01986860
04-24-2000
Dharma I. Aldahondo, )
Dharma I. Aldahondo v. Department of Agriculture
01986860
April 24, 2000
Dharma I. Aldahondo, )
Claimant, ) Appeal No. 01986860
) Agency No. 870807
v. )
)
Daniel Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
Claimant initiated an appeal to the Equal Employment Opportunity
Commission (the Commission) from a final decision of the agency concerning
her claim for relief as a class member of the class certified in Byrd
v. Department of Agriculture, EEOC Hearing No. 250-90-8171X, according
to the terms of an October 10, 1993 settlement agreement between the
class representative and the agency.<1> The Commission finds the appeal
timely (see 29 C.F.R. �1614.402)a)), and accepts it in accordance with
the provisions of 64 Fed.Reg. 37,644, 37,659 (1999) (to be codified at
29 C.F.R. �1614.405).<2>
On July 7, 1997, the Commission issued a decision in Mitchell, et
al. v. Department of Agriculture, EEOC Appeal No. 01960816, et al.
In that decision, the Commission briefly noted the history of the
Byrd litigation and more fully discussed the settlement agreement
between the class and the agency that resolved the liability portion
of the matter. The decision further addressed in detail the burdens
of proof applicable in the remedy phase of a class action where the
parties incorporated Commission regulation 29 C.F.R. �1614.204(l)(3)
into their settlement agreement. The Commission finds that the decision
in Mitchell is applicable to this case and we incorporate by reference
that decision herein.
The settlement agreement required the Office of Personnel Management,
which was a party to the underlying Byrd action, to revise the individual
qualification standard applicable to positions in the Agriculture
Management Series, GS-475. Prior to the revisions, candidates for
GS-475 positions had to meet strict educational requirements. Under the
revised qualification standard, a candidate may qualify by meeting
an educational requirement, by meeting an experience requirement, or
through a combination of education and experience. The qualification
standard sets forth the general and specific experience requirements
candidates for GS-475 positions must possess. It also lists the courses
a candidate must have taken in order to meet the educational requirement
for consideration for a GS-475 position.
Claimant began working for the agency as a Clerk Typist in August 1989.
She became an Office Automation Clerk, GS-326, in December 1992, a
position which she held until becoming a County Program Technician,
GS-1101-5, in February 1995. Claimant earned a Bachelors degree in
Secretarial Science in 1981. Claimant stated that she qualified for a
GS-475 position in May 1990, based upon her experience. Claimant listed
19 positions, including 14 GS-11/12 County Supervisor and Farmers Program
Specialist positions, for which she would have applied from 1990 through
1993.<3>
In its final decision, the agency found that claimant lacked the
qualifying experience for the GS-475 positions cited in her claim.
The agency further determined that claimant's degree did not meet the
education standards, as Secretarial Science was not a qualifying area
of study.
The Commission agrees with the agency that claimant was not qualified
for the GS-475 positions she identified in her claim. Claimant worked
for the agency in clerical positions until February 1995. Thus, she did
not have the requisite general experience for a GS-475 position until
after that time. Further, claimant was not qualified for the GS-11/12
County Supervisor and Farmer Program Specialist positions, as she did
not show that she had one year of specialized experience at the GS-9
level prior to the positions being filled. Accordingly, the agency's
decision to dismiss the claim for relief herein is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
___04-24-00_______ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify
that the decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
_________________________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.
2The agency failed to submit a postal return receipt or other evidence
that would show when the claimant received the final agency decision;
accordingly, the appeal is deemed to be timely.
3While claimant also stated that she also would have applied for a Loan
Specialist, GS-1165, position, such positions were not subject to the
old positive education requirement.