01a01666
01-16-2001
Agency.
Elaine A. Mitchell v. Department of Agriculture
01A01666
January 16, 2001
.
Elaine A. Mitchell
Claimant,
v.
Daniel R. Glickman
Secretary
Department of Agriculture
Agency.
Appeal No. 01A01666
Agency No. 870807
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 the claimant's case.<2>
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 the claimant is not entitled
to relief.
The history of the underlying class action is well-documented, and for
the most part will not be recounted here.<3> 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.<4> 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, which
was modified by the Commission. It also added the Office of Personnel
Management (OPM) 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 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.
In March 1995, the claimant submitted a claim under the settlement
agreement. It showed that she started working for the agency as a
Clerk Typist, GS-322-2, in Mitchell, South Dakota in 1978. By 1984, she
worked her way up to Program Review Assistant, GS-1101-7. She received
a career-ladder promotion to GS-8 in November 1986. In August 1987, the
claimant took a reassignment to the lower graded position of Assistant
County Supervisor (Loan Assistant), GS-1165-5, located in Brookings, South
Dakota. She received a career ladder promotion to GS-7 in August 1988.
In August 1989 the claimant was promoted to the position of Assistant
County Supervisor, Agricultural Management Specialist, GS-475-9.
The claimant explained that in May 1989, she completed 30 semester
hours of college agricultural credits, meeting the GS-475 standard of
the time.<5>
The claimant claimed that if she previously met the qualification
standards for GS-475, she would have applied for and been awarded a GS-475
position by October 1986. The claimant did not refer to any specific
GS-475 jobs for which she would have applied had she previously met the
qualification standard.
The agency issued a decision on the claimant's claim in October 1995.
Based on information the claimant provided about herself with her claim,
the agency decision determined that she met the qualifications for the
GS-475 series under the new standard as of October 12, 1986. But it
denied the claimant's claim because she did not specify any specific
GS-475 vacancies for which she would have applied had she met GS-475
qualification standards.
The claimant filed an appeal with the Commission. She explained that
she did not specify vacancies because the vacancy announcements had
been destroyed by the agency. Nevertheless, after the agency's denial,
an agency official responded to an inquiry by the claimant with list of
South Dakota GS-475 vacancy announcements and a few dates people entered
the positions. The claimant submitted this list on appeal, and marked 26
of them as ones for which she would have applied. These were all county
supervisor vacancies at unidentified grade levels in various locations.
Some were filled in 1987, and others were apparently filled in 1986.
On July 3, 1997, the Commission issued the decision in Mitchell et al.
It determined that many of the claims that the agency previously rejected,
including that of the claimant, required reconsideration using a fact
finding procedure it set forth. 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 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
the adverse action at issue. See also Mitchell, et al. v. Department
of Agriculture, EEOC Petition No. 04970021 (December 4, 1997).
The claimant's claim was referred to an EEOC Administrative Judge (AJ)
for fact finding. According to later correspondence by the AJ, by
letter dated November 4, 1998, the AJ invited the claimant to submit
any additional information on her claim, and she did not respond.
By letter to the parties dated July 20, 1999, the AJ wrote that while
the record contained a list submitted by the claimant of vacancies in
South Dakota, it was insufficient because she did not indicate those for
which she would have applied. Hence, the AJ asked the claimant a series
of questions, including the date and location of vacancies for which she
would have applied, the selectees, and information showing she would
have been willing to relocate to out of town vacancies. In response,
the claimant asked for a copy of the vacancy list.
The AJ then issued a recommended finding denying the claimant's claim.
The AJ recounted the above correspondence, and denied the claimant's
request for the list because it was previously provided to her by the
agency in October 1995. The AJ denied the claimant's claim for relief
because she did not provide information on which GS-475 jobs for which
she would have applied. In accordance with the procedures set forth in
Mitchell, et al v. Department of Agriculture, EEOC Appeal No. 01960816
(July 3, 1997), the claimant's claim was automatically docketed as the
instant appeal.
Under the settlement, the claimant would be entitled to relief for
being adversely affected by the 475 standards from October 12, 1986
to June 4, 1989. The coverage ceased on June 4, 1989 because the
claimant received her GS-475 rating under the standard of the time,
and was no longer adversely affected by the education requirement.
We agree with the AJ's denial of relief, albeit for different reasons.
Contrary to the finding of the AJ, the claimant identified listed county
supervisor vacancies for which she would have applied. But the list
did not identify the grade level of these jobs.
GS-475 positions at the GS-7,9,11 and 12 and above levels have no general
experience requirement. But at the GS-7, 9 and 11 levels they have a
specialized experience requirement of one year equivalent to at least,
respectively, a GS-5, 7, and 9; and at the GS-12 and above a specialized
experience requirement of one year equivalent to at least the next
lower grade level.<6> County supervisor jobs are often filled at the
GS-11 level. The record does not show that the claimant performed work
for one year that was equivalent to at least a GS-9 which would have
made her eligible for a GS-475-11 series job during the time the listed
vacancies were open, i.e., apparently October 1986 to August 1987,
nor during October 12, 1986 to May 1989, the time she was covered by
the settlement. Accordingly, the claimant did not show she met the
qualification requirements for any of the specific GS-475 vacancies she
raised.
CONCLUSION
The claimant is not entitled to the relief that she has requested.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
January 16, 2001
__________________
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).
2On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3See, 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).
4As 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.
5In Mitchell et al. v. Department of Agriculture, note 1, EEOC Appeal
No. 01960816 (July 3, 1997), the Commission found that claimant Mitchell
received her GS-475 rating on or about June 4, 1989, and her potential
relief under the terms of the settlement extended only through that date.
The claimant indicated that she started working in a GS-475 position on
June 4, 1989.
6The 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.