01995491
06-01-2001
Agency.
Sarah C. Clark v. Department of Agriculture
Appeal No. 01995491
June 1, 2001
.
Sarah C. Clark,
Claimant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01995491
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 she earned a Bachelor of Science Degree in
Biology in May 1976, and that from September 1988 to May 1990 earned
28 graduate semester hours, 23 of which were in Animal Science.<4> The
claimant's first job with FmHA was in 1978 as a Clerk Typist, GS-0301-03.
She was promoted in 1981 to the position of County Office Assistant,
GS-322-05, and promoted again in September 1992 to the position of County
Program Technician, GS-1101-6. All these jobs were in Jefferson County,
in Fayette, Mississippi
On September 7, 1992, FmHA issued the claimant a notice of rating finding
her eligible for the position of Agricultural Management Specialist,
GS-475 at the grade 5 and 7 levels.<5>
In her claim the claimant wrote that she had she met the positive
education requirement, she would have applied for GS-475 vacancies
advertised in several counties within commuting distance. She wrote
that she did not have a record of vacancy announcements for GS-475
jobs for which she would have applied, and they were not retained by
her Personnel Office. She recalled that in the Fall of 1991 and the
Spring of 1992 the agency posted vacancy announcements for the position
of County Supervisor, GS-475-9/11, located in Fayette, Mississippi, and
indicated that she would be interested in these jobs. In an accompanying
letter, the claimant also contended that an Assistant County Supervisor
position in Jefferson County became vacant in approximately July 1992,
but her supervisor explained that because she had relatives in the county
and knew many people there, she would not qualify for the position.
Finally, the claimant submitted with the claim a list of employees who
were hired into the GS-475 series with enter on duty dates ranging
from July 1985 to June 1994. The claimant stated that she may have
possibly applied for positions encumbered by names she highlighted.
The highlights are not visible on the photocopied list in the record.
The list does not contain the name or grade level of the positions.
The agency issued a decision in October 1995 on the claimant's claim.
It determined that the claimant met the revised GS-475 general experience
qualification standard by October 12, 1986, but denied her claim.
It reasoned that the claimant did not qualify for the two GS-475-9/11
jobs she identified, nor provide sufficient information about any
other positions. In a note separate from the final agency decision, the
agency stated that the claimant did not have any specialized experience.
Under the revised qualification standards, specialized experience or
education is required for GS-475 jobs at the GS-7 level and above.
The claimant filed an appeal with the Commission. She argued that
she was qualified under the revised qualification standards for the two
GS-475-9/11 positions she identified.
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. This included field
offices in Mississippi. The record does not show that the agency sent a
copy of its responses to the claimant, or that she has been made aware
at any time in a decipherable fashion of certificates that documented
additional vacancies in Mississippi. The claimant had complained that
information on vacancies was unavailable.
In her initial letter to the claimant in December 1998, the fact finder
asked her to submit any information on her qualifications for GS-475
positions under the revised standards, as well as any GS-475 positions
to which she may have sought had she been qualified. The claimant did
not respond to this letter.
In a March 1999 follow up letter to the claimant, the fact finder asked
her to identify counties where she was available to work as a GS-475-5/7,
and the dates she was available. The claimant replied with a list
of nine Mississippi counties, and indicated she was always available.
She suggested that she would have been interested in GS-475-5/7 jobs.
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
with information about her qualifications.
In June 1999 the fact finder issued recommended findings of fact that
the claimant would have applied for GS-5/7 positions during the relevant
time frame, that such jobs were filled, and hence she was a member of
the class.
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 was represented by counsel. It does not appear
that she had representation in front of the fact finder. She asks for
any information on GS-475 vacancies, and states she was hampered by
the agency's failure to provide her such information. Arguing that
she would have been progressively promoted if the agency did not have
the positive education requirement, the claimant asks for $129,218 in
back pay, with interest and attorney fees and costs. The claimant also
submitted a statement by a retired County Supervisor which gave added
information on her qualifications. The agency responds by stating that
it agrees that the claimant is a member of the class, and it will try
to remedy the claimant upon a showing that she was adversely affected.
Under the revised qualification experience standards, a claimant qualifies
for a GS-475-5 position if she has three years of general experience,<6>
one of which must be equivalent to at least the GS-4 level. It is
uncontested that the claimant met this general experience standard by
October 12, 1986. 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.<7> We find that the
claimant met the one year of specialized experience at the GS-5 level
by 1988. In her 1996 appeal, the claimant contended that for several
years prior to July 1992 she performed GS-7 duties, and made housing loan
eligibility recommendations to her supervisor. In the claimant's May 1999
response to the fact-finder, she added that she acted (without official
recognition) as an Assistant County Supervisor for about a year, from
1987 to 1988, and this included making loan eligibility recommendations
to the County Supervisor and offering credit counseling to borrowers.
Finally, with the instant appeal, the claimant submitted a statement from
the referenced County Supervisor which corroborated the statement, except
that the County Supervisor stated that the claimant took on some of the
responsibilities of Assistant County Supervisor around 1982 to 1983.<8>
Two Mississippi certificates (#WA-AG-03-8-0225) and (#WA-AG-03-8-0209)
show that in November and December of 1988, the agency sought to fill
multiple slots for the position of Agricultural Management Specialist,
GS-475. The location of Yazoo County Mississippi in Yazoo City was
filled from the former GS-5 certificate effective January 1, 1989.
The selectee had a rating of 86. It was the first slot filled in the
certificates that was located in one of the counties the claimant informed
the fact finder she was available to work. Many subsequent Mississippi
certificates indicated that the full performance level of Agricultural
Management Specialist, GS-475-5 and GS-475-7 positions was GS-9.
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 argues that she is
also entitled to subsequent competitive promotions to the GS-475-9
level and above. 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 claimant has failed to meet this burden.
As the claimant is a prevailing party, she may apply for attorney fees
and costs as instructed below.
CONCLUSION
The claimant is entitled to be offered the position of Agricultural
Management Specialist, GS-475, in Yazoo City, Mississippi, or a
substantially equivalent position, at the pay level specified below,
retroactive to January 1, 1989.
ORDER
(1) The agency shall offer the claimant placement into the position of
Agricultural Management Specialist, GS-475, in Yazoo City, Mississippi,
or a substantially equivalent position, within 30 calendar days after
this decision becomes final. It shall make the offer retroactive to
January 1, 1989. It shall offer the position at the GS-7 level if the
Yazoo City position had a GS-7 career ladder level.
(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 (but not interest)<9>
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, in Yazoo City, Mississippi, or a substantially equivalent
position, effective January 1, 1989. 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.
(3) 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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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.
4The GS-475 series qualification standards were revised in 1990 to
require either a degree in an agriculture-related field or a minimum of 15
semester hours of course work plus related experience. While the claimant
conceded that she met this revised standard in the Spring of 1990,
the agency's implementation of the standard was not always immediate.
5Under the settlement, the claimant is eligible for relief for being
adversely affected by the 475 standards from October 12, 1986 to at
the latest September 7, 1992. The coverage ceased by September 7,
1992 because the claimant received her GS-475 rating and was no longer
adversely affected by the education requirement. Her coverage may have
ceased earlier. See footnote 5. Mitchell et al. v. Department of
Agriculture, EEOC Appeal No. 01960816, see, e.g., notes 1, 6 and 18.
6General 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 included determining whether applications for loans meet
established eligibility criteria.
7Specialized 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.
8The Commission exercises its discretion to consider the May 1999
response and the statement submitted on appeal. The May 1999 response
was submitted before the fact finder issued her recommended decision,
and the appeal information added clarification.
9The 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).