Agency.

Equal Employment Opportunity CommissionJun 1, 2001
01A02317 (E.E.O.C. Jun. 1, 2001)

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).