01A00474
06-01-2001
Agency.
D. Christine Jordan v. Department of Agriculture
01A00474
June 1, 2001
.
D. Christine Jordan,
Claimant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A00474
Agency No. 870807
Hearing No. 110-99-8014X
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 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 claimant is entitled to relief.
The history of the underlying class action is well-documented, and for
the most part will not be recounted here.<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
(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. 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.
On March 27, 1995, claimant submitted a claim under the settlement
agreement. Claimant asserted that she met the revised qualification
standards for a GS-475-5 position at the time she commenced employment
at the agency on November 30, 1987. Claimant further asserted that she
gained qualifying experience through her previous employment and growing
up on a family farm. Prior to her work at the agency, claimant worked
as a Crop Loss Adjustment Contractor, Aerial Navigator/Photographer and
large farm Office Manager. In November 1987, claimant began her career
at the agency as a temporary State Office Clerk GS-0322-4, in the agency's
Columbia, South Carolina office. From June 1988 until August 1988,
claimant worked as a GS-0322-4, County Office Clerk. From August 1988
until August 1989, claimant worked as a GS-0322-4, State Office Clerk.
In August 1989, complainant received a promotion to GS-1102-5, State
Loan Clerk. In June 1990, complainant accepted a GS-0322-4, County Office
Clerk position. In November 1992, claimant was promoted to GS-1101-5,
County Office Assistant, in Bishopville, South Carolina.
The agency issued a final decision dated October 28, 1995 on claimant's
claim concluding that claimant did not meet the revised GS-475 experience
qualification standard until June 1993. The agency fails to provide
any indication of how it arrived at this date.
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 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 she would not have
been selected. See also Mitchell, et al. v. Department of Agriculture,
EEOC Petition No. 04970021 (December 4, 1997). In Hall v. Department of
Agriculture, EEOC Appeal No. 01964627 (November 20, 1997), the Commission
found that Mitchell, et al., EEOC Appeal No. 01960816 was applicable to
claimant's case, and referred it to the fact finding. Claimant's claim
was referred to an EEOC AJ for fact finding.
The AJ then issued a recommended decision on the claim. The AJ concluded
that claimant would have qualified for an entry-level GS-475-5 position on
November 30, 1987, when she commenced employment at the agency. The AJ
found that claimant would have been selected for a GS-475-5 position
in the Bennettsville, South Carolina on March 12, 1989. In accordance
with the procedures set forth in Mitchell, et al v. Department of
Agriculture, EEOC Appeal No. 01960816 (July 3, 1997), claimant's claim
was automatically docketed as the instant appeal.
As previously noted, the agency did not explain how it determined that
claimant became qualified for a GS-475 position in June 1993. Under the
revised qualification experience standards, a claimant qualifies for a
GS-475-5 position if she has three years of general experience,<4> one of
which must be equivalent to at least the GS-4 level. 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.<5> We find that claimant met the general experience standard
on November 30, 1987, because at that time she had over three years of
qualifying experience; namely, nine years as a secretary, bookkeeper and
office manager at B.P. Inc., a three-hundred acre farm and grain facility.
The fact finding revealed that while working at B.P. Inc. claimant kept
all farm records, accounts payable, accounts receivable, profit and loss
statements, sales records and payroll for fifty employees. Claimant was
responsible for leasing a tobacco allotment and advising her principals on
selling grain on the futures market. Claimant's professional experience
demonstrates an understanding of farm operations.
While claimant has established that she was qualified under the new
qualification standard as of November 30, 1987, the first GS-475-5
position for which claimant could have qualified for was an Agricultural
Management Specialist position that became available in Bishopville,
South Carolina on March 12, 1989.
The agency has failed to meet its burden of showing, by clear and
convincing evidence, that claimant would not have received the GS-475-5,
Agricultural Management Specialist position that became available in
Bishopville, South Carolina on March 12, 1989. Therefore, claimant is
entitled to receive all step increases and appropriate career ladder
promotions.
CONCLUSION
Claimant is entitled to the back pay and other benefits she would have
received had she been placed in the position of Agricultural Management
Specialist, GS-475-5 in Bishopville, South Carolina on March 12, 1989,
including step increases and appropriate career ladder promotions as
outlined in the order below. Claimant is not entitled to interest on
back pay.<6>
ORDER
(1) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall place claimant in the position of Agricultural
Management Specialist, GS-475-5 in Bishopville, South Carolina (or
substantially equivalent position) retroactive to March 12, 1989.
(2) The agency shall issue a check to claimant for the appropriate
amount of back pay and other benefits such as within-grade increases,
appropriate career ladder promotions, recalculation of retirement
(but not interest) under 29 C.F.R. �1614.501 which claimant would have
received had she been placed in the position of Agricultural Management
Specialist, GS-475-5 in Bishopville, South Carolina on March 12, 1989.
The agency shall complete these actions no later than 90 calendar days
of the date this decision becomes final. 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 claimant for the undisputed
amount within 90 calendar days of the date this decision becomes final.
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."
(4) 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 of
the agency's calculation of back pay and other benefits due 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 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 claimant. If the
agency does not comply with the Commission's order, claimant may petition
the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a).
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, 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 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 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).
COMPLAINANT'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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
June 1, 2001
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
__________________
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.
4General 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 are (1) responding to questions about agricultural loans
or specific agricultural practices related to soils, animal science,
pesticides and equipment, (2) determining whether applications for loans
meet established eligibility criteria, (3) establishing and maintaining
effective relationships with representatives of financial organizations,
farm associations, and farm borrowers to obtain information, (4)
experience that demonstrates an understanding of farm or ranch operations,
and (5) serving as a loan or bank assistant in a lending institution.
5Specialized 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.
6The 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).