01A01148
06-14-2001
Agency.
Norma T. Collins v. Department of Agriculture
01A01148
June 14, 2001
.
Norma T. Collins,
Claimant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A01148
Agency No. 870807
Hearing No. 170-99-8042X
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.
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. 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.
On April 3, 1995, claimant submitted a claim for individual relief under
the settlement. Claimant argued that she qualified for a GS-475 position
through a combination of her education and experience. The record reveals
that claimant has held various positions at the agency. Claimant worked
as a GS-312-3/4, County Office Clerk from March 1979 until May 1982.
Claimant then worked as a GS-1101-05, County Office Assistant form
May 1982 until March 1988. Since March 1988 claimant has worked as a
GS-07, GS-09, and GS-11 State Loan Technician. Claimant possesses an
Associates Degree in General Studies from the University of Virginia and
an Associates degree in Executive Secretarial from Delaware Technical and
Community College. The record establishes that claimant successfully
completed courses in accounting, economics and business law. Since
working for the agency, claimant has taken approximately thirty courses
relevant to the GS-475 series; including, Debt and Loan Restructuring
and Contracting.
On October 28, 1995, the agency issued a decision on claimant's claim.
It determined that the claimant met the revised GS-475 experience
qualification standard by October 12, 1986. However, in denying her
claim, the agency issued a decision which held that claimant failed to
identify any GS-475 positions that she was denied under the positive
education requirement. From the agency's decision, claimant filed an
appeal with the Commission.
On July 3, 1997, the Commission issued Mitchell, et al. v. Department
of Agriculture, EEOC Appeal No. 01960816. It determined that many of
the claims that the agency previously rejected 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). In Hall v. Department of Agriculture, EEOC Appeal
No. 01964627 (November 20, 1997), the Commission found that Mitchell,
et al., EEOC Appeal No. 01960816 was applicable to the claimant's case,
and referred it to the fact finding. The claimant's claim was referred
to an EEOC AJ for fact finding. The AJ invited the parties to submit
additional information and thereafter issued a recommended decision on
the claim.
The AJ found that claimant would have applied for positions in the GS-475
series at the agency's Dover, Delaware or Camden, Delaware offices.
After consulting relevant vacancy announcements, the AJ concluded that
claimant would have applied for an entry-level GS-475-05 position and been
hired into that position on March 5, 1987. In so finding, the AJ noted
that the position was unfilled and that the agency failed to proffer clear
and convincing evidence that claimant would not have been selected for
the position. The AJ further found that claimant would have received
a career-ladder promotion to GS-475-07 on March 5, 1988 and another
career-ladder promotion to GS-475-09 on March 5, 1989. In contrast to the
entry-level GS-475 position and the subsequent career-ladder promotions,
the AJ found that complainant was entitled to a competitive promotion.
The AJ found that complainant would have been offered a two-year temporary
promotion to a GS-475/1165-11/12 Interdisciplinary Loan Resolution Task
Force (Announcement No. DE 94-23) position. The position provided for
promotion to the GS-12 position, upon one year satisfactory performance
at the GS-11 level. After the two-year temporary promotion, the AJ
found that claimant would have returned to her GS-475-09 position on
September 19, 1996. From the AJ's decision and in accordance with the
procedures set forth in Mitchell, et al., EEOC Appeal No. 01960816 the
claimant's claim was automatically docketed as the instant appeal.
On appeal, the agency makes no comment. Under the revised qualification
experience standards, a claimant qualifies for a GS-475-05 position
if she has three years of general experience,<4> one of which must be
equivalent to at least the GS-04 level. The parties agree that claimant
was qualified under the revised qualification standard for an entry-level
GS-475-05 position on October 12, 1986. By October 12, 1986, claimant
had worked for the agency as a GS-312-03/04 County Office Clerk for four
years and worked as a GS-1105-05 County Office Assistant for four years.
An entry level GS-475 position became available on March 5, 1987.
We find that claimant was qualified and would have applied for the
position. As stated, the agency has the burden of showing, by clear and
convincing evidence, that the claimant would not have received an entry
level GS-475 position. The agency has failed to challenge claimant's
claim to this position. Since claimant has established her entitlement
an entry-level GS-475 position, we agree with the AJ that she is also
entitled to career-ladder promotions. Accordingly, we find that claimant
would have received a career-ladder promotion to GS-475-07 on March 5,
1988 and another career-ladder promotion to GS-475-09 on March 5, 1989.
In this case, however, the claimant asserted that she is also
entitled to a competitive promotion within the GS-475 series beyond an
entry-level position. The Commission has been reluctant to assume that an
individual, absent a discriminatory act, would have subsequently received
a competitive promotion. See Ritchie v. USPS, EEOC Request No. 05980501
(February 11, 1999), citing Ramirez v. USPS, EEOC Petition No. 04950024
(February 8, 1996). Nevertheless, given the facts of this case and
the underlying settlement agreement provisions, we find that claimant
can overcome the speculative nature of the nonselection by showing,
by a preponderance of the evidence, that she would have received the
position in question.
We agree with the AJ that claimant has established, by a preponderance of
the evidence, that she was entitled to promotion to the two-year temporary
GS-475/1165-11/12 Interdisciplinary Loan Resolution Task Force position.
The position provided for promotion to the GS-12 position, upon one year
satisfactory performance at the GS-11 level. After the two-year temporary
promotion, the AJ found that claimant would have returned to her GS-475-09
position on September 19, 1996. The preponderant evidence establishes
that claimant would have qualified for and accepted the temporary Loan
Resolution Task Force position, in so finding we note that the vacancy
went unfilled and the position operated out of the agency's Camden,
Delaware office where claimant worked for over seven years.
CONCLUSION
The claimant is entitled to the back pay and other benefits she would
have received had she been placed in the position of Agricultural
Management Specialist, GS-475-05 in Dover, Delaware on March 5, 1987
and all career-ladder promotions including promotions to GS-475-09.
Claimant also established entitlement to a temporary promotion to GS-11
on September 19, 1994 with an increase to GS-12 from September 19, 1995
until September 19, 1996, at which time she would have returned to the
GS-09 position as outlined in the order below.<5>
ORDER
(1) The agency shall issue a check to the claimant for the appropriate
amount of back pay and other benefits such as appropriate within-grade
increases and career-ladder promotions (but not interest) under 29
C.F.R. �1614.501 which the claimant would have received had she been
placed in the position of Agricultural Management Specialist, GS-475-05
in Dover, Delaware on March 5, 1987, a temporary promotion to GS-11 on
September 19, 1994 with an increase to GS-12 from September 19, 1995 until
September 19, 1996 and returning to GS-09, thereafter. The agency shall
complete these actions no later than 90 calendar days of the date this
decision becomes final. 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.
(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 (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).
COMPLAINANT'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 14, 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.
4General experience for GS-05 positions is that which provides an
understanding of the fundamental principles and techniques of agricultural
management and the principles and practices of credit and finance or other
work appropriate to the position filled. The qualification standard's
listed examples are (1) responding to questions about agricultural loans
or specific agricultural practices related to soils, animal science,
pesticides and equipment, (2) determining whether applications for loans
meet established eligibility criteria, (3) establishing and maintaining
effective relationships with representatives of financial organizations,
farm associations, and farm borrowers to obtain information, (4)
experience that demonstrates an understanding of farm or ranch operations,
and (5) serving as a loan or bank assistant in a lending institution.
5The underlying settlement agreement 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).