01986803
06-06-1999
Erma Hernandez, )
Abigail Santana-Ramos, Erma Hernandez, Sylvia M. Gerena, Elis A. Marrero
v. Department of Agriculture
01986803
June 6, 1999
Abigail Santana-Ramos, )
Erma Hernandez, )
Sylvia M. Gerena, ) Appeal Nos. 01986803
Elis A. Marrero, ) 01986806
Appellants, ) 01986870
) 01986918
v. ) Agency No. 870807
)
Daniel Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Appellants initiated appeals to the Equal Employment Opportunity
Commission (the Commission) from final decisions of the agency concerning
their claims for relief as class members 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. The Commission finds the appeals timely
(see 29 C.F.R. �1614.402)a)), and accepts them in accordance with the
provisions of EEOC Order No. 960, as amended.<1>
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.
Santana-Ramos, EEOC Appeal No. 01986803
Appellant began working for the agency as a County Office Clerk,
GS-322-3, in June 1982. Appellant became a County Office Assistant,
GS-1101-5, in October, 1992, a position she held until being promoted to
a County Program Technician, GS-1101-6, in February 1995. At the time
she filed her claim, appellant was working as a Community Development
Technician, GS-1101-6. Prior to coming to the agency, appellant worked
as a Clerk-Typist. Appellant stated that she performed unspecified
agriculture-related activities on a family farm. Appellant stated that
she qualified for a GS-475 position in October 1986, and would have
applied for three Assistant County Supervisor, GS-475-5, positions filled
in 1987.
In its final decision, the agency found that appellant did not meet the
new GS-475 qualification standard until October 1995, that is, after the
specified claim period. Specifically, the agency stated that appellant's
clerical positions were not sufficient to meet the general experience
requirement, and that her degree in Secretarial Services did not meet
the education requirement. The agency noted that, as of August 7,
1994, appellant had only one year and 10 months of general experience,
and not the requisite three years.
The Commission agrees with the agency that appellant was not qualified
for the GS-475 positions she identified in her claim. Appellant worked
for the agency in a clerical position until October 1992. Thus, she did
not have the requisite general experience for a GS-475 position until
after that time. Although appellant asserted generally on appeal that
she performed related duties, appellant did not specify what functions
she performed or the periods in which she did so. The record shows
that the detail assignments cited by appellant were clerical in nature.
Further, while appellant completed graduate level business courses,
the majority of credits were obtained after the specified claim period.
Hernandez, EEOC Appeal No. 01986806
Appellant worked for the agency as a County Office Clerk, GS-322-2 through
4, from March 1976 through January 1995. Prior to coming to the agency,
appellant worked as an Elementary School teacher. Appellant stated
that she qualified for a GS-475 position in October 1986, based upon
her experience at the agency. Appellant referenced 20 GS-475-5/7
Assistant County Supervisor positions, as well as 8 GS-475-11 County
Supervisor positions available from January 1987 through July 1993.
Appellant stated, generally, that she performed financial advising and
loan closing duties while working at the agency from 1976 through 1994.
In its final decision, the agency found that appellant lacked qualifying
experience for the GS-475 positions. It further determined that
appellant's prior experience as a teacher also did not qualify her for
the positions cited.
Based upon a review of the record in this case, the Commission agrees
with the agency that appellant was not qualified for the GS-475 positions
identified in her claim. While appellant indicated in her claim that
she performed loan processing duties and financial advising, appellant
did not provide more specific information regarding the tasks performed.
Thus, we find that appellant failed to show that she met the general
experience requirement for an Assistant County Supervisor position.
Further, we find nothing in appellant's work experience prior to coming
to the agency that supports her claim that she qualified either for an
Assistant County Supervisor or a County Supervisor position. Therefore,
we find that the agency properly denied appellant's claim.
Gerena, EEOC Appeal No. 01986870
Appellant began working for the agency as a Clerk Typist in October
1973. She became a County Office Assistant, GS-1101-5, in April 1978,
a position which she held until becoming a Loan Assistant, GS-1165-7,
in July 1990. Appellant was promoted to a Community Loan Specialist,
GS-1165-9, position on October 1, 1995. Prior to coming to the agency,
appellant worked as a Bookkeeper/Clerk at a bank. Appellant stated
that she qualified for a GS-475 position in December 1986, based upon
her experience. Appellant listed 23 positions, including 10 GS-11 County
Supervisor positions, for which she would have applied.<2>
In its final decision, the agency acknowledged that appellant met the
general experience requirement for a GS-475 position in April 1981,
and qualified for a GS-475-11 position on May 18, 1993. The agency
denied appellant's claim, however, ruling that the individuals selected
for the Assistant County Supervisor positions were better qualified.
The agency further noted that other class claimants who were more
qualified were awarded several of the positions identified by appellant.
Finally, the agency determined that appellant was not qualified for
GS-11 County Supervisor positions filled in December 1986, June 1990,
February 1991, September 1991, January 1992, June 1992, and July 1992,
and that additional temporary County Supervisor positions were not filled
due to a hiring freeze.
The Commission agrees with the agency that appellant was not qualified for
the GS-11 County Supervisor positions cited in her claim. Specifically,
appellant has not shown that she had one year of specialized experience
at the GS-9 level prior to the positions being filled. Appellant was
not promoted to the GS-9 level until May 1992.
Nevertheless, with regard to the Assistant County Supervisor positions,
the Commission finds that appellant's claim requires additional fact
finding, as set forth in the decision in Mitchell. Specifically,
appellant presented sufficient evidence to support her claim so as to
shift the burden to the agency to prove by clear and convincing evidence
that she is not entitled to relief. The Commission notes that the record
includes copies of SF-171s for a number of individuals who applied for
Assistant County Supervisor positions. The agency, however, failed to
submit any evidence, such as Notification of Personnel Action forms,
showing who was actually selected for the positions cited by appellant.
The Commission also questions whether all of the individuals were more
qualified than appellant. Accordingly, the agency's decision to deny
appellant's claim regarding Assistant County Supervisor positions filled
in August 1987, November 1987, April 1988, September 1988, May 1990,
and July 1990 is VACATED, and those allegations are referred for further
fact finding.
Marrero, EEOC Appeal No. 01986918
In June 1982, appellant began working for the agency as a Clerk Typist.
She became a County Office Clerk in October 1987, and a County Program
Technician in January 1995. Appellant also worked on a family farm.
Appellant stated that she received a Bachelors Degree in 1982, however,
it is unclear in what field it was awarded. Appellant stated that she
worked on closing emergency loans, and was appointed an Instructor in
1990 to train Assistant County Supervisors. Appellant stated that she
qualified for a GS-475 position in August 1987 based upon her experience.
Appellant stated that she would have applied for 8 Assistant County
Supervisor, GS-475-5, positions from August 1987 through December 1991.
In its final decision, the agency acknowledged that appellant met
the general experience requirement for a GS-475 position in 1976.
Nevertheless, the agency denied appellant's claim on the grounds that
the individuals selected for the positions were better qualified.
The agency also noted that several positions had been awarded to other
class claimants.
A review of the record in this case reveals that appellant's claim
requires additional fact finding, as set forth in Mitchell. Although the
record includes copies of several SF-171s for persons who applied for
Assistant County Supervisor positions, the agency failed to present
any evidence showing which individuals were selected for the positions
cited in appellant's claim. Further, the Commission questions whether
all of the individuals were more qualified than appellant. Accordingly,
the agency's decision to deny appellant's claim for relief is VACATED,
and the claim is hereby referred for further fact finding.
CONCLUSION
The agency's decisions to dismiss the claims for relief identified in
EEOC Appeal Nos. 01986803 and 01986806 are hereby AFFIRMED. The agency's
decisions to dismiss the claims for relief identified in EEOC Appeal
Nos. 01986870 and 01986918 are VACATED, and those claims are hereby
referred for further fact finding and proceedings in accordance with
this decision and the Order set forth below.
ORDER
This matter is hereby referred to the Office of Federal Operations for
further fact finding under the following procedures:
1. The Commission shall provide a copy of this decision to the agency,
appellant, and the Complaint Adjudication Division (CAD), Office of
Federal Operations.
2. The Commission shall request that CAD appoint neutral fact finders
who will be tasked with determining individual class member entitlement
to relief.
3. Under procedures that CAD will implement, appellant shall have an
opportunity to present evidence in support of her entitlement to relief
and the agency may present evidence in opposition thereto. Where there is
a genuine issue of material fact and where the issues have been carefully
narrowed and identified through a pre-hearing conference, hearings may
be held in individual cases as to entitlement. The decision whether
to hold a hearing is to be determined by the assigned fact finder at
his/her sole discretion.
4. At the conclusion of the fact finding process for individual cases,
the fact finder shall issue recommended findings of facts, copies of
which shall be provided the parties and the Commission.
5. Upon its receipt of the recommended findings of facts, the Commission
shall assign each case a new EEOC Appeal number, provide the agency
and appropriate class member with notice of its receipt of the fact
finder's recommendation, and inform the agency and class member that
they have sixty (60) calendar days from their receipt of notice from
the Commission to submit statements either in support of or opposition
to the fact finders' recommendations.
The Commission thereafter shall issue a decision under 29 C.F.R. �
1614.405. Inasmuch as the Commission, through CAD and appointed fact
finders, will be participating in the referral of these appeals, the
agency shall be excused from the obligation of filing compliance reports
at this stage of the proceedings.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION
Appellants Gerena and Marrero
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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.
Appellants Santana-Ramos and Hernandez
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 6, 1999
DATE Carlton Hadden, Acting Director
Office of Federal Operations
1The agency failed to submit postal return receipts or other evidence that
would show when appellants received the final agency decisions;
accordingly, the appeals are deemed to be timely.
2While appellant also stated that she would have applied for a GS-1165
Loan Specialist position, that position was not subject to the old
positive education requirement.