01A00473
03-29-2002
Agency.
Agnes Z. Davis v. Department of Agriculture
01A00473
March 29, 2002
.
Agnes Z. Davis,
Claimant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A00473
Agency No. 870807
Hearing No. 110-99-8055X
DECISION
This claim is before the Commission under the terms of an October
1993 class action settlement and an EEOC Order implementing it.<1>
Pursuant to the Order, the Commission docketed the instant appeal
upon the completion of the fact-finding procedure on claimant's case.
The fact-finding procedure was established to examine claims for relief
of class members certified in Sonia Byrd v. Department of Agriculture,
EEOC Hearing No. 250-90-8171X, in accordance with the terms of an October
10, 1993, settlement between the class representative and the agency.
For the reasons that follow, we find that claimant is entitled to relief.
INTRODUCTION
The history of the underlying class action is well-documented, and for
the most part will not be recounted here.<2> Briefly, the class agent
filed a formal class EEO complaint against the agency on August 7,
1987, alleging that the qualification requirements for positions in
the GS-475 series of the agency's Farmers Home Administration (FmHA)
discriminated against women.<3> The class action challenged the
requirement that persons seeking GS-475 positions possess a degree in
agriculture or have completed thirty semester hours of agriculture-related
course work (positive education requirement). An Administrative Judge
(AJ) recommended certification of a class, which was modified by the
Commission. The Office of Personnel Management (OPM) was also added
as a party to the complaint. Byrd v. Department of Agriculture, EEOC
Request No. 05900291 (May 30, 1990).
On October 10, 1993, the parties entered into a settlement. It provided,
in pertinent part, that OPM would revise the qualification standards
for GS-475 positions in order to permit an individual to qualify
through education only, experience only, or a combination of the two.
It further stated that the agency would institute an individual claim
system, pursuant to 29 C.F.R. � 1614.204(1)(3), for class members
to make claims for individual relief if they believed that they were
affected by the positive education requirement for the GS-475 series.
Potential relief for individual class members was limited to those who
would have been qualified for positions in the GS-475 series under the
revised standard any time between October 12, 1986 and August 7, 1994.
Potential relief for individual class members was also limited to the
relief that would have been available under Title VII of the Civil
Rights Act of 1964, as amended, prior to the Civil Rights Act of 1991,
and did not include compensatory or punitive damages.
BACKGROUND
On March 28, 1995, claimant submitted a claim for individual relief under
the settlement. Claimant argued that she qualified for a GS-475 position
on October 12, 1986, and therefore was entitled to retroactive promotion
to a GS-475 position, with step increases and appropriate career- ladder
promotions. In support of her claim, claimant relies on her employment
history at the agency. Claimant has worked for the agency since 1980.
Claimant was a GS-1101-5 County Office Clerk from October 1980 until
December 1988, a GS-1101-6 County Program Technician from December
1988 until December 1991, and a GS-1101-7 County Loan Technician from
December 1991, until the filing of the instant claim.
On October 28, 1995, the agency issued a decision denying claimant's
claim. The agency concluded that while claimant would have qualified
for a GS-475 position under the revised standard on October 12, 1986,
she failed to identify a position that she would have applied for, or
would have qualified for, under the new standard. From the agency's
decision, claimant filed an appeal with the Commission.
On July 3, 1997, the Commission issued a decision addressing claimant's
appeal, as well as 78 other separate appeals in this class action.
Mitchell, et al. v. Department of Agriculture, EEOC Appeal No. 01960816
(Mitchell I). The Commission determined that, where the claimant shows
that she was a member of the class and was affected by the positive
education requirement, the burden of proof shifts to the agency to show,
by clear and convincing evidence, that it had legitimate reasons for
not placing claimant into the position. The Commission concluded that
65 of these 79 total appeals, including this one, required additional
fact-finding. The Commission further found that the claimant's contention
that she trained new hires for GS-475 Assistant County Supervisor
positions between 1986 and 1993 and did not seek these positions because
of the positive education requirement was sufficient for the purpose of
remanding her claim for further fact-finding. Id. at note 16.
From the decision in Mitchell I, the Commission referred the claim
to a neutral fact-finder, who was tasked with determining claimant's
entitlement to relief, and, thereafter, issuing recommended findings
of fact. Upon review of the instant claim, the fact-finder concluded
that claimant was entitled to a GS-475-7 position, retroactive to
July 1, 1987, with back pay and appropriate grade and step increases.
From the fact-finder's recommended findings, the instant appeal was
automatically docketed.
ANALYSIS AND FINDINGS
As previously mentioned, to establish entitlement to individual relief,
claimant must show that she is a member of the class and was affected
by the positive education requirement. The burden of proof then shifts
to the agency to show by clear and convincing evidence that the claimant
is not entitled to relief. See also, Mitchell, et al. v. Department of
Agriculture, EEOC Petition No. 04970021 (December 4, 1997) (Mitchell II).
Herein, claimant has established that she is a class member and that
she was adversely affected by the positive education requirement.
Specifically, claimant has established that she worked for the agency
throughout the relevant period, October 12, 1986, through August 7, 1994;
that she did not qualify for a GS-475 position under the old standard,
but would have qualified under the new standard; and that she was deterred
from applying for such positions because of the existence of the positive
education requirement.
Under the revised qualification experience standards, a claimant qualifies
at the GS-475-7 level if she has one year of specialized experience
equivalent to at least the GS-475-5 grade.<4> It is uncontested that
claimant met the specialized experience requirement as of October
12, 1986. By October 12, 1986, claimant had worked for the agency as
a GS-1101-5 County Office Assistant for six years, and was therefore
qualified, through specialized experience, for a GS-475-7 position.
The earliest position for which claimant expressed an interest was a
GS-475-7 Assistant County Supervisor position which became available on
July 5, 1987, in Florence County, South Carolina. We find that claimant
was qualified for the position.<5> The burden now shifts to the agency
to show, by clear and convincing evidence, that claimant would not have
received the position.
The agency chose not to challenge claimant's claim to the Florence
County position. In fact, in an attempt to resolve claimant's claim,
the agency offered claimant a settlement based upon her entitlement to
the GS-475-7 Assistant County Supervisor position in Florence County,
South Carolina, retroactive to July 5, 1987, with step increases and
appropriate career-ladder promotions.<6>
Along with its offer to resolve the claim, the agency included a salary
computation chart. The chart quantifies claimant's estimated earnings
had she qualified for the Florence County position on July 5, 1987.
Claimant did not object to the agency's calculation of lost earnings,
however, she rejected the agency's settlement offer, arguing that she
is entitled to $3,000,000.00, representing lost earnings and gain she
would have realized if she invested those earnings in the stock market.
The claim for stock market earnings represents a claim for compensatory
damages. Compensatory damages are not available under the terms of the
settlement agreement.
CONCLUSION
The claimant is entitled to the back pay and other benefits she would have
received had she been placed in the GS-475-7 Assistant County Supervisor
position in Florence County, South Carolina, effective July 5, 1987,
and all step increases and appropriate career-ladder promotions.
ORDER
(1) The agency shall retroactively award claimant the GS-475-7 Assistant
County Supervisor position in Florence County, South Carolina, effective
July 5, 1987, and all step increases and appropriate career-ladder
promotions.
(2) If there is a dispute about the amount of back pay or other benefits
due, the agency shall issue a check to the claimant for the undisputed
amount within 90 calendar days of the date this decision becomes final.
The claimant may petition for enforcement or clarification of the amount
in dispute. The petition for clarification or enforcement shall be filed
with the Compliance Officer, at the address referenced in the paragraph
entitled "Implementation of the Commission's Decision."
The agency is further directed to submit a report of compliance, as
provided in the paragraph entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due the claimant,
including evidence that the corrective action has been implemented. The
agency shall send a copy of this report, together with any attachments
and enclosures, to the claimant.
ATTORNEY'S FEES (H0900)
If claimant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the claimant. If the agency does not comply with the Commission's order,
the claimant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The claimant 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 claimant 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 claimant 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the claimant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
CLAIMANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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.
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 29, 2002
Date
1The Order was made in Mitchell, et al. v. Department of Agriculture,
EEOC Appeal No. 01960816 (July 3, 1997). It was clarified in Mitchell,
et al. v. Department of Agriculture, EEOC Petition No. 04970021 (December
4, 1997).
2See, e.g., Byrd v. Department of Agriculture, EEOC Appeal No. 01890012
(December 11, 1989), reconsideration granted, Byrd v. Department of
Agriculture, EEOC Request No. 05900291 (May 30, 1990); Byrd v. Department
of Agriculture & Office of Personnel Management, EEOC Appeal No. 01913964
(March 17, 1992).
3As stated in Mitchell, the primary occupational titles for jobs in the
GS-475 series included District Director, Assistant District Director,
County Supervisor, and Assistant County Supervisor.
4 Specialized experience related to a demonstrated knowledge of the
principles and practices of agricultural production, practical marketing
of agricultural products by producers and sources of information
on this, credit principles and practices, and federal agricultural
programs. The qualification standard's listed examples are (1) applying
appropriate credit principles and practices in determining the viability
of agricultural operations, (2) solving farm production and marketing
problems to enhance productivity and financial conditions, (3) providing
advice to borrowers on the productivity and profitability of enterprises,
(4) adjusting loans where the work provided a knowledge of agricultural
concepts, principles, laws, and regulations, (5) surveying markets to
ascertain the production opportunities for and credit worthiness of
products, (6) making
assessments of the progress of crops, health and conditions of livestock,
and other conditions affecting agricultural operations, (7) making
judgments based on financial management concepts, principles, laws, and
regulations, (8) operating a farm or business, and (9) experience that
demonstrates a working knowledge of agricultural marketing and production.
5 The fact-finder incorrectly found that the GS-475-7 position in
Florence County became available on July 1, 1987; the record reveals
that the position actually became available on July 5, 1987.
6 Both claimant and the agency submitted settlement-related documents.