Agency.

Equal Employment Opportunity CommissionFeb 13, 2002
01A02830 (E.E.O.C. Feb. 13, 2002)

01A02830

02-13-2002

Agency.


Rita M. Baird v. Department of Agriculture

01A02830

February 13, 2002

.

Rita M. Baird,

Claimant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A02830

Agency No. 870807

Hearing No. 240-99-5010X

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.

INTRODUCTION

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. In addition, Office of Personnel Management (OPM) was

added 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 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.

BACKGROUND

A claim for individual relief was filed with the agency by claimant on

March 27, 1995. Claimant asserts that she was adversely affected by

the positive education requirement in the following ways:

she was promoted to the GS-475 series at grade level 9 (GS-475-9) on

December 16, 1990, whereas under the revised qualification standard,

she would have received promotion to the GS-475-9 level on October 12,

1986; and

since she would have received promotion to the GS-475-9 level on October

12, 1986, she is entitled to subsequent promotion to the GS-475-11 with

career ladder increase to GS-475-12 (GS-475-11/12) on November 1, 1986.

In support of her claim, claimant provided general information about her

employment background and education. Claimant worked for the agency

since August 25, 1975. She was a County Office Clerk from August 25,

1975, until August19, 1977; an Emergency Loan Clerk, from December 17,

1981, until May 16, 1982; a County Office Assistant from May 16, 1982,

until January 5, 1985; a GS-1165 Loan Assistant from January 5, 1986,

until December 15, 1990; and a GS-475 Assistant County Supervisor from

December 15, 1990, until the filing of this claim. In addition to her

work for the agency, claimant worked from October 1976, until December

1993, as the co-owner and operator of a 100-acre grain farm; and from

August 1977 to June 1979, as the office manager of an agribusiness.

The record reveals that during the time period of May 10, 1987 through

May 7, 1989, claimant earned twenty-one credit hours in agriculture

from the Indiana/Purdue University. The record also reveals that

claimant earned nine credit hours in agriculture from Texas Technical

University. Effective September 1, 1990, claimant earned sufficient

agriculture-related credits to qualify for a GS-475 position under the

positive education requirement.

The claim was submitted to the agency. The agency agreed that claimant

was qualified for a GS-475-9 position under the revised standard on

October 12, 1986. However, the agency ultimately denied the claim,

asserting the following argument:

The claimant has cited three GS-475-11, County Supervisor positions which

she believes she would have received, but for the old qualification

standards. When these positions were filled (June and December 1987,

and May 1988), the claimant was a GS-1165-7. She had not spent one

year at the GS-475-9 level (or in a comparable series) and her farm

experience and managerial experience in an agribusiness provided

sufficient specialized experience to qualify her for only a GS-475-9

position even with the new qualification standards of the GS-475 series.

Since the claimant was not qualified for these positions, she does not

demonstrate an adverse affect and her claim is not awarded.

Final Agency Decision at 2.

The claim, once rejected by the agency, was referred to a neutral

fact-finder, who was tasked with determining claimant's entitlement

to relief, and, thereafter, issuing recommended findings of fact.

The fact-finder concluded that claimant was entitled to a GS-475-9

position, retroactive to October 12, 1986, with retroactive promotion to

a GS-475-11 position on November 1, 1987. It is from the fact-finder's

recommended decision that the instant appeal was automatically docketed.

ANALYSIS AND FINDINGS

To establish entitlement to individual relief, claimant must show that

she is a member of the class and was affected by the positive education

requirement. The burden of proof then shifts to the agency to show by

clear and convincing evidence that the claimant is not entitled to relief.

Mitchell, et al. v. Department of Agriculture, EEOC Petition No. 04970021

(December 4, 1997) (Mitchell II).

In this case, claimant has established that she is a class member and

that she was adversely affected by the positive education requirement.

Specifically, claimant has established that she worked for the agency

throughout the relevant period, October 12, 1986, through August 7,

1994; she did not qualify for a GS-475 position under the old standard,

but would have qualified under the new standard; and that she was deterred

from applying for such positions because of the existence of the positive

education requirement.<4> The agency concedes that claimant worked for

the agency throughout the relevant period and that claimant would have

qualified, under the revised qualification standard, for a GS-475-9

position on October 12, 1986.

Claimant asserted, and the fact-finder agreed, that the agency would have

created a GS-475-9, Assistant County Supervisor, position for claimant

at the agency's Auburn, Indiana County Office on October 12, 1986.

We agree. Pursuant to an agreement between the agency and claimant on

November 20, 1985, the agency agreed to promote claimant to the GS-475-9,

Auburn, Indiana position once she qualified under the positive education

standard.<5> Since, under the revised standard, claimant would have

qualified for the Auburn position on October 12, 1986, we conclude

that claimant is entitled to the Auburn position as of that date.

Under the revised qualification standard, claimant would have received

promotion to GS-475-9 on October 12, 1986, long before her December 16,

1990, promotion under the positive education qualification standard.

Accordingly, we find that claimant has met her burden of establishing

that she was adversely affected.

The burden is now on the agency to prove by clear and convincing evidence

that claimant is not entitled to the GS-475-9, Assistant County Supervisor

position, in the agency's Auburn, Indiana County Office as of October

12, 1986. The agency has not met its burden. The final decision and

agency statement on appeal fail to respond to claimant's entitlement to

the GS-475-9, Assistant County Supervisor position in Auburn, Indiana.

We now turn to claimant's assertion that she is entitled to a competitive

promotion within the GS-475 series beyond the GS-9 level. The Commission

has been reluctant to assume that an individual, absent a discriminatory

act, would have subsequently received a competitive promotion.

See Ritchie v. USPS, EEOC Request No. 05980501 (February 11, 1999),

citing Ramirez v. USPS, EEOC Petition No. 04950024 (February 8, 1996).

Nevertheless, given the facts of this case and the underlying settlement

agreement provisions, we find that claimant can overcome the speculative

nature of the nonselection by showing, by a preponderance of the evidence,

that she would have received the position in question.

We agree with the fact-finder that claimant has established, by a

preponderance of the evidence, that she was entitled to promotion to the

GS-475-11/12 County Supervisor position in the agency's Warsaw, Indiana

County Office retroactive to December 1987. The record reveals that

after one year as a GS-475-9, claimant would qualify for a GS-475-11/12

position. The record further reveals that the agency issued a vacancy

announcement for a GS-475-11/12 County Supervisor position in the

agency's Warsaw, Indiana County Office sometime between November 1987,

and December 1987.<6> The agency objects to claimant's entitlement to the

GS-475-11/12 position in Warsaw, Indiana, on the ground that claimant was

merely a GS-7 at the time the Warsaw, Indiana position became available

in November, 1987. When determining claimant's entitlement to promotion

to the GS-475-11 level, the agency should have considered the claimant

in the position she would have been in under the revised standard.

Since claimant would have been promoted to the GS-475-9 Assistant County

Supervisor position in Auburn, Indiana on October 12, 1986, she would

have qualified for promotion to the GS-475-11 level on October 12, 1987.

Therefore, we find that claimant is entitled to the GS-475-11/12 position

in Warsaw, Indiana effective December 1, 1987.

CONCLUSION

The claimant is entitled to the back pay and other benefits she would

have received had she been placed in the position of GS-475-9 Assistant

County Supervisor, in the agency's Auburn, Indiana County Office on

October 12, 1986, with all career-ladder promotions including promotion

to the GS-475-11/12, County Supervisor position in Warsaw, Indiana

effective December 1987, as outlined in the order below.<7> We have

previously interpreted the terms of the settlement agreement as limiting

a claimant's entitlement to relief to the date she became qualified

under the old standard. Mitchell, n. 18 (July 3, 1997). Consequently,

the agency's liability, ceases effective September 1, 1990, because on

that date, claimant qualified under the positive education requirement

for a GS-475 position. Accordingly, claimant's entitlement to relief

is limited to the period between October 12, 1986 and September 1, 1990.

ORDER

The agency is ordered to award claimant the following relief:

(1) The agency shall retroactively award claimant a GS-475-12, County

Supervisor position, or substantially equivalent position in the agency's

Warsaw, Indiana office or in an agency office within claimant's commuting

distance.

(2) The agency shall issue a check to claimant for the appropriate

amount of back pay and other benefits such as appropriate within-grade

increases and career-ladder promotions under 29 C.F.R. �1614.501 which

claimant would have received had she been placed in the GS-475-9 position,

in the agency's Auburn, Indiana County Office on October 12, 1986, and

promoted to GS-475-11/12, County Supervisor position in Warsaw, Indiana

on December 1, 1987, except that the agency's liability shall cease to

accrue on September 1, 1990. 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 (K0501)

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) (1994 & Supp. IV 1999). 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 (M0701)

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).

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

February 13, 2002

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.

4 Under the revised qualification experience standards, a claimant

qualifies at the GS-475 series position, at pay grade 9 (GS-475-9)

if she has one year of specialized experience equivalent to at least

the GS-475-7 grade. A review of claimant's experience, as detailed in

her claim for individual relief, reveals that claimant met the revised

qualification standard for a GS-475-9 position, through her specialized

experience on October 12, 1986, because by October 12, 1986, claimant

possessed nine years of experience as the co-owner and operator of

both, a 100-acre grain farm, and 200 rented acres in Waterloo, Indiana.

In addition, by October 12, 1986, claimant possessed three years of

experience as an office manager of an agribusiness in Ashley, Indiana.

5 The record establishes that the agency reached a unique agreement

with claimant on November 20, 1985, under the provisions of the Upward

Mobility Program. The agreement provided that if claimant obtained the

qualification requirements for a GS-475 position, she would be promoted

to her �target position,� GS-475-9, Assistant County Supervisor, in

the agency's Auburn, Indiana County Office. Under the terms of the

agreement, claimant was ultimately promoted to her target position on

December 16, 1990.

6 The agency reports that the Warsaw, Indiana position became available

in December 1987, not November 1987, as suggested by the fact-finder.

7The 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).