01A10429
06-25-2002
Sharlet M. (Yamazaki) Greer, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Sharlet M. (Yamazaki) Greer v. Department of Agriculture
01A10429
June 25, 2002
.
Sharlet M. (Yamazaki) Greer,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A10429
Agency No. 870807
Hearing No. 380-A0-8076X
DECISION
Pursuant to a Commission Order,<1> the Commission docketed the instant
appeal upon the completion of the fact finding procedure set forth
therein. The fact finding procedure was ordered 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 an
October 10, 1993 settlement agreement 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 30 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 1996 the claimant submitted a claim under the settlement agreement.
She graduated from high school in 1976, and earned some college credits.
Prior to starting at FmHA in November 1982, the claimant worked in
various clerical positions. Her first job at FmHA was County Office
Clerk, GS-1101-3. According to her claim, at an unspecified date she
was promoted to County Office Technician, GS-1101-4, and she was later
promoted to County Program Assistant, GS-322-5, at an unspecified date.
While the claimant did not specify dates, there is a handwritten notation
on her claim, apparently by her, that she was upgraded between 1984
and 1985. She resigned in December 1990. In describing her duties in
her claim at FmHA, the claimant combined her three jobs and treated them
as one. She wrote that she counseled borrowers, made preliminary loan
eligibility determinations, engaged in loan closing, loan servicing,
and property management, and performed office management duties.
The claimant also identified various jobs she believed she was denied
as a result of the old positive education requirement.
In April 1998, the agency issued a final decision denying the claimant's
claim. It found that the claimant failed to establish that she met the
revised qualification standards for a GS-475 position. In making this
finding, the agency observed that the claimant treated her three FmHA
positions as one, making no differentiation of responsibilities by grade.
It further found that going by the job titles, series, and grades she
listed, the claimant did not have qualifying experience under the revised
qualification standards. In her appeal to the Commission, the claimant
stated that she had a differentiation of responsibilities by grade.
She argued that her actual experience qualified her under the revised
qualification standards for a GS-475 position.
Previously, 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 a 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 was not entitled to relief. See also Mitchell, et
al. v. Department of Agriculture, EEOC Petition No. 04970021 (December 4,
1997), which clarified Mitchell above.
On appeal, the Commission found that the claimant did not meet the revised
qualification standards for a GS-475 job at the GS-9 and 11 levels,
and that it was unclear whether she met these standards for GS-6/7/9/11
Assistant County Supervisor jobs she claimed were available at her
Eugene, Oregon office from 1985 to 1990.<4> Yamazaki v. Department of
Agriculture, et al., EEOC Appeal No. 01985299 et al. (December 29, 1998).
Yamazaki observed that while the claimant asserted that she performed
property management functions and processed loans, it was unclear when
she performed such duties and for what length of time. Yamazaki remanded
the claimant's claim for additional fact finding, setting forth fact
finding procedures modeled after the ones established in Mitchell.
On remand, the claimant reiterated her property management duties without
indicating when they were performed. She also stated that she processed
home loans from start to finish, albeit she did not state when she did so.
The claimant stated that pursuant to a nationwide classification appeal
that took some three years, she was upgraded to the GS-322 series based on
the technical functions she performed. She revised and elaborated upon
her statement about the three Assistant County Supervisor vacancies that
opened in Eugene, Oregon. She stated that they were at the 5/6/7 level,
opened between 1986 and 1990, and identified the selectees (Selectees 1,
2 and 3). The claimant indicated that she resigned before Selectee 3
was chosen.
The fact finder found that the claimant was a GS-3 for six months in 1982,
a GS-4 for three years until 1985, and thereafter a GS-5. There was no
record evidence which established these specific dates. The fact finder
found that based on the claimant's actual work experience, she qualified
for the three Eugene Oregon Assistant County Supervisor positions she
identified at the GS-7 level, and the first one opened as early as
November 17, 1986. There was no record evidence which established the
latter date.
In accordance with the procedures set forth in Yamazaki, the claimant's
claim was automatically docketed as the instant appeal. On appeal, the
parties do not make any comments on the merits of the claimant's claim.
The record in the case of another class claimant who resides in Oregon
contains personnel FmHA Oregon directories which covered the period of
October 1, 1986 through March 24, 1989.<5> They were frequently updated.
The directories indicate that the claimant was a County Office Clerk
at least until December 1987, and became a County Program Assistant by
January 1988. They indicate that Selectee 1 was already an Assistant
County Supervisor in Eugene, Oregon by October 1, 1986, before the period
covered by the class action settlement agreement. Finally, they indicate
that Selectee 2 became an Assistant County Supervisor in Eugene, Oregon
sometime between August 3, 1988 and October 11, 1988.
ANALYSIS AND FINDINGS
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.
The referenced personnel directories indicate that the claimant was a
County Office Clerk until at least December 1987, and became a County
Program Assistant by January 1988. In her claim the claimant stated
that between these two jobs, she was a County Office Technician, GS-4.
While the directories do not categorize the claimant as such, this could
be explained by the position being a subcategory of the County Office
Clerk job. This is consistent with her claim, where she mentioned being
upgraded between 1984 and 1985. The claimant wrote in her claim that
she later became a County Program Assistant, GS-322-5. The directories
indicate that she did not become a County Program Assistant until
January 1988.
On remand, the claimant indicated without contradiction that she
performed the duties of a County Program Assistant, GS-322 for some
three years prior to being converted to this position. In her claim,
the claimant indicated that her duties included counseling borrowers and
making pre-eligibility determinations. Given the claimant's statements,
it is more likely than not that these duties were performed at the GS-5
level beginning in January 1985, and at the GS-4 level at an unspecified
date in 1984. At the GS-4 and 5 levels, these duties fulfill the revised
general experience qualification requirements for GS-475-5 positions.
Accordingly, we find that the claimant met the revised general experience
qualification standards for GS-475-5 work by January 1988.
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> None of the experience the claimant
described met the specialized experience standard. Accordingly,
the claimant did not meet the revised qualification standards for a
GS-475-7 position.
As previously noted, the claimant stated that had she been qualified,
she would have applied for the Assistant County Supervisor vacancy in
Eugene Oregon which was filled by Selectee 2. The agency does not
contest the claimant's statement that this vacancy was available at
the GS-5 level.<8> The record contains no information on Selectee 2's
qualifications. Accordingly, the agency has failed to show, by clear and
convincing evidence, that the claimant was not entitled to this position.
The referenced directories show that the above vacancy was filled
sometime between August 3, 1988 and October 11, 1988. After the claimant
specifically pointed to this vacancy, the agency did not indicate that
it made any effort to identify when it was filled, even though it was in
a better position to do so than the claimant. Accordingly, the claimant
is entitled to back pay and other benefits she would have earned had she
been placed therein on August 3, 1988, and worked until her resignation
in December 1990.
As the claimant is a prevailing party, she may apply for attorney fees
and costs as instructed below.
CONCLUSION
The agency's final decision denying the claimant class action settlement
relief is reversed, and the claimant is entitled to the relief ordered
below.
ORDER
(1) The agency shall change the claimant's official personnel file to
reflect placement into the position of Assistant County Supervisor,
GS-475-5, located in Eugene, Oregon, or a substantially equivalent
position, effective August 3, 1988, within 30 calendar days after this
decision becomes final. The claimant is entitled, but not limited
to, back pay, all career ladder promotions, grade and step increases,
cost of living adjustments, etc., and attendant increases in benefits
including, but not limited to, annual and sick leave, health benefits,
and retirement and Thrift Savings Plan adjustments and contributions,
etc. (but not interest)<9> under 29 C.F.R. �1614.501 which she would
have received had she been placed effective August 3, 1988 and worked
through her resignation in December 1990. The claimant shall cooperate
in the agency's efforts to make the above calculations, and provide all
necessary information the agency requests to help it comply.
(2) The issue of attorney's fees and costs is remanded to the agency.
If the claimant is seeking attorney fees and costs she shall, through
counsel, submit a request for attorney's fees and costs in accordance
with the Attorney's Fees paragraph set forth below. No later than 60
days after the agency's receipt of the attorney's fees statement and
supporting affidavit, the agency shall issue a final agency decision
addressing the issues of attorney's fees and costs. The agency shall
submit a copy of the final decision to the Compliance Officer at the
address set forth below.
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 that the
ordered changes to the claimant's records have occurred, and 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
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 (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 25, 2002
__________________
Date
1See Yamazaki v. Department of Agriculture, et al., EEOC Appeal
No. 01985299 et al. (December 29, 1998).
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 organizational titles for jobs in the
GS-475 series included District Director, Assistant District Director,
County Supervisor, and Assistant County Supervisor.
4The claimant also identified other positions. Yamazaki found, as
applicable, that these positions were not covered by the class action
settlement agreement or that the claimant was not qualified for them
under the revised qualification standards.
5Priscilla Gray v. Department of Agriculture, EEOC Appeal No. 01A20197.
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 responding to questions about agricultural
loans, and 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.
8Although the claimant recalled that the Assistant County Supervisor
positions had career ladder levels of GS-5/6/7 levels, the Commission
finds that more likely than not they had levels of GS-5/7/9. This was
revealed by a review of the files in multiple claims in this class action.
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).