01A04725errata
09-27-2002
Agency.
Clifford Herron et. al v. Department of Agriculture
01A04725
September 27, 2002
.
Clifford Herron et. al.,
Class Agent,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal Nos. 01A04725; 01A02597; 01A05202; 01A04644; 01A05031;01A05034;
01A04941;01A20731; 01A20732;01A20733; 01A20734;01A20735;<1>
Agency Nos. 97-1290, 99-0055, 99-0326, 99-0509, 99-0630, 99-0148, 98-0416,
95-0817,95-0706, 96-0607, 97-0707, 97-0089, 96-0712;000514; 000517; 000518
Hearing Nos. 100-98-7120X, 100-98-7658X; 100-99-7837X; 100-99-7838X;
100-99-7839X;100-99-7840X; 100-99-7841X; 100-99-7842X; 100-99-7843X;
100-99-7844X; 100-99-7845X; 100-99-7851X; 100-99-7852X; 100-99-7853X;
100-99-7282X
DECISION
Class agents timely initiated an appeal<2> from the agency's final order
concerning their equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission VACATES AND REMANDS the agency's final order.
This is a class complaint filed on February 27, 1997 against the
Department of Agriculture, Farm Services Agency (FSA) offices in
Washington, D.C. and throughout the nation. The complaint alleges that
the agency engaged in a pattern and practice of discrimination by failing
to promote its African American employees to the GS-13, 14 and 15 levels
from 1995 and thereafter, and that it employed certain facially neutral
practices which had a disparate impact on African American employees at
these levels.
The agency accepted the recommendation of the Administrative Judge
(AJ) to certify the class which was defined as all African American FSA
employees denied promotion or opportunity for promotions to positions
to the GS-13, 14, and 15 grade levels since February 27, 1995. After a
hearing, the AJ concluded that the class failed to prove that the agency's
promotion practices have a disparate impact on African Americans because
the statistical evidence did not demonstrate a statistically significant
under-representation of African Americans in FSA. She also found that
the class did not establish a prima facie case of pattern and practice
discrimination based on this same statistical evidence.
The AJ then considered the individual claims of discrimination and
determined that in the case of class agent, Clifford Herron, the agency
discriminated against him in not selecting him for the position of Program
Manager GS-15, Consolidated Farm Service Agency<3>, in the division of
Emergency and Non-insured Assistance Program (ENAP). The AJ awarded back
pay with interest, compensatory damages and attorney's fees associated
with Herron's successful claim.
She also found the agency had discriminated against class member Harold
Connor in not selecting him for the position of Director, Audits and
Investigations Group, FSA, GS-14/15. The AJ awarded Connor back pay
with interest, compensatory damages and attorney's fees.
The AJ concluded that, in the remainder of the individual complaints
filed, the agency gave legitimate non-discriminatory reasons for
not selecting them which complainants failed to demonstrate were a
pretext for race discrimination. As a result, as to these individual
complainants, the AJ found no proof of discrimination by a preponderance
of the evidence.
The agency's final order dated May 30, 2000 fully implemented the AJ's
decision.
CLASS CONTENTIONS ON APPEAL
The class contends that the AJ erred in finding no class-wide
discrimination because she based her decision on what she knew to
be unreliable and inadequate data provided by the agency. The class
claims that the AJ erred in instructing the expert not to consider 216
non-competitive promotions for District Director in his statistical
analysis. This was error, the class argued, because it accounted for
46.3% of the relevant total promotions during the time period in issue
and based on the analysis done by the class, indicated a 4.04 standard
deviation, a statistically significant shortfall of African American
promotions at the GS-13 level.
The class argued that despite the AJ's finding that the most appropriate
statistical analysis to be used in a promotion case required the use of
applicant flow data, the AJ's expert<4> did not perform such an analysis
and such data was not used. The class claimed it was error for the AJ not
to require the agency to produce more reliable data once the EEOC expert
apprised her of the deficiencies in the data produced. According to
the class, because the agency did not keep and produce adequate records
concerning selections it made pending an EEO complaint and in general as
required by 29 C.F.R. �� 1602.14 and 1607.4, the Commission should draw
an adverse inference that the records contained information favorable
to the class.
The class claimed that its expert produced the most reliable statistical
analysis because he included all promotions including promotions of
216 District Directors in 1996 and because his analysis factored in
past discriminatory influences on the available applicant pool. In the
alternative, the class urged the Commission to disregard the statistical
analysis altogether and to base a finding of class-wide discrimination
on the testimony and documentary evidence.
Assuming that the Commission found no class-wide discrimination, the
class argues that the AJ erred in not deciding many of the claims of
non-selection brought by the individual complainants and in not ultimately
finding discrimination as to the claims of individual complainants.
The class also argues that the AJ erred in her calculation of the relief
and the amount of the attorney's fees awarded to those class agents
found to have been victims of discrimination.<5>
AGENCY REPLY
The agency argued that the AJ was correct in finding no prima facie case
of disparate treatment because out of 18 claims of discrimination,
the class was only able to prove discrimination in 2 instances.
The agency contended that the AJ's conclusion that there was no proof of
a disparate impact was supported by substantial evidence in the record.
According to the agency, even assuming that the additional 216 promotions
the class alleged should have been included in the statistical analysis
were considered, there was still no showing of a disparity in promotions
of African Americans if such were compared to the percentage of African
Americans in the available work force.
The agency argued that the Class' claim that it did not keep adequate
records was not true and there was no evidence to support the contention.
The agency stated that the Class never requested additional information
regarding applicant flow data during the 8 months of discovery and that
the Class expert testified that he realized there was information he
did not have but he failed to request it. Even so, the agency argued
that courts have recognized that alternative statistics may be used,
such as that used by the AJ's expert, in instances where labor market
statistics will be difficult to obtain. There was no showing, according
to the agency, that the alternative statistics were not appropriate.
Addressing the AJ's findings on the individual claims, the agency contends
that the Class did not contest the AJ's rulings on the individual claims
of non-selection aside from attacking her credibility findings and
that her findings of no discrimination should be affirmed. The agency
contends that those individual claims not specifically addressed by the
AJ either did not fall within the parameters of the Class claims or were
not addressed because the complainants failed to file formal complaints.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings regarding the Class claims are not supported by substantial
evidence in that they are based on unreliable and inadequate or
inconclusive data and because the most reliable statistical analysis
typically used in a non-promotion/hiring case was not performed.
The Commission further finds that there is no indication that the AJ's
decision considered the anecdotal testimony of Class agents and other
witnesses regarding specifically alleged discriminatory incidents
and hiring practices in reaching her conclusion that there was no
discrimination perpetuated against the class. See International
Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977).
First, we address the unreliability of the data presented. According to
the AJ's decision, much of the information generally referred to as
applicant flow data, usually analyzed in promotion cases, was missing
or not available. She noted that the agency did not provide applicant
flow or machine readable data on the vacancy announcements or on the
successful candidates' prior position. Because the applicant flow data
was not made available and because she expressed no confidence in the
reliability of the parties' expert witness reports, the AJ retained her
own expert witness.
The AJ's expert witness (E1) report indicated that he was instructed to
analyze the FSA workforce and promotion data already available to the
other experts. The agency was not directed to produce applicant flow
data or any other additional data. Regarding the data he analyzed,
E1 testified that there were problems in interpreting the data
that the agency did produce and that he made �educated guesses� in
reaching assumptions about the agency's data. Testimony at p. 1974.
More specifically, E1 noted that there was no explanation about how the
work force files were created or how the term �promotion� was defined
in the data he examined. AJ Exhibit 2 at p. 9. He also testified
that the lack of computer documentation created some ambiguity in his
interpretations of the variables the agency used. Testimony at p. 1976.
He further observed that he was unable to specifically determine the
change in organizational units over time in order to track the movement
of some employees.<6>
Further, we cannot glean from the record whether the analysis E1 performed
gave sufficiently reliable results given the problems noted above.
According to his report, E1 compared the proportion of African American
promotions to various estimates of �availability� of African Americans
provided by the parties' experts. Even with this method, E1 stated that
the workforce data supplied by the agency was not sufficient to justify
a statistical availability analysis, particularly at different points
in time. Thus, although the agency urged the Commission to accept this
alternative method, there were numerous problems noted in the record
that called into question the reliability of the data analyzed.
In addition, the class argues that it was error for the AJ to exclude over
200 �promotions� of District Directors in E1's analysis. Although the
AJ did not specifically rule that these promotions should be included it
is clear that they were not part of E1's analysis. According to E1, he
was instructed to assume that �promotions should be defined as permanent
promotions to grades 13, 14, and 15 during the period October 1, 1995 to
the present�. The class counted the total number of promotions including
the promotion of District Directors in 1996 to be 467. E1 testified
that he concluded there were a total of 243 promotions roughly 200 less
than the class count. The agency's Director of the Human Resources
Division testified that District Director promotions were an upgrade
of their positions from GS-12 to GS-13 through the merit promotion
process and that many of them, in fact, became permanent. The agency
gave no persuasive argument why these promotions should not be counted
as permanent promotions, therefore, we conclude that they should have
been counted and considered in E1's analysis. Their omission from his
analysis casts further doubt on the reliability of his results and his
ultimate conclusions.
In addition, the AJ was aware on review of E1's report and during E1's
cross-examination, that there were deficiencies in the data he analyzed.
His report specifically outlines his observations about �the adequacy
and sufficiency of the available data sources.� AJ Exhibit 2 at p. 3.
The AJ's decision makes specific reference to E1's statements about the
lack of adequate data. Our regulations provide the AJ with specific
authority to require the parties to produce such documentary evidence
as deemed necessary, and may even direct an investigation of facts by
another agency certified by the Commission. 29 C.F.R. ��1614.204(f)(3)
and(h); 1614.109a-f. The AJ had the authority to order the agency to
address and remedy any deficiencies or to supplement the record as needed.
Thus, we find it was an abuse of discretion for the AJ to proceed without
addressing the deficiencies and shortcomings noted in the evidence.
Since we conclude that the analysis performed was based on unreliable
and incomplete data and that another analysis based on a more widely
acceptable method should be done, we draw no conclusion whether these
omitted promotions are relevant to an analysis based on applicant
flow data.
Applicant Flow Data
As the AJ aptly noted,�the most appropriate analysis [in this case would
be] the composition of the employees promoted and the applicant pool
from which potential promotees come.�<7> Decision p. 5. Even with
this observation, the AJ did not ensure that the record was adequately
developed in terms of determining how the agency's hiring process operated
during the time period in question. There is no indication that the
AJ required the agency to produce the data that was missing from the
record and deemed by her to be the most probative in the case before her.
The AJ explained that neither party's expert requested additional data.
However, we conclude that this was an insufficient basis for not requiring
that the appropriate data be produced. Relying solely on the failings
of the parties as a basis for not pursuing the best method of analyzing
the agency's hiring practices, was error because the hearing process
is intended to be an extension of the investigative process in a class
complaint as in any other complaint brought pursuant to our regulations.
See 29 C.F.R. � 1614.204(h) referencing �1614.109(a) through (f);
See also EEOC Management Directive (MD) 110, as revised, November 9,
1999, Chapter 7, page 7-1. We decline to impose a sanction as the
class urges, for the agency's failure to produce applicant flow data.
Our review of the record indicates that E1 testified that the class did
not specifically request the data.
The Supreme Court has stated that statistical analysis using applicant
flow data is a �very relevant� statistical model in discrimination
cases involving promotion and hiring. Hazelwood School District
v. United States, 433 U.S. 299, 309, n. 13 (1977); Wards Cove Packing
Co. Inc. v. Atonio, 490 U.S. 642, 650-1 (1989). The analysis requires
a comparison of the racial composition of persons who applied for a
position with the racial identity of persons who hold the at issue jobs.
Bullington v. United Airlines, 186 F.3d 1301 (10th Cir. 1999). In cases
involving hiring and promotion, an analysis of applicant flow data is
�the most direct route� to proof of discrimination. EEOC v. Olson's
Dairy Queens, 989 F.2d 165,169 (5th Cir. 1993). Mister v. Illinois
Central Gulf Railroad Co., 832 F.2d 1427, 1435 (7th Cir. 1987) (Applicant
studies are preferable as a rule because Title VII governs the treatment
of applicants.) Such data has probative force because it reflects
how the employer's hiring procedures actually operated as well as the
actual percentage of Caucasian versus African American applicants for
the positions in question. Bullington supra at 1313. Wards Cove Packing
Co. Inc. v. Atonio, 490 U.S. 642, 651 (1989) (The Supreme Court recognized
that where labor market statistics will be difficult if not impossible to
ascertain, certain other statistics � such as the racial composition of
�otherwise qualified applicants� are equally probative.); See Watson
v. Fort Worth Bank & Trust, 487 U.S. 977, 995 n. 3,997 (1988).(The
reliability or usefulness of any particular analysis will depend on the
surrounding facts and circumstances.); see also New York City Transit
Authority v. Beazer, 440 U.S. 568 (1979); and Dothard v. Rawlinson,
433 U.S. 321 (1977) (Court recognized certain alternative statistics).
As discussed above, E1 observed that there was no data provided about the
applicants to FSA vacancy announcements or on the vacancy announcements
themselves. Also not produced was data indicating the successful
candidates' prior position such that it could be determined whether
candidates were hired or promoted across organizational units. As we
stated before, based on the expert's own expressed reservations about
the data, the reliability of the analysis of that data is diminished.
We see no reason to find E1's analysis more reliable since it was based
on the very same unreliable data used by the parties' experts.
On remand, the parties as well as the AJ should be guided by the Supreme
Court's decision in Bazemore v. Friday, 478 U.S. 385 (1986). There,
the court set forth the parameters for evaluating the probative value of
statistical evidence in deciding the question whether discrimination was
proven by a preponderance of the evidence. That is, even a statistical
analysis (in Bazemore, multiple regression analyses) that includes less
than all measured variables may serve to prove the complainant's case
because a Title VII suit need not prove discrimination with scientific
certainty only by a preponderance of the evidence. Id. at 400. In
Bazemore, there was proof that the employer engaged in discriminatory
conduct prior to the enactment of the statute which the court found might
support the inference that such discrimination continued where the certain
aspects of the decision making process had undergone little change.
Id. at 402 citing Hazelwood supra at 309-310, n.15. The Court also held
that it was error not to consider the evidence in the record as a whole,
in addition to the statistical evidence, in determining whether there was
sufficient proof of a pattern and practice of discrimination. Id at 387
& 403.<8> In Bazemore, the court cited the probative value of evidence
of individual comparisons between salaries of African Americans versus
Caucasians and witness testimony which confirmed the continued existence
of such disparities. Id. at 403.
Because we remand this case for the statistical analysis to be redone
based on the more probative applicant flow data, we reach no decision
at this time on the class claim of disparate impact except to emphasize
that the burden of proof requires that the class identify a neutral
practice which resulted in a disparate impact on the protected class.
If a statistical disparity is shown, it must also be demonstrated that
there is a causal connection between the statistical disparity and
the specific employment practice alleged to have created a disparate
impact. Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988).
Individual Complaints
We also remand each individual appeal decided by the AJ as well as those
not specifically decided by the AJ but presently before us on appeal,
pending a decision on the class claims. Individual complaints filed
before or after the class complaint is filed and that come within the
definition of the class claim(s) will be subsumed within the class
complaint. MD 110 at Chapt. 8-4.
Individual complaints alleging reprisal must be addressed on an individual
basis regardless of the AJ's decision on the class complaint. MD 110 at
Chapt. 8-6. As there is no decision in the record addressing Mr. Herron's
claim of reprisal or any other individual claim of reprisal properly
raised, we remand the issue for a decision on the merits.
CONCLUSION
Based on the foregoing and after due consideration of the parties
statements on appeal and the record transmitted by the agency, the
Commission VACATES the agency's final action and REMANDS this matter for
further proceedings consistent with this decision and as ordered below.
ORDER
The agency is hereby directed to take the following action:
1. The agency is directed to submit a copy of the complaint file to
the EEOC Washington Field Office within fifteen (15) calendar days of
the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth below
that the complaint file has been transmitted to the Hearings Unit.
2. The agency is directed to supplement the record with applicant flow
data for a statistical analysis including but not limited to:
a) Machine readable data (hereinafter in a format deemed acceptable
by the AJ) on the applicants to FSA vacancy announcements during the
relevant time period as established by the AJ;
b) Machine-readable data on the vacancy announcements issued during
the relevant time period as established by the AJ and;
c) Machine readable data on the successful candidate's prior position
for each vacancy.
3. The agency is directed to provide standard computer documentation
describing the meaning of any variables used in any data produced and
how the agency's files were prepared.
4. The AJ may in his/her discretion reopen the period for discovery
to allow the parties to take depositions or other forms of discovery
regarding any additional analyses performed or to further clarify the
additional data produced by the agency.
5. The AJ shall take evidence and issue a finding and decision on the
issue of reprisal.
Thereafter the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.204(h) and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.204(j).
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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 complainant 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 complainant 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 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 (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
September 27, 2002
__________________
Date
1Clifford Herron, Appeal No. 01A20735;
Starendal Bryant Appeal No. 01A02597; Jim Lawson Appeal No. 01A20733;
Carnell McAlpine 01A05034; Matthew Miller Appeal No. 01A04941; Harry
Milner Appeal No. 01A20732; Charles Smith Appeal No. 01A20734; Helen
Smith Appeal No. 01A20731; Johnnie Blackwell Appeal No. 01A04644; Jerome
Jeffries Appeal No. 01A05202; Ozetta Thomas Appeal No. 01A05031.
2The Commission consolidates the individual appeals filed by class members
and class agents with the Class appeal pursuant to 29 C.F.R. �1614.606.
3The Consolidated Farm Service Agency, Federal Crop Insurance Corporation
and part of the Farmers Home Administration were combined to form the
Farm Services Agency in 1995.
4The AJ decided that based on the lack of reliability of the data
presented, she would appoint an expert to assist her in her evaluation
of the case. The person she appointed is a Social Science Analyst with
the EEOC's Office of General Counsel, Research and Analytic Services.
5Since the filing of the Class appeal, the individual appeal of Harold
Connor was settled and withdrawn.
6The AJ observed that this was a problem in accepting the conclusions
of the agency's expert where various reorganizations occurred changing
the identity of various administrative units thereby making it unclear
from where an employee had been promoted.
7The AJ's expert gave a cautionary footnote in his report that �it
is possible that a well designed applicant flow study, examining
qualified applicants for each promotion separately, would reach different
conclusions.� Memorandum from E1 to Administrative Judge dated June 11,
1999 at p. 2.
8Such evidence might include inter alia Class Exhibit C-6, admitted
into evidence, consisting of a report issued by the agency entitled
�Civil Rights at the United States Department of Agriculture - A Report
by the Civil Rights Action Team� (February 1997) which refers to a
1995 Government Accounting Office report. In the agency's report it
acknowledges, in effect, that women and minorities in comparison to white
men, were still represented in lower relative numbers in the agencies'
key job categories and that white men continued to dominate the higher
ranks of USDA's top positions in 1996. Id at p. 33. The dates of the
selections at issue in this case occurred between February 1995 and 1998,
closely coinciding with the findings in the agency's report.
The agency's report also acknowledged that minority farmers and
recipients of FSA program benefits were denied ready access because of
discrimination on the part of county office staff and that minority
participation rates in the commodities and disaster relief programs
was disproportionately low. At least two of the selections at issue
in this case were in the Emergency Non-Insured Assistance Program which
administered the disaster relief programs. Id at p. 21