01995492
06-01-2001
Agency.
Kathryn B. Magnusen v. Department of Agriculture
01995492
June 1, 2001
.
Kathryn B. Magnusen,
Claimant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01995492
Agency No. 870807
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.<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 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 graduated from high school in May 1972,
and has earned six college credits. From the 1970s to the 1990s the
claimant owned and operated a small farm. Her first job with FmHA
was in 1977 as a County Office Clerk, GS-322-3. The claimant was
promoted in late1977 to County Office Clerk, GS-322-4, and to County
Office Assistant, GS-1101-5 in 1978. She was promoted in 1985 to
County Program Technician, GS-1101-6, and to District Loan Technician,
GS-7 in 1988. She was reassigned to County Loan Technician, GS-11101-7
in 1992. All these jobs were in Harrison County in Gulfport, Mississippi.
In February 1994 the claimant was reassigned to County Loan Technician,
GS-1101-7 in Pearl River County in Poplarville, Mississippi. At some
point she became County Development Loan Technician, GS-1101-7, and was
still in this position in 1999.
In her claim the claimant wrote that the agency Human Resources office
in Mississippi did not permit people without college degrees to apply
for GS-475 positions, that positions were not announced, and that all
people were hired off registers of eligibles.
The agency issued a decision in November 1995 on the claimant's claim.
It determined that the claimant met the revised GS-475 general experience
qualification standard by October 12, 1986, but denied her claim.
It reasoned that the claimant did not identify any positions for which
she would have applied had she been qualified.
The claimant filed an appeal with the Commission. She submitted a list
of employees who were hired into the GS-475 series with enter on duty
dates ranging from July 1985 to March 1994. The claimant highlighted
positions encumbered by names who she stated were hired from national
hiring registers.
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, including the claimant's,
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).
The claimant's claim was referred to an EEOC fact finder in the
Birmingham District Office in Alabama. Meanwhile, in February 1998
the agency responded to interrogatories by the EEOC, Office of Federal
Operations, Complaints Adjudication Division (CAD). In response to
one interrogatory the agency enclosed certificates created pursuant to
requests by field offices' for eligible candidates to fill positions.
The certificates were created by the agency's FmHA's Special Examining
Unit, Personnel Division. At some point the claimant received a copy
of some or all of the Mississippi certificates from the agency.
In a letter to the claimant in December 1998, the fact finder asked for
any information on her qualifications for GS-475 positions under the
revised standards, as well as any GS-475 positions to which she may have
sought had she been qualified.
The claimant responded that she would have applied for several or all the
Mississippi jobs on the list she previously submitted. She expressed
preference for one of these positions which was filled on November 8,
1987 and located in Pearl River County, Mississippi, which she stated
was an Assistant County Supervisor job in Poplarville. The claimant
also identified 38 Agricultural Management Specialist, GS-475 slots
filled between August 1988 and September 1991 from the Mississippi
certificates. Most were filled at the GS-5 and 7 levels, and explicitly
had a full performance level of GS-9. The claimant suggested that
these were Assistant County Supervisor jobs, which is consistent with
their GS level. The claimant expressed a specific preference for two
Mississippi certificate jobs filled in December 1988 and September 1991.
She contended that slots for the Assistant County Supervisor position
were filled in Poplarville repeatedly after November 1988.
The fact finder then notified the parties stating that the fact gathering
process was over, and invited statements in support of their position.
The claimant responded that people who moved into GS-475 positions have
received subsequent promotions to as high as the GS-13 level.
In June 1999 the fact finder issued recommended findings of fact that the
claimant identified specific positions for which she would have applied,
and hence she was a member of the class.
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.
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. It is
uncontested that the claimant met this general experience standard by
October 12, 1986. 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, and qualifies at the
GS-9 level if she has one year of specialized experience equivalent to
at least GS-7.<5>
We find that the claimant had one year of specialized experience at
the GS-5 level by October 12, 1986. Specifically, she operated and
owned a small farm from the 1970s to the 1990s. Further, with her
March 1995 claim, the claimant submitted a photocopy of her 1995
application for federal employment. It indicated that as a County
Program Technician, GS-1101-6, from September 1985 to March 1986,
she made loan eligibility recommendations. We find that by the end of
January 1989, the claimant gained one year of specialized experience at
the GS-7 level. Specifically, the claimant wrote in her application that
as a District Loan Specialist, GS-GS-1101-7 from January 31, 1988 to May
1992, she assisted in the review of the market survey to determine the
feasibility of the loan. Further, the claimant submitted a statement
from her Interim County Supervisor from 1987 to 1988 that the claimant
acted as his Assistant County Supervisor during that time.
The earliest vacancy for which the claimant expressed a preference was
Assistant County Supervisor, GS-475, which was filled on November 8,
1987 and was located in Pearl River County Mississippi in Poplarville.
The Mississippi certificates show that the agency usually filled the
Agricultural Management Specialist jobs in Mississippi at the GS-5
and GS-7 levels, and they usually had a promotion potential to GS-9.
The preponderance of the evidence indicates that these were the same
position. Under the revised qualification standards, when this position
was filled the claimant was qualified at the GS-475-7 grade.
The agency has not shown by clear and convincing evidence that the
claimant would not have been placed in the above position. Accordingly,
she is entitled to be remedied, as ordered below.
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 argues that she is also
entitled to subsequent competitive promotions. 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. The claimant
has failed to meet this burden.
As the claimant is a prevailing party, she may apply for attorney fees
and costs as instructed below.
CONCLUSION
The claimant is entitled to be offered the position of Agricultural
Management Specialist (Assistant County Supervisor), GS-475-7, in Pearl
River County Mississippi in Poplarville, or a substantially equivalent
position, retroactive to November 8, 1987.
ORDER
(1) The agency shall offer the claimant placement into the position
of Agricultural Management Specialist (Assistant County Supervisor),
GS-475-7, in Pearl River County Mississippi in Poplarville, or a
substantially equivalent position, within 30 calendar days after this
decision becomes final. It shall make the offer retroactive to November
8, 1987.
(2) The agency shall issue a check to the claimant for the appropriate
amount of back pay and other benefits, and provide appropriate
within-grade increases and career ladder promotions (but not interest)<6>
under 29 C.F.R. �1614.501 which the claimant would have received had
she been selected for the position of Agricultural Management Specialist
(Assistant County Supervisor), GS-475-7, in Pearl River County Mississippi
in Poplarville, or a substantially equivalent position, effective
November 8, 1987. The agency is liable for back pay until such time as
the claimant is placed as above, or declines an offer to be so placed.
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.
(3) 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 a letter offering the claimant a
position as outlined above, and 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.
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 included determining whether applications for loans meet
established eligibility criteria.
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).