01A03372
02-01-2002
Agency.
Roni Atkins; Colleen Carson; Louise McBride v. Department of Agriculture
01A03372; 01A05826; 01A05825
February 1, 2002
.
Louise McBride; Colleen Carson; Roni Atkins
Claimants,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal Nos. 01A05825; 01A05826; 01A03372
Agency No. 870807
Hearing Nos. 380-99-8021X; 380-99-8020X <1>
DECISION
Pursuant to the Commission's July 3, 1997 Order in Mitchell, et
al. v. Department of Agriculture, EEOC Appeal No. 01960816, et
al. (Mitchell I), the Commission has docketed the instant appeals
upon the completion of the fact finding procedure set forth therein.
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 agreement between the class representative and
the agency. For the reasons that follow, we find that the claimants
are entitled to relief. Specifically, they have met their burden of
establishing that they would have qualified for GS-475 positions under
the revised qualification standards, and there were positions for which
they would have applied. Further, the agency failed to prove, by clear
and convincing evidence, that claimants were not entitled to relief.
PROCEDURAL HISTORY
The history of the underlying class action is well-documented in prior
Commission decisions.<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.
An Administrative Judge (AJ) recommended certification of a class of all
females employed by the FmHA on or after October 12, 1986. The agency's
rejection of the AJ's recommendation was reversed by the Commission,
which found that the class complaint, as described by the AJ, satisfied
the requirements for certification. Byrd v. Department of Agriculture,
EEOC Appeal No. 01890012 (December 11, 1989). The Commission subsequently
granted the agency's request for reconsideration, but upheld the class
certification, further defined the class by excluding those female FmHA
employees who qualified for GS-475 positions under the old standard prior
to October 12, 1986. Byrd v. Department of Agriculture, EEOC Request
No. 05900291 (May 30, 1990). In addition, the Office of Personnel
Management (OPM) was added as a party to the complaint.
On October 10, 1993, the parties entered into a settlement agreement.
The agreement 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.<4> The agreement 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 class members 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.
BACKGROUND
The claimants herein, all residents of Idaho, filed individual claims
for relief pursuant to the Byrd settlement agreement.<5> The agency
initially denied the claims, after which the claimants filed appeals with
the Commission. On July 3, 1997, the Commission issued the decision in
Mitchell I. In that decision, the Commission determined that many of
the claims that the agency had previously rejected, including those of
the claimants, required reconsideration using a fact finding procedure
that was established. 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 addressed the burdens of proof applicable
in the remedy phase of a class action. In that regard, the Commission
determined that, where a 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 the claimants are not entitled to relief. See also Mitchell, et
al. v. Department of Agriculture, EEOC Petition No. 04970021 (December 4,
1997) (Mitchell II).
Atkins
Atkins filed a claim for relief on March 27, 1995. Atkins began work
for the agency on July 12, 1973. Claimant worked as a Stay-In-School
(GS-1) from July 12, 1973 until May 10, 1975, a County Office Assistant
from May 11, 1975 until March 11, 1978, an Assistant County Supervisor:
Loan Assistant (GS-1165-7/9) from March 12, 1978 until August 11, 1990,
and a County Supervisor: Loan Specialist (GS-1165-11) from August 12,
1990 until the filing of the instant claim. On April 17, 1995, the
agency issued a decision rejecting the claim, noting that claimant
failed to identify any GS-475 positions, for which she was qualified,
during the claim period.
Carson
Carson filed a claim for individual relief on March 29, 1995. Carson
has worked for the agency since January 12, 1970. Carson worked as a
County Office Clerk (GS 2/5) from January 12, 1970 until June 18, 1978,
an Assistant County Supervisor: Loan Assistant (GS-1165-5/7/9) from
June 18, 1978 until November 4, 1980, an Assistant County Supervisor:
Loan Specialist (GS-1165-11) from November 4, 1980 until January 1993,
and County Supervisor (GS-1165-11/12) from January 10, 1993, until the
filing of the instant complaint. On April 9, 1996, the agency issued
a decision rejecting the claim. The agency rejected the claim because
claimant failed to identify any GS-475 positions, for which she was
qualified, during the claim period.
McBride
McBride filed a claim for individual relief on March 27, 1995. McBride
worked for the agency from January 14, 1974 until March 24, 1989, and
again from February 22, 1994 until the filing of the instant claim.
McBride worked as a County Office Assistant (GS-5) from January 14, 1974
until September 23, 1978, an Assistant County Supervisor: Loan Assistant
(GS-1165-7) from September 24, 1978 until October 7, 1979, an Assistant
County Supervisor: Loan Specialist (GS-1165-9) from October 7, 1979 until
January 16, 1988, a County Supervisor: Agriculture Management Specialist
(GS-1165-10) from January 17, 1988 to March 24, 1989. McBride then left
the agency and returned to work for the agency as a Rural Housing Loan
Technician from February 22, 1994 until the filing of the instant claim.
On May 31, 1995, the agency issued a decision rejecting the claim.
The agency rejected the claim because claimant failed to identify any
GS-475 positions, for which she was qualified, during the claim period.
The agency rejected these claims of entitlement to individual relief.
The agency concedes that claimants are members of the class and that they
met the revised qualification standard, on the first day of the claim
period, October 12, 1986. The agency denied the claims on the grounds
that claimants did not identify specific positions to which they are
entitled. From the agency's final decision, these claims were submitted
to an EEOC Administrative Judge (fact finder). The fact finder disagreed
with the agency's conclusion and recommended retroactive placement of
each claimant in an appropriate GS-475 position. Following the fact
finder's recommended decision, the claims were automatically docketed
as the instant appeal.
ANALYSIS AND FINDINGS
After an objective review of the record, including claimants' claims for
relief and statements on appeal, we conclude that claimants are entitled
to relief. The fact finder recommended that all three claimants be
retroactively awarded County Supervisor positions. The fact finder
did not identify specific positions to which claimants were entitled.
As previously mentioned, to establish entitlement to relief, claimants
must show that they are members of the class and were affected by the
positive education requirement. The burden of proof then shifts to the
agency to show by clear and convincing evidence, that the claimants are
not entitled to relief.
As proof that they were adversely affected by the positive education
requirement, the claimants have submitted a list of GS-475 personnel
actions. The list identifies appointments to GS-475 County Supervisor
positions during the claim period. The list identifies the selectees'
names and dates of appointment. The agency argues that this list of
personnel actions is insufficient to establish that the claimants were
adversely affected since these personnel actions may have resulted from
noncompetitive actions.
We affirm the fact finder's conclusion that the list of newly appointed
GS-475 County Supervisors is sufficiently specific enough to meet
claimants' burden of establishing that they were adversely affected.
We find that the list clearly establishes that the agency placed
candidates in GS-475 County Supervisor positions during the claim period.
The claimants were ineligible to occupy these positions because of the
positive education requirement. We therefore conclude that the claimants
have met their burden of proving that they were adversely affected by
the positive education requirement.
We remind the agency that claimants requested discovery documents showing
detailed information on vacancies and placements for the GS-475 positions
in Idaho during the claim period. The agency did not object to the
claimants' request for documents, nor did it produce the documents.
The burden now shifts to the agency to show, by clear and convincing
evidence, that claimants are not entitled to relief.
Position No. 1
The first County Supervisor position that was filled during the claim
period became available on November 17, 1996, in Rupert, Idaho.
Carson states that she would have applied for the Rupert position
but for the positive education requirement.<6> On appeal, the agency
argues that the selectee had superior qualifications because selectee
was a transferee who was already performing County Supervisor duties.
Prior to his selection, selectee worked as a County Supervisor for 2
years and, prior to that, selectee held an Assistant County Supervisor
position for 5 years. The selectee also earned a Bachelor of Science
Degree with 51 quarter hours of agriculture-related course work.
We concur with the fact finder's determination that the agency failed to
establish, by clear and convincing evidence, that the selectee was better
qualified for the Rupert, Idaho position, than Carson. Carson lacks the
selectee's education and experience as a County Supervisor. However,
we cannot understate the record evidence of Carson's distinguished and
lengthy experience with the agency. Particularly, at the time of the
Rupert, Idaho selection, Carson had worked for the agency for over 26
years in various capacities. Carson worked as an Assistant County
Supervisor for 8 years and 5 months, the selectee had only 5 years
experience as an Assistant County Supervisor before being promoted
to County Supervisor.<7> Carson submitted affidavits, in support of
her claim, from the Chief of Farmers Programs for the State of Idaho,
two Idaho State Directors and the current County Supervisor. In light
of claimant's history with the agency and her record of performance, we
are not persuaded by clear and convincing evidence that the selectee was
better qualified than Carson. Accordingly, Carson should be retroactively
awarded the County Supervisor (GS-475-12) position in Rupert, Idaho,
or a substantially equivalent position, with appropriate back pay and
benefits on November 17, 1986.
Position 2
The second County Supervisor position became available on December 6,
1986, in Mountain Home, Idaho. Atkins and Carson would have qualified
under the revised qualification standard for the County Supervisor
position in Mountain Home. The agency did not provide information on
the qualifications of the selectee. Accordingly, the agency has failed
to establish, by clear and convincing evidence, that the selectee is
more qualified than claimants.
We turn now to the difficult task of deciding which claimant, Atkins
or McBride, is entitled to the Mountain Home, Idaho, County Supervisor
position. On December 6, 1986, both claimants had worked for the
agency as Loan Specialist, GS-1165 Assistant County Supervisors for over
8 years. Since Atkins had been a GS-1165 Assistant County supervisor
for 6 months longer than McBride and since Atkins began working for the
agency 7 months before McBride, we conclude that Atkins is entitled to
the Mountain Home, Idaho, County Supervisor (GS-475-11/12)position or a
substantially equivalent position, with appropriate back pay and benefits
on December 6, 1986.
Position 3
The third County Supervisor position became available on December 21,
1986, in Shoshone, Idaho. We find that claimant, McBride, would have
qualified and applied for the position under the revised qualification
standard. However, we conclude that the agency has established, by
clear and convincing evidence, that the selectee is more qualified for
the Shoshone position.
At the time of the selection, the selectee for the Shoshone position
had 4 years of experience as a County Supervisor, 7 years of experience
as an Assistant County Supervisor and a Bachelor of Science Degree in
Agriculture Economics. By comparison, at the time of the selection,
McBride had approximately 8 years of experience as an Assistant County
Supervisor. The agency has established, by clear and convincing evidence
that the selectee was more qualified than claimant.
Position 4
The fourth County Supervisor position became available on August 14,
1988, in Arco, Idaho. According to the record, as established before
the fact finder, the Arco position remained vacant. The agency has
failed to establish that the Arco position would have remained unfilled.
The agency failed to proffer any information upon which it could rely in
meeting its burden. We conclude that McBride is entitled to the Arco,
Idaho, County Supervisor (GS-475-11/12) position or a substantially
equivalent position, with appropriate back pay and benefits from
August 14, 1988 through March 24, 1989. As we have previously decided,
claimant is not entitled to relief for the period from March 24, 1989
through February 21, 1994, while she was not employed by the agency.
See Mitchell I Appendix B Note 17.
McBride was entitled to reestablish her entitlement to relief beginning
February 21, 1994, when she returned to the agency. However, claimant
failed to identify a position that she would have qualified for, but for,
the previous positive education requirement following her return to the
agency on February 21, 1994.
CONCLUSION
The claimants are entitled to the relief as set forth above. Claimants
are entitled to appropriate back pay and benefits.
ORDER
The agency is ordered to take the following remedial action within thirty
(30) calendar days for the date this decision becomes final:
1. The agency shall retroactively place claimant Carson into the County
Supervisor position available at the agency's facility in Rupert, Idaho
on November 17, 1986, or substantially equivalent position, including
providing claimant back pay with appropriate step increases and career
ladder promotions.
2. The agency shall determine the appropriate amount of back pay and
other benefits due claimant Carson pursuant to 29 C.F.R. � 1614.501.
The claimant shall cooperate in the agency's efforts to compute the amount
of back pay and benefits due, and shall provide all relevant information
requested by the agency. If there is a dispute regarding the exact
amount of back pay and/or benefits, the agency shall issue a check to
the claimant for the undisputed amount. The claimant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
3. The agency shall retroactively place claimant Atkins into the County
Supervisor position available at the agency's facility in Mountain
Home, Idaho on December 6, 1986, or substantially equivalent position,
including providing claimant back pay with appropriate step increases
and career ladder promotions.
4. The agency shall determine the appropriate amount of back pay and
other benefits due claimant Atkins pursuant to 29 C.F.R. � 1614.501.
The claimant shall cooperate in the agency's efforts to compute the amount
of back pay and benefits due, and shall provide all relevant information
requested by the agency. If there is a dispute regarding the exact
amount of back pay and/or benefits, the agency shall issue a check to
the claimant for the undisputed amount. The claimant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
5. The agency shall issue claimant McBride a check representing back
pay and benefits for work as County Supervisor in Arco, Idaho, from
August 14, 1988 through March 24, 1989.
6. If there is a dispute about the amount of back pay or other benefits
due to claimants Carson, Atkins of McBride, the agency shall issue a
check for the undisputed amount. 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."
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 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)
(1994 & Supp. IV 1999). 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 (M0701)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 1, 2002
Date
1 Hearing number is unavailable for claimant, Roni Atkins.
2 See, 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).
3 As 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.
4 With respect to the education requirement, the qualification standard
provides: Major study - farm, livestock, or ranch management; agricultural
economics; agricultural management;
agricultural education; agricultural engineering; agricultural resources
management; general agriculture, agronomy, or crop science; animal, dairy,
or poultry husbandry; non-ornamental horticulture; business; finance;
financial management; business management; economics; accounting; or
other field related to the position to be filled.
With respect to the general experience requirement, the qualification
standard provides: Experience that provides an understanding of the
fundamental principles and techniques of agricultural management, and
the principles and practices of credit and finance.
5 The Commission has determined that, based upon the claimants' common
state of residence and the fact that claimants claimed entitlement to
the same positions, it would best serve the interests of the parties to
consolidate these appeals.
6 The fact finder concluded that all of the claimants were entitled
to the first available GS-475 position. However, in Mitchell II, the
Commission determined that only one claimant may be awarded each position.
Among the claimants, we conclude that Carson is entitled to the first
available position, based upon her more developed claim for relief and
her uninterrupted, lengthy employment at the agency.
7 An acting County Supervisor position in Mountain Home, Idaho became
available from October 12, 1986 to December 6, 1986. Claimants have
not established that they could have been selected to this position,
which the agency temporarily filled, while it selected a permanent
County Supervisor.