Agency.

Equal Employment Opportunity CommissionJun 14, 2001
01A01148 (E.E.O.C. Jun. 14, 2001)

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).