endures a two-year freeze on basic pay rates and faces a possible increase in pension payments and as new employees will have to contribute more to their retirement program, Barbara Murchison has reason to smile.

A decision by the U.S. Court of Appeals for the 4th Circuit could finally end her employment discrimination case against the Social Security Administration (SSA), which began 11 years ago.

“I’m just full of emotions,” Murchison said. “I was happy that justice . . . that somebody saw right in the wrongs the agency has done to me. I was really elated and excited that [the court] made the right decision.”

Barbara Murchison (Courtesy of Barbara Murchison)

But in a quirk of fate, the Feb. 15 opinion, which overturned the main points of a District Court decision, came two weeks after Murchison retired in January.

“I wish I had known,” she said.

As we reported in January, Murchison was reassigned from her team leader position at Social Security’s main office in Woodlawn, Md., in 2001. The agency conceded that she had been discriminated against, for reasons of race, age and sex, among others, after a ruling by an Equal Employment Opportunity Commission (EEOC) administrative judge. SSA agreed to give Murchison her gig back but did not.

Social Security, however, erroneously said it had restored Murchison to her position, and the EEOC accepted that false assurance.

This left Murchison in limbo. She fought to get her job back even after the District Court ruled against her at least in part because the EEOC did not issue a formal finding that the SSA had not followed the EEOC’s order to restore Murchison. She took it to the Court of Appeals, whose opinion really makes the Social Security Administration look bad.

The opinion said the lower court’s decision and the EEOC’s acceptance of Social Security assurances were based on “what can only be deemed a deceptive and false assertion of compliance made by the SSA.”

And consider this passage from the court’s opinion: “To this day, despite two rulings in the administrative process that required the SSA to return Murchison to her prior position or its equivalent, the first dating back over six years to September 2005, the SSA has steadfastly not complied. Justice was not accomplished, and was in fact subverted, because the EEOC improperly accepted the SSA’s compliance report and because the SSA misled the EEOC.”

If the federal government is going to be a model employer, as it says it wants to be, it can’t have one of its major agency’s lying to enforcement agencies and subverting justice due its employees.

The EEOC also does not look good. It failed to protect Murchison.

The EEOC previously said it would not comment on the case because of the Privacy Act. The SSA had no comment. Too bad, because I’d really like to hear the folks at Social Security try to explain their way out of this one. In January, an SSA statement said that “we deny all of the allegations made by Ms. Murchison about the agency, and we expect to prevail” in the case.

They got that wrong, on both counts.

The SSA did not prevail. And though the January statement denied all of Murchison’s allegations, the agency previously acknowledged it had discriminated against her. In a July 14, 2006, letter to one of Murchison’s attorneys, the SSA said that it had “reviewed and considered the evidence of record” and that the administrative judge’s decision in favor of Murchison was adopted by the agency “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.”

So now Murchison can get her job back, but she’s retired.

Her retirement won’t be an issue, according to her attorney, Phillip R. Kete. “Retirement won’t affect her right to be reinstated,” he said. “If she had her old job . . . she would have happily stayed on another couple of years.”

Murchison agrees.

Had the SSA honored the administrative judge’s decision, she would not have endured years and years of stress that have taken a toll on her health, she said. Now 65, with heart trouble and high blood pressure, Murchison was weary.

“I really got tired of waiting,” she said. “It’s been a waiting game for years. You wait and you wait and hope things will be resolved soon.”

The Court of Appeals decision didn’t come soon enough.

Given her way, the case would have been resolved long before 11 years lapsed, but, she said, “I’m satisfied that it finally happened.”

Previous columns by Joe Davidson are available at Follow the Federal Diary on Twitter: @JoeDavidsonWP.

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