Agency.

Equal Employment Opportunity CommissionFeb 1, 2002
01A03372 (E.E.O.C. Feb. 1, 2002)

01A03372

02-01-2002

Agency.


Roni Atkins; Colleen Carson; Louise McBride v. Department of Agriculture

01A03372; 01A05826; 01A05825

February 1, 2002

.

Louise McBride; Colleen Carson; Roni Atkins

Claimants,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal Nos. 01A05825; 01A05826; 01A03372

Agency No. 870807

Hearing Nos. 380-99-8021X; 380-99-8020X <1>

DECISION

Pursuant to the Commission's July 3, 1997 Order in Mitchell, et

al. v. Department of Agriculture, EEOC Appeal No. 01960816, et

al. (Mitchell I), the Commission has docketed the instant appeals

upon the completion of the fact finding procedure set forth therein.

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 agreement between the class representative and

the agency. For the reasons that follow, we find that the claimants

are entitled to relief. Specifically, they have met their burden of

establishing that they would have qualified for GS-475 positions under

the revised qualification standards, and there were positions for which

they would have applied. Further, the agency failed to prove, by clear

and convincing evidence, that claimants were not entitled to relief.

PROCEDURAL HISTORY

The history of the underlying class action is well-documented in prior

Commission decisions.<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.

An Administrative Judge (AJ) recommended certification of a class of all

females employed by the FmHA on or after October 12, 1986. The agency's

rejection of the AJ's recommendation was reversed by the Commission,

which found that the class complaint, as described by the AJ, satisfied

the requirements for certification. Byrd v. Department of Agriculture,

EEOC Appeal No. 01890012 (December 11, 1989). The Commission subsequently

granted the agency's request for reconsideration, but upheld the class

certification, further defined the class by excluding those female FmHA

employees who qualified for GS-475 positions under the old standard prior

to October 12, 1986. Byrd v. Department of Agriculture, EEOC Request

No. 05900291 (May 30, 1990). In addition, the Office of Personnel

Management (OPM) was added as a party to the complaint.

On October 10, 1993, the parties entered into a settlement agreement.

The agreement 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.<4> The agreement 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 class members 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 that 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

The claimants herein, all residents of Idaho, filed individual claims

for relief pursuant to the Byrd settlement agreement.<5> The agency

initially denied the claims, after which the claimants filed appeals with

the Commission. On July 3, 1997, the Commission issued the decision in

Mitchell I. In that decision, the Commission determined that many of

the claims that the agency had previously rejected, including those of

the claimants, required reconsideration using a fact finding procedure

that was established. Specifically, the claims were referred to neutral

fact finders, who were tasked with determining individual class members'

entitlement to relief, and, thereafter, issuing recommended findings

of fact. The Commission also addressed the burdens of proof applicable

in the remedy phase of a class action. In that regard, the Commission

determined that, where a 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 the claimants are not entitled to relief. See also Mitchell, et

al. v. Department of Agriculture, EEOC Petition No. 04970021 (December 4,

1997) (Mitchell II).

Atkins

Atkins filed a claim for relief on March 27, 1995. Atkins began work

for the agency on July 12, 1973. Claimant worked as a Stay-In-School

(GS-1) from July 12, 1973 until May 10, 1975, a County Office Assistant

from May 11, 1975 until March 11, 1978, an Assistant County Supervisor:

Loan Assistant (GS-1165-7/9) from March 12, 1978 until August 11, 1990,

and a County Supervisor: Loan Specialist (GS-1165-11) from August 12,

1990 until the filing of the instant claim. On April 17, 1995, the

agency issued a decision rejecting the claim, noting that claimant

failed to identify any GS-475 positions, for which she was qualified,

during the claim period.

Carson

Carson filed a claim for individual relief on March 29, 1995. Carson

has worked for the agency since January 12, 1970. Carson worked as a

County Office Clerk (GS 2/5) from January 12, 1970 until June 18, 1978,

an Assistant County Supervisor: Loan Assistant (GS-1165-5/7/9) from

June 18, 1978 until November 4, 1980, an Assistant County Supervisor:

Loan Specialist (GS-1165-11) from November 4, 1980 until January 1993,

and County Supervisor (GS-1165-11/12) from January 10, 1993, until the

filing of the instant complaint. On April 9, 1996, the agency issued

a decision rejecting the claim. The agency rejected the claim because

claimant failed to identify any GS-475 positions, for which she was

qualified, during the claim period.

McBride

McBride filed a claim for individual relief on March 27, 1995. McBride

worked for the agency from January 14, 1974 until March 24, 1989, and

again from February 22, 1994 until the filing of the instant claim.

McBride worked as a County Office Assistant (GS-5) from January 14, 1974

until September 23, 1978, an Assistant County Supervisor: Loan Assistant

(GS-1165-7) from September 24, 1978 until October 7, 1979, an Assistant

County Supervisor: Loan Specialist (GS-1165-9) from October 7, 1979 until

January 16, 1988, a County Supervisor: Agriculture Management Specialist

(GS-1165-10) from January 17, 1988 to March 24, 1989. McBride then left

the agency and returned to work for the agency as a Rural Housing Loan

Technician from February 22, 1994 until the filing of the instant claim.

On May 31, 1995, the agency issued a decision rejecting the claim.

The agency rejected the claim because claimant failed to identify any

GS-475 positions, for which she was qualified, during the claim period.

The agency rejected these claims of entitlement to individual relief.

The agency concedes that claimants are members of the class and that they

met the revised qualification standard, on the first day of the claim

period, October 12, 1986. The agency denied the claims on the grounds

that claimants did not identify specific positions to which they are

entitled. From the agency's final decision, these claims were submitted

to an EEOC Administrative Judge (fact finder). The fact finder disagreed

with the agency's conclusion and recommended retroactive placement of

each claimant in an appropriate GS-475 position. Following the fact

finder's recommended decision, the claims were automatically docketed

as the instant appeal.

ANALYSIS AND FINDINGS

After an objective review of the record, including claimants' claims for

relief and statements on appeal, we conclude that claimants are entitled

to relief. The fact finder recommended that all three claimants be

retroactively awarded County Supervisor positions. The fact finder

did not identify specific positions to which claimants were entitled.

As previously mentioned, to establish entitlement to relief, claimants

must show that they are members of the class and were affected by the

positive education requirement. The burden of proof then shifts to the

agency to show by clear and convincing evidence, that the claimants are

not entitled to relief.

As proof that they were adversely affected by the positive education

requirement, the claimants have submitted a list of GS-475 personnel

actions. The list identifies appointments to GS-475 County Supervisor

positions during the claim period. The list identifies the selectees'

names and dates of appointment. The agency argues that this list of

personnel actions is insufficient to establish that the claimants were

adversely affected since these personnel actions may have resulted from

noncompetitive actions.

We affirm the fact finder's conclusion that the list of newly appointed

GS-475 County Supervisors is sufficiently specific enough to meet

claimants' burden of establishing that they were adversely affected.

We find that the list clearly establishes that the agency placed

candidates in GS-475 County Supervisor positions during the claim period.

The claimants were ineligible to occupy these positions because of the

positive education requirement. We therefore conclude that the claimants

have met their burden of proving that they were adversely affected by

the positive education requirement.

We remind the agency that claimants requested discovery documents showing

detailed information on vacancies and placements for the GS-475 positions

in Idaho during the claim period. The agency did not object to the

claimants' request for documents, nor did it produce the documents.

The burden now shifts to the agency to show, by clear and convincing

evidence, that claimants are not entitled to relief.

Position No. 1

The first County Supervisor position that was filled during the claim

period became available on November 17, 1996, in Rupert, Idaho.

Carson states that she would have applied for the Rupert position

but for the positive education requirement.<6> On appeal, the agency

argues that the selectee had superior qualifications because selectee

was a transferee who was already performing County Supervisor duties.

Prior to his selection, selectee worked as a County Supervisor for 2

years and, prior to that, selectee held an Assistant County Supervisor

position for 5 years. The selectee also earned a Bachelor of Science

Degree with 51 quarter hours of agriculture-related course work.

We concur with the fact finder's determination that the agency failed to

establish, by clear and convincing evidence, that the selectee was better

qualified for the Rupert, Idaho position, than Carson. Carson lacks the

selectee's education and experience as a County Supervisor. However,

we cannot understate the record evidence of Carson's distinguished and

lengthy experience with the agency. Particularly, at the time of the

Rupert, Idaho selection, Carson had worked for the agency for over 26

years in various capacities. Carson worked as an Assistant County

Supervisor for 8 years and 5 months, the selectee had only 5 years

experience as an Assistant County Supervisor before being promoted

to County Supervisor.<7> Carson submitted affidavits, in support of

her claim, from the Chief of Farmers Programs for the State of Idaho,

two Idaho State Directors and the current County Supervisor. In light

of claimant's history with the agency and her record of performance, we

are not persuaded by clear and convincing evidence that the selectee was

better qualified than Carson. Accordingly, Carson should be retroactively

awarded the County Supervisor (GS-475-12) position in Rupert, Idaho,

or a substantially equivalent position, with appropriate back pay and

benefits on November 17, 1986.

Position 2

The second County Supervisor position became available on December 6,

1986, in Mountain Home, Idaho. Atkins and Carson would have qualified

under the revised qualification standard for the County Supervisor

position in Mountain Home. The agency did not provide information on

the qualifications of the selectee. Accordingly, the agency has failed

to establish, by clear and convincing evidence, that the selectee is

more qualified than claimants.

We turn now to the difficult task of deciding which claimant, Atkins

or McBride, is entitled to the Mountain Home, Idaho, County Supervisor

position. On December 6, 1986, both claimants had worked for the

agency as Loan Specialist, GS-1165 Assistant County Supervisors for over

8 years. Since Atkins had been a GS-1165 Assistant County supervisor

for 6 months longer than McBride and since Atkins began working for the

agency 7 months before McBride, we conclude that Atkins is entitled to

the Mountain Home, Idaho, County Supervisor (GS-475-11/12)position or a

substantially equivalent position, with appropriate back pay and benefits

on December 6, 1986.

Position 3

The third County Supervisor position became available on December 21,

1986, in Shoshone, Idaho. We find that claimant, McBride, would have

qualified and applied for the position under the revised qualification

standard. However, we conclude that the agency has established, by

clear and convincing evidence, that the selectee is more qualified for

the Shoshone position.

At the time of the selection, the selectee for the Shoshone position

had 4 years of experience as a County Supervisor, 7 years of experience

as an Assistant County Supervisor and a Bachelor of Science Degree in

Agriculture Economics. By comparison, at the time of the selection,

McBride had approximately 8 years of experience as an Assistant County

Supervisor. The agency has established, by clear and convincing evidence

that the selectee was more qualified than claimant.

Position 4

The fourth County Supervisor position became available on August 14,

1988, in Arco, Idaho. According to the record, as established before

the fact finder, the Arco position remained vacant. The agency has

failed to establish that the Arco position would have remained unfilled.

The agency failed to proffer any information upon which it could rely in

meeting its burden. We conclude that McBride is entitled to the Arco,

Idaho, County Supervisor (GS-475-11/12) position or a substantially

equivalent position, with appropriate back pay and benefits from

August 14, 1988 through March 24, 1989. As we have previously decided,

claimant is not entitled to relief for the period from March 24, 1989

through February 21, 1994, while she was not employed by the agency.

See Mitchell I Appendix B Note 17.

McBride was entitled to reestablish her entitlement to relief beginning

February 21, 1994, when she returned to the agency. However, claimant

failed to identify a position that she would have qualified for, but for,

the previous positive education requirement following her return to the

agency on February 21, 1994.

CONCLUSION

The claimants are entitled to the relief as set forth above. Claimants

are entitled to appropriate back pay and benefits.

ORDER

The agency is ordered to take the following remedial action within thirty

(30) calendar days for the date this decision becomes final:

1. The agency shall retroactively place claimant Carson into the County

Supervisor position available at the agency's facility in Rupert, Idaho

on November 17, 1986, or substantially equivalent position, including

providing claimant back pay with appropriate step increases and career

ladder promotions.

2. The agency shall determine the appropriate amount of back pay and

other benefits due claimant Carson pursuant to 29 C.F.R. � 1614.501.

The claimant shall cooperate in the agency's efforts to compute the amount

of back pay and benefits due, and shall provide all relevant information

requested by the agency. If there is a dispute regarding the exact

amount of back pay and/or benefits, the agency shall issue a check to

the claimant for the undisputed amount. The claimant may petition for

enforcement or clarification of the amount in dispute. The petition for

clarification or enforcement must be filed with the Compliance Officer,

at the address referenced in the statement entitled "Implementation of

the Commission's Decision."

3. The agency shall retroactively place claimant Atkins into the County

Supervisor position available at the agency's facility in Mountain

Home, Idaho on December 6, 1986, or substantially equivalent position,

including providing claimant back pay with appropriate step increases

and career ladder promotions.

4. The agency shall determine the appropriate amount of back pay and

other benefits due claimant Atkins pursuant to 29 C.F.R. � 1614.501.

The claimant shall cooperate in the agency's efforts to compute the amount

of back pay and benefits due, and shall provide all relevant information

requested by the agency. If there is a dispute regarding the exact

amount of back pay and/or benefits, the agency shall issue a check to

the claimant for the undisputed amount. The claimant may petition for

enforcement or clarification of the amount in dispute. The petition for

clarification or enforcement must be filed with the Compliance Officer,

at the address referenced in the statement entitled "Implementation of

the Commission's Decision."

5. The agency shall issue claimant McBride a check representing back

pay and benefits for work as County Supervisor in Arco, Idaho, from

August 14, 1988 through March 24, 1989.

6. If there is a dispute about the amount of back pay or other benefits

due to claimants Carson, Atkins of McBride, the agency shall issue a

check for the undisputed amount. 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."

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

February 1, 2002

Date

1 Hearing number is unavailable for claimant, Roni Atkins.

2 See, 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).

3 As 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 With respect to the education requirement, the qualification standard

provides: Major study - farm, livestock, or ranch management; agricultural

economics; agricultural management;

agricultural education; agricultural engineering; agricultural resources

management; general agriculture, agronomy, or crop science; animal, dairy,

or poultry husbandry; non-ornamental horticulture; business; finance;

financial management; business management; economics; accounting; or

other field related to the position to be filled.

With respect to the general experience requirement, the qualification

standard provides: Experience that provides an understanding of the

fundamental principles and techniques of agricultural management, and

the principles and practices of credit and finance.

5 The Commission has determined that, based upon the claimants' common

state of residence and the fact that claimants claimed entitlement to

the same positions, it would best serve the interests of the parties to

consolidate these appeals.

6 The fact finder concluded that all of the claimants were entitled

to the first available GS-475 position. However, in Mitchell II, the

Commission determined that only one claimant may be awarded each position.

Among the claimants, we conclude that Carson is entitled to the first

available position, based upon her more developed claim for relief and

her uninterrupted, lengthy employment at the agency.

7 An acting County Supervisor position in Mountain Home, Idaho became

available from October 12, 1986 to December 6, 1986. Claimants have

not established that they could have been selected to this position,

which the agency temporarily filled, while it selected a permanent

County Supervisor.