)

Equal Employment Opportunity CommissionSep 18, 2000
01993485 (E.E.O.C. Sep. 18, 2000)

01993485

09-18-2000

)


Paula D. Sears v. Department of Agriculture

01993485

September 18, 2000

Paula D. Sears, )

Claimant, )

)

)

) Appeal No. 01993485

Daniel Glickman, ) Agency No. 870807

Secretary, )

Department of Agriculture, )

Agency. )

______________________________)

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.<2>

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 not entitled

to relief.

The history of the underlying class action is well-documented in prior

Commission decisions, and for the most part will not be recounted here.<3>

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.<4> 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. An Administrative Judge (AJ) 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. The agreement

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 April 1995, the claimant submitted a claim under the settlement

agreement maintaining that she qualified for the GS-475 series based on

her experience. The agency agreed that the claimant met the general

experience requirement for a 475 position as of October 12, 1986, and

this is supported by the record. The claimant wrote in her claim that

up to the age of 21, she worked on her family farm, where, among other

things, she assisted with the sale of animals and crops, and accompanied

her father to the bank to get and pay-off loans. She began working for

the agency in Cambridge, Illinois as a Clerk, GS-3 in 1976. By August

1985 she worked her way up in the agency to the job of Program Review

Assistant, GS-1101-6/7, in Albuquerque, New Mexico. She relocated

there to take the promotion. In August 1986 the claimant received a

career ladder promotion to GS-7. She was promoted to the position of

Contract Specialist/Program Manager, GS-1102-7/9/11 in January 1989.

The claimant received a career-ladder promotions to GS-9 in March 1990

and GS-11 in May 1991.

The claimant wrote in her claim that she would have applied for an

Assistant County Supervisor, GS-475 in Cambridge, Illinois that was

filled in May or June 1983, but was told by agency officials that she did

not meet its education requirement. She averred the job was vacant from

1981 to 1983, during which time she often picked up some of its workload.

The claimant continued that she did not apply for other GS-475 openings

because she would be rejected for not meeting the education requirements.

She averred that she was adversely affected from Spring 1983 forward

because she was denied the opportunity for advancement into vacancies in

the 475 series. The claimant stated that she was willing to relocate

to enhance her career, like she did by moving to New Mexico in 1985.

As relief, the claimant asked for back pay, interest thereon, related

benefits, and $5,000 in compensatory damages.

The agency initially issued a decision on October 28, 1995, dismissing

the claim. It reasoned that the claimant alleged the only position she

was denied as a result of the education requirement was filled in 1983,

which was outside of the claim period.

The claimant filed an appeal with the Commission. She reiterated

that she was continuously impacted by the GS-475 series education

requirement. Like many other class claimants, the claimant noted that her

efforts to identify relevant GS-475 position vacancies were stymied by an

inability to obtain pertinent information from the agency. Nevertheless,

after getting the agency's dismissal letter, she researched vacancies

using other sources, and identified seven of them on appeal. Further,

the claimant wrote that GS-475 positions were announced nationwide

monthly, and there was a continuous OPM register for GS-475 Assistant

County Supervisor positions.

On July 3, 1997, the Commission issued the decision in Mitchell. The

Commission determined that many of the claims that the agency previously

rejected, including that of the claimant, required reconsideration using

a fact finding procedure that was established. 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 addressed

the burdens of proof applicable in the remedy phase of a class action.

In that regard, the Commission 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 it had legitimate reasons for

the adverse action at issue. 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 Investigator (fact

finder) with the Albuquerque District Office. The EEOC, Office of

Federal Operations forwarded to that office the claimant's appeal file,

including the agency's response to EEOC interrogatories. One response

included over 750 pages of certificates of eligibility relative to GS-475

positions that became available in different field locations from May 1988

to August 1994. The certificates were created by the agency's FmHA's

Special Examining Unit, Personnel Division, in response to requests by

field offices' for eligible candidates to fill positions. Rather than

forward all 750 pages, the EEOC, Office of Federal Operations provided

the Albuquerque District Office the certificates located in New Mexico.

They identified the positions and the eligible candidates, and in most

cases the selectee and date of the selection. The fact finder provided

a copy of this interrogatory package to the claimant.

The fact finder gave the claimant a uniform set of questions drafted

by the EEOC for use in the fact finding process. In response to one

question, the claimant recounted the seven GS-475 series positions she

previously identified on appeal. In response to the question of whether

she would have applied for any of the positions on the certificates

of eligibles provided by the agency, the claimant wrote she would have

applied for any of them, as evidenced by her relocation in 1985 to enhance

her career. She asked for vacancy announcements, list of all applicants

and certificates for eligibles for jobs during relevant periods in four

locations. One location was Bernalillo, New Mexico, one was Raton,

New Mexico,<5> one was Maquoketa, Iowa, and one was Cambridge, Illinois.

No response was provided to this request.<6>

Six of seven specific GS-475 positions listed by the claimant were County

Supervisor jobs. The first was located in Illinois and the rest in

New Mexico. The seventh was a Farmer Program Specialist. The positions

were advertised, vacant or filled between the Fall of 1986 to March 1989.

Where the claimant provided the most detailed information, it revealed

the positions were at the GS-11 or 12 levels. The fact finder found

they were all at least at the GS-11/12 level, and the claimant does not

contest this on appeal.

After discussing the seven specific jobs the claimant listed, the

fact finder recommended that the claimant was not entitled to relief.

Her claim was then forwarded to the Commission for appeal docketing and

adjudication.

We agree with the conclusion of the fact finder. GS-475 positions at the

GS-7,9,11 and 12 and above levels have no general experience requirement.

But at the GS-7, 9 and 11 levels they have a specialized experience

requirement of one year equivalent to at least, respectively, a GS-5, 7,

and 9; and at the GS-12 and above a specialized experience requirement

of one year equivalent to at least the next lower grade level.<7> The

claimant was not a GS-9 until March 1990, and the record does not show

she performed any work for one year which was equivalent to at least the

GS-9 level prior to this time. Accordingly, the claimant did not meet the

qualification requirements of the seven specific GS-475 jobs she raised

during the time they were open, i.e., the Fall of 1986 to March 1989.

CONCLUSION

The claimant is not entitled to the relief that she has requested.

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:

September 18, 2000

______________ __________________________________

DATE Frances M. Hart

Executive Officer

Executive Secretariat

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:

_________________________ __________________________

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). The claimant's former surname was Muller-Jones.

2On 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.

3See, 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).

4As 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.

5None of the certificates of eligibles previously referred to for the

state of New Mexico included jobs located in Bernalillo and Raton.

6The Commission has reviewed the certificates of eligibility for the

states of Illinois and Iowa that were generated by the FmHA's Special

Examining Unit, Personnel Division and were submitted by the agency to

the Commission in response to an interrogatory. Taking into account the

timing of the complainant's career progression and the levels at which

the jobs were solicited and their identified promotion potentials, the

record does not show the complainant would have received greater pay.

7The specialized 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.