01A02317
06-01-2001
Agency.
Pauline M. Dickerson v. Department of Agriculture
01A02317
June 1, 2001
.
Pauline M. Dickerson,
Claimant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A02317
Agency No. 87087
Hearing No. 170-99-8043X
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 March 29, 1995, claimant submitted a claim under the settlement
agreement. In September 1980, claimant began her career at the agency as
a contract temporary employee in the agency's Salisbury, Maryland office.
In May 1981, claimant worked as a GS-0322-03, temporary Emergency
Loan Clerk. Her temporary appointments ended in August 1982. In 1983,
the agency hired claimant into a permanent position as a GS-0322-03
Clerk Typist, in Salisbury, Maryland. In September 1984, claimant was
promoted to GS-4. In January 1988, claimant was promoted to GS-1101-05,
Program Assistant. In November 1989, claimant was promoted to GS-1101-06,
Rural Development, Loan Technician in Dover, Delaware. In January 1996,
claimant was promoted to GS-1101-07 and subsequently to GS-1107-09
in January 1997 and again promoted to GS-1107-11 in September 1998.
Claimant earned her GED in 1977, received a diploma from Woodbridge
Secretarial School and received a certificate from the Dunn and Brad
Street Financial Analysis Training program.
Claimant asserts that she met the revised qualification standards for a
GS-475 position on October 12, 1986. At that time, claimant had two years
experience as GS-4 County Office Clerk and over three years at the GS-2/3
level as a County Office Clerk Typist. By October 12, 1986, claimant
asserts that she had wide-ranging experience servicing loans, analyzing
credit applications, and assisting borrowers in preparing budgets.
The agency issued an undated decision on claimant's claim concluding
that claimant did not met the revised GS-475 experience qualification
standard until January 17, 1991. The agency argued that claimant
could have qualified for one position after January 17, 1991, under
the revised standards. However, the agency concluded that claimant
would not have been selected for the position because the selectee
had superior qualifications based upon his education and experience.
From this 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 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 she would not have
been selected. 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
claimant's case, and referred it to the fact finding. Claimant's claim
was referred to an EEOC AJ for fact finding.
The AJ then issued a recommended decision on the claim. The AJ concluded
that claimant would have qualified for an entry-level GS-475 position on
October 12, 1986. The AJ found that claimant would have been selected for
a GS-475-05 position in the Salisbury, Maryland County Office on January
4, 1987. The AJ further found that claimant would have received career
ladder promotions to GS-7 on January 4, 1988 and GS-9 on January 4, 1989.
The AJ also found that claimant would have been placed in a GS-475-11
Rural Agricultural Management Specialist Position in the Salisbury,
Maryland office on January 30, 1992.
In accordance with the procedures set forth in Mitchell, et al
v. Department of Agriculture, EEOC Appeal No. 01960816 (July 3, 1997),
claimant's claim was automatically docketed as the instant appeal.
The agency argues that claimant did not possess specialized experience,
and hence was not qualified for the GS-475-05 position until January
17, 1991. 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> We find that
claimant met the general experience standard on October 12, 1986, because
at that time she had over three years of qualifying experience; namely,
two years as a GS-4, County Office Clerk and three years as a GS-2/3
County Office Clerk Typist. Specifically, the fact finding revealed that
as a Clerk Typist in the County Office, she independently interviewed
farm borrowers, set up their Farm and Home Plans and Year End Analysis
and wrote checks from borrower's supervised bank accounts. In addition,
as a Clerk Typist, claimant handled all rural housing responsibilities,
including deciding servicing actions, assisting borrowers in preparing
budgets, interviewing single family housing applicants for housing loans,
accepting loan applications and making recommendations to the County
Supervisor regarding eligibility. By October 12, 1986, claimant trained
newly hired Assistant County Supervisors regarding agency procedures,
discussed requirements for moratorium on payments with borrowers;
conducted interest credit interviews, processed debt statements,
processed loan applications through closing and conducted field visits
for inventory properties. The agency fails in the instant appeal to
clarify its position that claimant became qualified for an entry level
GS-475 position on January 17, 1988.
As stated, the agency has the burden of showing, by clear and convincing
evidence, that claimant would not have received an entry level GS-475
position. If the agency fails to meet its burden, claimant is thereafter
entitled to receive all step increases and career ladder promotions.
In this case, however, claimant asserted that she is also entitled
to a competitive promotion within the GS-475 series beyond an entry
level position. In fact claimant argues that she should be entitled to
promotion to the GS-475-12 level. 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.
The record suggests that the Agricultural Management Specialist position
for which claimant is entitled to receive back pay and benefits had
a career ladder to GS-9. Most of the other Agricultural Management
Specialist, GS-475-5 in the request for eligible documents for Maryland
and Delaware specified that they had promotion potential to GS-9.
While claimant identifies several competitive GS-475-11 positions
for which she would have applied, she fails to meet her burden of
establishing by preponderant evidence that she would have received any
competitive promotion beyond GS-9. The record evidence establishes that
such positions were rare and highly competitive, therefore claimant's
entitlement to such a position would be overly speculative.
CONCLUSION
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-475-5 in Salisbury, Maryland on January 4, 1987 including
career ladder promotions to GS-475-9, as outlined in the order below.
Claimant is not entitled to interest on back pay.<6>
ORDER
(1) The agency shall issue a check to claimant for the appropriate amount
of back pay and other benefits such as appropriate within-grade increases,
career ladder promotions, recalculation of retirement (but not interest)
under 29 C.F.R. �1614.501 which claimant would have received had she
been placed in the position of Agricultural Management Specialist,
GS-475-5 in Salisbury, Maryland on January 4, 1987. The agency shall
complete these actions no later than 90 calendar days of the date this
decision becomes final. 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 claimant for the undisputed
amount within 90 calendar days of the date this decision becomes final.
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 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 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 claimant. If the
agency does not comply with the Commission's order, claimant may petition
the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a).
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, 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 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 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 1, 2001
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
__________________
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. 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.
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).