Agency.

Equal Employment Opportunity CommissionJun 1, 2001
01995491 (E.E.O.C. Jun. 1, 2001)

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).