01996714
06-01-2001
Agency.
Vicki J. Hall v. Department of Agriculture
01996714
June 1, 2001
.
Vicki J. Hall,
Claimant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01996714
Agency No. 870807
Hearing No. 320-99-8031X
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.
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 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.
In March 1995, the claimant submitted a claim under the settlement
agreement. It showed that she received a Bachelor of Science
degree in General Home Economics and Early Childhood Education in
1973. The claimant's first job with FmHA was in 1978 as a Business
Services/Administrative Clerk, GS-301-5, in Casper, Wyoming. She stopped
working in 1980, and returned to FmHA in 1983 as a County Office Clerk,
GS-322-3, in Langdon, North Dakota. The claimant was promoted in July
1983 to the position of County Office Assistant, GS-1101-5, in Minot,
North Dakota, where she worked with the rural housing loan program.
She left FmHA in December 1991. In July 1992 the claimant got a
promotion by taking a job with the Social Security Agency as a Service
Representative, GS-6, in Minot, North Dakota. She was promoted to a
GS-7 in July 1993, and to a GS-8 in July 1994.
In an application for federal employment completed in 1988, the claimant
described the duties of her County Office Assistant, GS-1101-5 position,
her last job with FmHA. They included advising prospective borrowers
of loan eligibility requirements and application procedures, gathering
information for and preparing loan closing documents, reviewing loan
applications for completeness, and determining loan payment credits,
interest, and other charges. In a statement protesting her appraisal
rating in 1990, the claimant wrote that she prepared voluntary
conveyance forms, on the computer processed operating loans and
rescheduled/amortized loans, and talked to delinquent borrowers about
house payments. The claimant added in her claim that she did monthly,
quarterly, and semiannual reports on loan programs, and assisted the
county office with its 30 rural housing inventory properties, i.e.,
developed a tracking sheet for steps in acquiring a property, ordered
certificates of title and appraisals, and processed payment vouchers
for taxes, attorney fees, and other fees, and so forth.
In her application for federal employment, the claimant's description of
her other GS-5 job with FmHA made no reference to loan work. However,
in her claim the claimant wrote that the job entailed work in all program
areas, and suggested this included loan work.
The claimant averred that she met the revised qualification standards
for a GS-475-7 position by October 12, 1986, and would have received a
promotion to GS-475-9 a year later. She claimed that after working two
years as a GS-9, she would have applied for a GS-475-11 job. The claimant
stated that she was mobile, and pointed to specific GS-475 jobs in North
Dakota for which she would have applied had she previously met the old
positive education qualification standard. The claimant stated that
she was entitled to back pay and benefits, and conceded this liability
ceased after she left the agency in December 1991.
The agency issued a decision in April 1996 on the claimant's claim.
It determined that the claimant met the revised GS-475 experience
qualification standard by July 1986. While not explicitly stating so,
this referred to the general experience qualification standard that
applied to GS-475-5 jobs.<4> However, the agency denied the claimant's
claim. It found that the claimant would not have been selected for two
positions she identified, i.e., Assistant County Supervisor, GS-475,
filled in Cavalier, North Dakota in October 1987 and a GS-475 job in
filled in Minot, North Dakota in May 1989. It reasoned that the selectee
(same individual--Selectee 1) was better qualified. The parties did
not identify the grade levels of these positions.
The claimant filed an appeal with the Commission. She argued that she
did not have an adequate opportunity to identify positions for which
she would have qualified prior to filing her claim, and only received
this additional information from the agency after she filed her claim.
She submitted the additional information on appeal.
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 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 the claimant was not entitled to relief. 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 the claimant's case, and referred
it to the fact finding.
The claimant's claim was referred to an EEOC AJ for fact finding. The AJ
invited the claimant to submit any additional information on her claim,
but she did not do so.
The AJ then issued a recommended decision on the claim. The AJ concurred
with the agency's admission that the claimant qualified under the new
GS-475 qualification standards, and found that she would have applied for
GS-475 positions at various grade levels during the relevant period had
she been previously qualified. The AJ found that the claimant admitted
that Selectee 1 was more qualified than her for the job filled in October
1987, and hence this selection was not at issue.
Referring to a list of Assistant County Supervisor jobs filled in North
Dakota which the claimant obtained from the agency, the AJ found that the
claimant was entitled to back pay and benefits under the Byrd/Mitchell
procedure commencing on March 16, 1987. The agency filled the position
of Assistant County Supervisor, GS-475-7, in Rugby, North Dakota, on
March 16, 1987.
In accordance with the procedures set forth in Mitchell, et al
v. Department of Agriculture, EEOC Appeal No. 01960816 (July 3, 1997),
the claimant's claim was automatically docketed as the instant appeal.
On appeal, the claimant makes no comment. The agency argues that the
claimant did not possess specialized experience, and hence was not
qualified for the GS-475-7 position. Under the revised qualification
experience standards, a claimant qualifies for a GS-475-5 position if she
has three years of general experience, 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>
While the agency found in its final decision that the claimant met
the revised qualification experience standard, this meant generalized
experience, not specialized experience. The claimant's descriptions
of work she performed does not meet the revised specialized experience
qualification standard. Accordingly, the recommended relief of the AJ
is not sustained.
Referring to the same list as the AJ, the agency argues that the claimant
should receive back pay for the position of Assistant County Supervisor,
GS-475-5, filled in Hillsboro, North Dakota on March 12, 1989. While it
is listed as a temporary position, the agency states the claimant should
be provided back pay for the �GS-475-5/7/9 position� until she resigned
in December 1991.
In the course of the class action litigation, the agency responded to
EEOC interrogatories. One response included certificates 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. There is no indication in the record that the claimant
was provided with a copy of certificates of eligibility for vacancies in
North Dakota. While the AJ sent the claimant generalized information
that obliquely referred to certificates by their paper form number, there
is no indication in the record that the claimant was aware that there
were certificates that documented additional vacancies in North Dakota.
In fact, the claimant's writings suggest that she believed the agency
gave her all documentation of relevant vacancies it had in North Dakota
after she filed her claim. Accordingly, the Commission will consider
these certificates.
A review of the certificates reveals that on September 6, 1988,
FmHA issued a request for eligible candidates to fill the position
of Agricultural Management Specialist, GS-475-5 in Minnewaukan,
North Dakota. Assistant County Supervisors are often referred to as
Agricultural Management Specialists. The certificate (#WA-AG-03-8-0205)
was returned by October 6, 1988. The action taken on the certificate
cannot be discerned by reading the photocopy of the certificate provided
by the agency. Minnewaukan is closer to the claimant's home than the
position which the agency identifies. The agency has not shown by clear
and convincing evidence that the claimant would not have been placed
in the Minnewaukan position. Accordingly, the claimant is entitled to
back pay and other benefits she would have received had she been placed
in this position on October 6, 1988.
As stated, the agency has the burden of showing, by clear and convincing
evidence, that the claimant would not have received an entry level
GS-475 position. If the agency fails to meet its burden, the claimant
is thereafter entitled to receive all step increases and career ladder
promotions. In this case, however, the claimant asserted that she
is also entitled to a competitive promotion within the GS-475 series
beyond an entry level position. 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 the 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.
The record suggests that the Agricultural Management Specialist position
for which the claimant is entitled to receive back pay and benefits had
a career ladder to GS-9. Most of the other North Dakota certificates
for Agricultural Management Specialist, GS-475-5, specified that they
had promotion potential to GS-9.
The claimant does not identify any GS-475-11 positions to which she
would have been competitively promoted, and none appear in the request
for eligible documents for North Dakota. The claimant has not shown by
a preponderance of the evidence that she would have received subsequent
competitive promotions.
CONCLUSION
The 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 Minnewaukan, North Dakota on October 6, 1988.
This liability ceases to accrue after the claimant resigned in December
1991.<6> The claimant is not entitled to interest on back pay.<7>
ORDER
(1) The agency shall issue a check to the claimant for the appropriate
amount of back pay and other benefits, including appropriate within-grade
increases and career ladder promotions (but not interest) under 29
C.F.R. �1614.501 which the claimant would have received had she been
placed in the position of Agricultural Management Specialist, GS-475-5 in
Minnewaukan, North Dakota on October 6, 1988. This liability ceases to
accrue after the date the claimant resigned in December 1991. The agency
shall complete these actions no later than 90 calendar days of the date
this decision becomes final. The 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.
(2) If there is a dispute about the amount of back pay or other benefits
due, the agency shall issue a check to the claimant for the undisputed
amount within 90 calendar days of the date this decision becomes final.
The 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."
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 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 (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
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 (M0900)
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 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
June 1, 2001
__________________
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.
4This can be deduced because the agency found that the claimant met the
new standard in July 1986, three years after she started working as a
County Office Assistant, GS-1101-5. The revised experience qualification
standard for GS-475-5 positions is three years of general experience.
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.
6Under the class action settlement, the claimant's entitlement to back pay
and benefits only accrues up to the time she resigned from the agency.
Mitchell et al. v. Department of Agriculture, EEOC Appeal No. 01960816,
notes 11, 12, 17, and 30 (July 3, 1997).
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).