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A federal judge has certified a class action age discrimination suit brought by Social Security Administration (SSA) workers who claim the agency manipulated their work descriptions during a “restructuring” in order to cheat them out of raises. In his 16-page opinion in Duffy v. Massinari, federal Judge John R. Padova of the U.S. District Court for the Eastern District of Pennsylvania rejected the argument of government lawyers, who oppose class certification, that the lawsuit makes claims that were never made in the original charge before the Equal Employment Opportunity Commission. Instead, Padova found that “the scope of the investigation that could reasonably be expected to grow out of the original EEOC claim is sufficiently broad to encompass the claim as brought in the amended complaint.” The ruling is a victory for Kohn Swift & Graf attorney George W. Croner, who filed the suit on behalf of Richard Duffy and 129 other SSA workers. In the suit, Duffy claims that he and 129 other older workers were discriminated against on the basis of age when, in the process of restructuring its work force, the SSA failed to upgrade the pay scale for their positions. The suit alleges that SSA changed and manipulated work descriptions, and reassigned work, in an effort to justify the decision not to upgrade the pay scale. But at the same time, SSA upgraded the duties and pay scale of other younger employees, said the suit. Duffy sought to represent a class including: “All reconsideration non-disability examiners and reconsideration reviewers over the age of 40 who were employed with the Social Security Administration’s Office of Disability Operations in Baltimore, Md., and in six other program centers nationwide on or after March 20, 1995, and who did not have their positions upgraded to GS-12 by SSA after SSA’s implementation of the GS-105 series standard.” Assistant U.S. Attorney Barbara Rowland, along with Justice Department attorneys Melissa Hart and Keisha Dawn Bell, argued that the class should not be certified since Duffy failed to exhaust his administrative remedies. The specific factual claims in Duffy’s suit, they said, were not raised in the administrative proceedings before the EEOC. Duffy’s EEOC complaint, they said, “focused exclusively on whether the duties already performed by plaintiff justified a GS-12 classification.” As a result, they argued, he “cannot litigate in the district court those claims that were not raised at the administrative level.” Padova agreed that as a general principle, “Where a plaintiff fails to pursue an administrative claim before the EEOC, that claim is waived in a subsequent lawsuit.” On the one hand, Padova said, “Once a discrimination charge has been filed, the scope of a judicial complaint is not limited to the four corners of the administrative charge.” Instead, Padova said, the scope of the lawsuit is defined not by the EEOC charge , but by “the scope of the [EEOC] investigation which can reasonably be expected to grow out of the charge.” The legal analysis “turns on whether there is a close nexus between the facts supporting each claim or whether additional charges made in the judicial complaint may fairly be considered explanations of the original charge or growing out of it,” Padova said. Padova found that Duffy’s claims met the test. “Though the additional factual allegations in the amended complaint posit a somewhat different manner of carrying out the alleged discrimination, the new allegations would have fallen squarely within the scope of a proper EEOC investigation ensuing from the original administrative claim,” Padova wrote. “Underlying plaintiff’s claim challenging the SSA’s decision not to upgrade the position were allegations of intentional age discrimination. Regardless of the variation in particular alleged facts, plaintiff’s amended complaint brings essentially the same intentional age discrimination claim as in the administrative proceeding, with a correspondingly significant overlap in factual bases.” While other members of the class may not have exhausted their claims by filing an EEOC complaint, Padova found that they are properly included in the class action under the single filing or “piggy back” rule. Padova also found that the class meets all four of the requirements of Rule 23(a) of the Federal Rules of Civil Procedure — numerosity; commonality; typicality; and adequacy of representation. Croner argued that the case should be certified under Rule 23(b)(2), which requires that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Padova agreed, saying “Rule 23(b)(2) clearly applies to this case of alleged intentional age discrimination. The defendants are alleged to have re-assigned duties, manipulated job descriptions, and refused to upgrade pay grades for unlawfully discriminatory reasons. These alleged actions and refusals are generally applicable to the class, and thus make injunctive relief appropriate to the class as a whole.”

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