Agency.

Equal Employment Opportunity CommissionJun 1, 2001
01A02612 (E.E.O.C. Jun. 1, 2001)

01A02612

06-01-2001

Agency.


Patricia A. Proebstel v. Department of Agriculture

01A02612

June 1, 2001

.

Patricia A. Proebstel,

Claimant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A02612

Agency No. 870807

Hearing No. 320-99-8043X

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.

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 entitled to relief.

The history of the underlying class action is well-documented.<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 30 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. The agency issued a final decision on the claim in September

1996. It ruled that under the settlement, the claimant was entitled

to retroactive placement into the position of County Supervisor,

GS-475-9/11, in Dillon Montana, which had been filled on October 4,

1992, or a substantially equivalent position acceptable to her. It ruled

that the claimant would start the first full pay period after October 4,

1992 as a GS-11, with back pay and benefits.

The claimant filed an appeal with the Commission. She contended that

there were GS-475 positions for which she qualified beginning in October

1986, and that the agency did not comply with its decision. On July 3,

1997, the Commission issued the decision in Mitchell et al. It determined

that many of the claims that the agency rejected, including the partial

rejection of the claimant's claim, required reconsideration using a fact

finding procedure it set forth. Specifically, it referred the claims to

neutral fact finders, who were tasked with determining individual class

members' entitlement to relief and issuing recommended findings of fact.

The Commission also referred the matter of the agency's compliance

with its above final decision on the claimant's claim to the EEOC,

Office of Federal Operations, Complaint Adjudication Division (CAD).

The agency then informed an EEOC Compliance Officer that because the

claimant had retired, she was not entitled to placement into the position.

She retired in May 1994. CAD concluded that the agency did not intend

on instating the claimant. The claimant filed a petition for enforcement

stating that she wished to come out of retirement and accept the position.

Reasoning that the final agency decision awarded the claimant retroactive

placement into the position, the Commission granted the claimant's

petition for enforcement. Proebstel v. Department of Agriculture, EEOC

Petition No. 04980019 (July 30, 1998). The Commission ordered the agency

to offer the claimant the position of County Supervisor, GS-475-9/11,

in Dillion, Montana, or a substantially equivalent position, with back

pay, interest on back pay, and benefits pursuant to 29 C.F.R. �1614.501.

In December 1998, the claimant wrote that the agency was complying with

the order in EEOC Petition No. 04980019. The agency later wrote that

she was working as a GS-11, and the claimant wrote that the agency paid

interest in accordance with the enforcement order.

Meanwhile, the remaining portion of the claimant's underlying claim

was referred to an EEOC AJ for fact finding. Following fact-finding,

the AJ issued a recommended finding of fact that under the settlement

the claimant was entitled to placement into the position of County

Supervisor, GS-475-11 in Hardin, Montana, or a substantially equivalent

position acceptable to her, with back pay and benefits, retroactive to

the first full pay period beginning on or after October 12, 1986.

The AJ also found that the evidence showed that had the claimant received

the GS-475 position in October 1986, she would have been subsequently

promoted to the position of District Specialist, GS-301-12, in Billings or

Missoula, Montana, on January 26, 1992. The AJ found that the settlement

did not limit relief to GS-475 positions, and make whole relief for

discrimination included the above remedy. Accordingly, the AJ recommended

that the agency promote and place the claimant into one of the above two

GS-301-12 jobs, or a substantially equivalent position acceptable to her,

retroactive to January 26, 1992, with back pay and benefits.

The AJ also ordered the agency to pay interest on the new back pay

awards. The AJ reasoned that EEOC Petition No. 04980019 ordered the

agency to pay interest on the claimant's back pay.

In a timely appellate brief received by the Commission on April 25, 2000,

the agency concedes that the claimant is entitled to placement into

the position of County Supervisor, GS-475-11, retroactive to October

12, 1986. Arguing that the GS-301 series did not have a positive

education requirement and was not covered by the settlement, it opposes

the placement of the claimant into a GS-301-12 position. The agency also

argues that the settlement excluded the provision of interest on back pay.

On appeal, the claimant argues that the AJ's recommended decision should

be affirmed.

Note 38 of Mitchell, et al. v. Department of Agriculture, EEOC Appeal

No. 01960816 (July 3, 1997), ruled that the scope of relief under the

settlement was limited to denials relative to GS-475 positions caused

solely by application of the old standard. The claimant is only entitled

to relief under the settlement, not make whole relief pursuant to a

discrimination finding. The settlement explicitly stated that it did not

constitute an admission of discrimination. The AJ's decision to place the

claimant into the position of District Specialist, GS-301-12 is reversed.

The claimant argues that she is entitled to interest on the new back pay

awards. The underlying settlement agreement, however, limited the relief

to that which was available under Title VII prior to the Civil Rights Act

of 1991. Prior to the 1991 Civil Rights Act, interest on back pay was

limited to those cases which resulted in the withdrawal or reduction of

an employee's compensation. See Sullivan v. Department of Justice, EEOC

Request No. 05901185 (March 2, 1992), citing Brown v. Secretary of the

Army, 918 F.2d 214 (D.C. Cir. 1990). The failure to award a competitive

promotion did not support an interest award. Ramsey v. Department of

the Navy, EEOC Request No. 05940658 (July 27, 1995).

Further, the Commission finds that additional interest should not be

awarded pursuant to the decisions in Byrd v. Department of Agriculture,

EEOC Appeal No. 01961893 (July 3, 1997) and EEOC Petition No. 04980019.

In Byrd, the Commission sanctioned the agency for its failure to

comply with the time frame specified in 29 C.F.R. � 1614.204(l)(3),

as incorporated by the settlement agreement and the ensuing Notice, by

awarding interest on any back pay awarded in any favorable final agency

decision that was issued more than 90 days after a claimant filed a claim.

Since the instant claimant filed her claim in March 1995, and the agency

did not issue its final decision until September 1996, EEOC Petition

No. 04980019 properly awarded interest on the back pay awarded in the

final agency decision. We decline to further sanction the agency by

requiring it to pay interest on the new back pay award ordered below.

Unlike the procedural delay in issuing its final decision, much of the

procedural delay in the additional award was not within the sole control

of the agency, i.e., the fact finding and appellate processes.

As the claimant secured additional relief, which is ordered here, she

is entitled to attorney fees.

CONCLUSION

The claimant is entitled to placement into the position of County

Supervisor, GS-475-11, in Hardin, Montana, or a substantially equivalent

position, retroactive to October 12, 1986, with back pay and benefits.

The claimant is not entitled to additional interest.

ORDER

(1) The agency shall offer the claimant the position of County

Supervisor, GS-475-11, in Hardin, Montana, or a substantially equivalent

position, retroactive to October 12, 1986, within 30 calendar days of

the date this decision becomes final.

(2) The agency shall issue a check to the claimant for the appropriate

amount of back pay and benefits, including applicable within-grade

increases and career ladder promotions under 29 C.F.R. �1614.501, no

later than 90 calendar days of the date this decision becomes final.

This does not include interest. This is subject to off-set (not including

interest) the agency already gave the claimant under EEOC Petition

No. 04980019. The claimant shall cooperate in the agency's efforts

to compute the amount of back pay and benefits due, and provide all

necessary information the agency requests to help it comply. The back

pay and other benefit liability runs from October 12, 1986 to such time

as the claimant is either placed into the position in paragraph (1)

or rejects the agency's offer.

(3) 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 (K0900)

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)(Supp. V 1993).

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 (M0900)

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

June 1, 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).

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.