01995493
06-01-2001
Agency.
Mildred W. Bennett v. Department of Agriculture
01995493
June 1, 2001
.
Mildred W. Bennett,
Claimant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01995493
Agency No. 870807
DECISION
This claim is before the Commission under the terms of an October
1993 class action settlement and an EEOC Order implementing it.<1>
Pursuant to the Order, the Commission docketed the instant appeal upon
the completion of the fact finding procedure on the claimant's case.
The fact finding procedure was established to examine claims for relief of
class members certified in Sonia Byrd v. Department of Agriculture, EEOC
Hearing No. 250-90-8171X, in accordance with the terms of an October 10,
1993 settlement between the class representative and the agency. For the
reasons that follow, we find that the claimant is entitled to relief.
The history of the underlying class action is well-documented.<2>
Briefly, the class agent filed a formal class EEO complaint against
the agency on August 7, 1987, alleging that the qualification
requirements for positions in the GS-475 series of the agency's Farmers
Home Administration (FmHA) discriminated against women.<3> The class
action challenged the requirement that persons seeking GS-475 positions
possess a degree in agriculture or have completed thirty semester hours
of agriculture-related course work (positive education requirement).
An Administrative Judge recommended certification of a class, which
was modified by the Commission. It also added the Office of Personnel
Management (OPM) as a party to the complaint. Byrd v. Department of
Agriculture, EEOC Request No. 05900291 (May 30, 1990).
On October 10, 1993, the parties entered into a settlement. It provided,
in pertinent part, that OPM would revise the qualification standards
for GS-475 positions in order to permit an individual to qualify
through education only, experience only, or a combination of the two.
It further stated that the agency would institute an individual claim
system, pursuant to 29 C.F.R. � 1614.204(1)(3), for class members
to make claims for individual relief if they believed that they were
affected by the positive education requirement for the GS-475 series.
Potential relief for individual class members was limited to those who
would have been qualified for positions in the GS-475 series under the
revised standard any time between October 12, 1986 and August 7, 1994.
Potential relief for individual class members was also limited to that
relief that would have been available under Title VII of the Civil
Rights Act of 1964, as amended, prior to the Civil Rights Act of 1991,
and did not include compensatory or punitive damages.
In March 1995, the claimant submitted a claim under the settlement
agreement. It showed that by 1983 she earned 24 college semester credits.
The claimant's first job with FmHA was in 1972 as an Assistant County
Office Clerk, GS-3 in Jasper, Alabama. She was promoted to County
Office Clerk, GS-4 in 1973; to County Office Assistant, GS-5 in 1982;
and to County Loan Technician, GS-6 in 1989.
The claimant did not describe the duties of her GS-5 position. She wrote
that as a County Loan Technician, GS-6 she assisted the County Supervisor
by performing office management and technical loan making and servicing
duties. This included loan application processing and closing. The
claimant submitted a January 1994 letter by her supervisor supporting a
claim that the claimant's job be upgraded to grade 7 pursuant to a desk
audit. The supervisor described the claimant's duties in relevant part as
preparing correspondence, assisting in preparing materials and presenting
group interviews to loan applicants, independently dealing with attorneys,
bankers, the probate office, and tax officials on matters relating to loan
applicants and borrowers. The duties were also described as completing
reamortization reviews, and in the context of collection activity working
with borrowers to revise household budgets and giving credit counseling.
As of March 1995 the claimant's position was not upgraded.
In her claim the claimant wrote that she did not have a record of
vacancy announcements for GS-475 jobs for which she would have applied.
But she submitted two vacancy announcements, i.e., one for a GS-475-9/11
in Alabama advertised in June 1989, and one for a GS-475-11 in Alabama
advertised in August 1991.
The agency issued a decision in October 1995 on the claimant's claim.
It determined that the claimant met the revised GS-475 experience
qualification standard by October 12, 1986. The decision did not
state whether this referred to the general experience qualification
standard that applied to GS-475-5 jobs, or the specialized experience
qualification standard that applied to GS-475-7 jobs. The agency denied
the claimant's claim. It reasoned that the claimant did not identify
any positions for which she would have applied and qualified for under
the revised qualification standards.
The claimant filed an appeal with the Commission. She argued that she
identified two positions for which she would have applied and qualified
for under the revised qualification standards, i.e., the two vacancy
announcements she submitted. The claimant argued that she attempted to
identify additional positions, but the agency informed her it did not have
copies of the vacancy announcements issued during the relevant period.
She argued that the agency should provide information on vacancies.
The claimant submitted a copy of an additional vacancy announcement for
a GS-475-11/12 position in Alabama advertised in January 1990.
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, including the claimant's,
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 the claimant is not entitled to relief. See also Mitchell,
et al. v. Department of Agriculture, EEOC Petition No. 04970021 (December
4, 1997).
The claimant's claim was referred to an EEOC fact finder in the
Birmingham District Office in Alabama. Meanwhile, in February 1998
the agency responded to interrogatories by the EEOC, Office of Federal
Operations, Complaints Adjudication Division (CAD). In response to
one interrogatory the agency enclosed certificates created pursuant to
requests by field offices' for eligible candidates to fill positions.
The certificates were created by the agency's FmHA's Special Examining
Unit, Personnel Division. At some point the claimant received a copy
of some or all of the Alabama certificates, apparently from the agency.
In her initial letter to the claimant in January 1999, the fact finder
asked the claimant to submit any information on GS-475 positions she would
have sought had she been qualified. The letter advised the claimant that
she did not need to duplicate any information she already submitted in
her claim. The claimant did not respond.
In a March 1999 follow up letter to the claimant, the fact finder asked
her to identify counties where she was available to work and the dates
she was available. The claimant replied that she was unable to obtain
any vacancy announcements for GS-475 positions other than the ones she
already submitted. She wrote that she wished she could give the names
of counties where vacancies were located, and always was available to
apply for job announcements because she wanted to better her career.
In May 1999 the fact finder wrote the parties stating that the
fact-gathering process was over, and notifying them that each had a right
to file a statement in support of their position. The claimant responded
by enclosing photocopies of certificates of eligibles which showed
vacancies for GS-475-5 and GS-475-7 positions in Alabama between June
1988 and November 1992. The claimant stated that she would have applied
for any of these vacancies had she been eligible, and noted that some
of the eligibles moved on to higher graded positions. She wrote that
she wished to apply for a higher grade job, and would have done well as
a GS-475-7. The claimant provided the agency with a copy of her response.
The fact finder then issued recommended findings of fact dismissing
the claimant's claim. The fact finder reasoned that despite her
correspondence of January 1999 and March 1999, the claimant failed
to identify any positions for which she would have applied under the
revised qualification standards.
In accordance with the procedures set forth in Mitchell, et al
v. Department of Agriculture, EEOC Appeal No. 01960816 (July 3, 1997),
the claimant's claim was automatically docketed as the instant appeal.
On appeal, the claimant controverts the fact finder's finding. She argues
that she submitted to the fact finder GS-475 vacancies for which she
would have applied as documented by the certificates of eligibles, and
states she would have worked throughout Alabama. The claimant argues that
she met the revised qualification standards for the GS-475-7 positions.
The agency states that it agrees with the finding of the fact finder.
The Commission exercises its discretion to consider the vacancies the
claimant identified in response to the fact finder's last letter of June
1999 for the following reasons. The claimant's initial response to the
fact finder demonstrates that she tried in good faith to comply with the
fact finder's request for information, but had difficulty understanding
what was required. Also, the claimant submitted the requested information
to the fact finder prior to the recommended finding of fact, and gave
a copy of this information to the agency.
Under the revised qualification experience standards, a claimant qualifies
for a GS-475-5 position if she has three years of general experience,<4>
one of which must be equivalent to at least the GS-4 level. Under the
revised qualification experience standards, a claimant qualifies at the
GS-7 level if she has one year of specialized experience equivalent to
at least the GS-5 grade.<5>
The claimant's description of her work experience demonstrates that
she met the revised general experience qualification standards for GS-5
positions by October 12, 1986. It appears the agency's concession that
the claimant met the revised GS-475 qualification standards referred
to this.
The claimant has not shown that the work she performed meets the revised
GS-475-7 specialized experience qualification standard. The description
of the claimant's work suggests that with regard to making loans, the
claimant's experience was nondiscretionary in nature, i.e., preparing
materials and correspondence, working with people to get required
documentation, and the like. There is no indication that the claimant
applied credit principles and practices in determining the viability of
agricultural operations, made judgments based on financial management
concepts, principles, laws, and regulations, or did any other activity
meeting the special experience requirement.
The Alabama certificates show that in November 1988 the agency attempted
to fill the position of Agricultural Management Specialist, GS-475, in
Oneonta, Alabama at the grade 7 level. After it was unsuccessful in doing
so, the agency attempted to fill the same position at the grade 5 level in
December 1988 (certificate number WA-AG-03-9-0002). The same certificate
attempted to fill three other slots for this position in other locations.
Oneonta was closest to where the claimant lived then and now.
The Commission is unable to discern, from reading the certificate,
whether the agency actually filled the Oneonta position. The agency
has not shown by clear and convincing evidence that the claimant would
not have been placed in this position. Accordingly, she is entitled to
be remedied, as ordered below.
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. If the agency fails to meet its burden, the claimant
is thereafter entitled to receive all step increases and career ladder
promotions. In this case, however, the claimant appears to assert 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 the 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.
Early on the claimant pointed to a GS-9/11 position which was advertised
in June 1989, a GS-11/12 position advertised in January 1990, and a
GS-11 position was advertised in August 1991. Even if she was selected
for the position in Oneonta in December 1988, the claimant would not
have the time in grade to be eligible for these positions. Moreover,
the claimant has not shown by a preponderance of the evidence that she
would have received subsequent competitive promotions.
CONCLUSION
The claimant is entitled to be offered the position of Agricultural
Management Specialist, GS-475-5, in Oneonta, Alabama, or a substantially
equivalent position, with back pay and other benefits, retroactive to
December 1988.
ORDER
(1) The agency shall offer the claimant placement in the position
of Agricultural Management Specialist, GS-475-5, in Oneonta, Alabama,
retroactive to December 1988, or a substantially equivalent position,
within 30 calendar days after this decision becomes final.
(2) The agency shall issue a check to the claimant for the appropriate
amount of back pay and other benefits, and provide appropriate
within-grade increases and career ladder promotions, if any (but not
interest)<6> under 29 C.F.R. �1614.501 which the claimant would have
received had she been selected for the position of Agricultural Management
Specialist, GS-475-5, in Oneonta, Alabama, or a substantially equivalent
position, in December 1988. This shall not result in a reduction in step
or grade at any point. The agency is liable for back pay until such time
as the claimant is placed as above, or declines an offer to be so placed.
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 a letter offering the claimant a
position as outlined above, and supporting documentation of the agency's
calculation of back pay and other benefits due the claimant, including
evidence that the corrective action has been implemented. The agency shall
send a copy of this report, together with any attachments and enclosures,
to the claimant.
ATTORNEY'S FEES (H0900)
If claimant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the claimant. If the agency does not comply with the Commission's order,
the claimant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The claimant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the claimant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993).
If the claimant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the claimant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
CLAIMANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole
discretion of the Court. Filing a request for an attorney does not
extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the
paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
June 1, 2001
__________________
Date
1The Order was made in Mitchell, et al. v. Department of Agriculture,
EEOC Appeal No. 01960816 (July 3, 1997). It was clarified in Mitchell,
et al. v. Department of Agriculture, EEOC Petition No. 04970021 (December
4, 1997).
2See, e.g., Byrd v. Department of Agriculture, EEOC Appeal No. 01890012
(December 11, 1989), reconsideration granted, Byrd v. Department of
Agriculture, EEOC Request No. 05900291 (May 30, 1990); Byrd v. Department
of Agriculture & Office of Personnel Management, EEOC Appeal No. 01913964
(March 17, 1992).
3As stated in Mitchell, the primary occupational titles for jobs in the
GS-475 series included District Director, Assistant District Director,
County Supervisor, and Assistant County Supervisor.
4General experience for GS-5 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.
5Specialized experience related to a demonstrated knowledge of the
principles and practices of agricultural production, practical marketing
of agricultural products by producers and sources of information
on this, credit principles and practices, and federal agricultural
programs. The qualification standard's listed examples are (1) applying
appropriate credit principles and practices in determining the viability
of agricultural operations, (2) solving farm production and marketing
problems to enhance productivity and financial conditions, (3) providing
advice to borrowers on the productivity and profitability of enterprises,
(4) adjusting loans where the work provided a knowledge of agricultural
concepts, principles, laws, and regulations, (5) surveying markets to
ascertain the production opportunities for and credit worthiness of
products, (6) making assessments of the progress of crops, health and
conditions of livestock, and other conditions affecting agricultural
operations, (7) making judgments based on financial management concepts,
principles, laws, and regulations, (8) operating a farm or business,
and (9) experience that demonstrates a working knowledge of agricultural
marketing and production.
6The 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).