01985299
12-29-1998
Appellants, )
Sharlet M. Yamazaki, Linda B. Malcolm v. Department of Agriculture
01985299
December 29, 1998
Sharlet M. Yamazaki, )
Linda B. Malcolm, )
Appellants, )
) Appeal Nos. 01985299
v. ) 01985501
) Agency No. 870807
Daniel Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Appellants initiated appeals to the Equal Employment Opportunity
Commission (the Commission) from final decisions of the agency concerning
their claims for relief as a class member of the class certified in Byrd
v. Department of Agriculture, EEOC Hearing No. 250-90-8171X, according to
the terms of an October 10, 1993 settlement agreement between the class
representative and the agency. The Commission finds the appeals timely
(see 29 C.F.R. �1614.402(a)), and accepts them in accordance with the
provisions of EEOC Order No. 960, as amended.<1>
On July 7, 1997, the Commission issued a decision in Mitchell, et
al. v. Department of Agriculture, EEOC Appeal No. 01960816, et al.
In that decision, the Commission briefly noted the history of the Byrd
litigation and more fully discussed the settlement agreement between the
class and the agency that resolved the liability portion of the matter.
The decision further addressed in detail the burdens of proof applicable
in the remedy phase of a class action where the parties incorporated
Commission regulation 29 C.F.R. �1614.204(l)(3) into their settlement
agreement. The Commission finds that the decision in Mitchell is
applicable to this case and we incorporate by reference that decision
herein.
The settlement agreement required the Office of Personnel Management,
which was a party to the underlying Byrd action, to revise the individual
qualification standard applicable to positions in the Agriculture
Management Series, GS-475. Prior to the revisions, candidates for
GS-475 positions had to meet strict educational requirements. Under the
revised qualification standard, a candidate may qualify by meeting
an educational requirement, by meeting an experience requirement, or
through a combination of education and experience. The qualification
standard sets forth the general and specific experience requirements
candidates for GS-475 positions must possess. It also lists the courses
a candidate must have taken in order to meet the educational requirement
for consideration for a GS-475 position.
Yamazaki, EEOC Appeal No. 01985299
Appellant worked for the agency from November 1982 until December 1990,
during which time, she held the positions of County Office Clerk,
GS-1101-3, County Office Technician, GS-1101-4, and County Program
Assistant, GS-322-5. Prior to coming to the agency, appellant worked
primarily in various clerical positions. Appellant also completed some
college courses, but did not earn a degree. Appellant stated that
she qualified for a GS-475 position in October 1986, based upon her
experience at the agency and her education. Appellant stated that there
were two GS-475-11 County Supervisor and three GS-475-6/7/9/11 Assistant
County Supervisor positions open in her office from 1985 until 1990.<2>
Appellant included vacancy announcements for various GS-475-9 Assistant
County Supervisor, and GS-475-11/12 County Supervisor positions.
In its final decision, the agency found that appellant lacked qualifying
experience for the GS-475 positions. It further determined that
appellant's college courses, together with her experience also did not
qualify her for the positions cited. It is from this decision that
appellant now appeals.
Based upon a review of the record in this case, the Commission finds that
appellant's claim requires additional fact finding, as set forth in the
decision in Mitchell. As stated, under the revised GS-475 qualification
standard, an individual must have three years of general experience,
one of which is at the GS-4 level, performing specified functions,
in order to qualify for a GS-475-5 position, and an additional
year, at the GS-5 level, in order to qualify for a GS-7 position.
The Commission agrees with the agency that appellant did not qualify
for the GS-9 Assistant County Supervisor and GS-11 County Supervisor
positions cited. Nevertheless, it is unclear whether she had the
requisite specialized experience to qualify for the Assistant County
Supervisor, GS-6/7/9/11, positions she stated were available from 1985
through 1990. Appellant asserted that she performed the duties of a
property management technician, and processed loans; nevertheless, it is
unclear when appellant performed such duties and for what length of time.
Accordingly, the agency's decision to deny appellant's claim for relief
is VACATED, and the claim is hereby referred for further fact finding
and proceedings in accordance with the Order set forth below.
Malcolm, EEOC Appeal No. 01985501
Appellant began working for the agency as a County Office Assistant,
GS-1101-5, in March 1980. Appellant was promoted to a County Program
Technician, GS-1101-6, position in July 1986, and in August 1988,
was accepted into an upward mobility program for GS-475 positions.
Appellant became an Assistant County Supervisor, GS-475-9, in 1990.
Appellant also operated a dairy farm from 1972 until 1974. Appellant
stated that she qualified for a GS-475 position in 1984, and assumed
Assistant County Supervisor duties in 1985. Appellant stated that, if
she had received the position at that time, she would have applied for
an Assistant County Supervisor position in August 1987, a GS-9 Assistant
County Supervisor position in September 1988, and a County Supervisor,
GS-11, position in July 1989. Appellant also referred to an Assistant
County Supervisor, GS-475-5, vacancy in May 1989 in Oneota, New York.
In its final decision, the agency found that appellant was entitled
to retroactive placement into the Assistant County Supervisor, GS-5,
position in Oneota, New York, effective May 1989. The agency noted
that appellant was more qualified for the position than the individual
selected. The agency denied appellant's claim with regard to the
remaining positions cited, stating that appellant did not meet the
specialized experience requirements. It is from this decision that
appellant now appeals. On appeal, appellant asserted that there was an
additional GS-5 Assistant County Supervisor position available in June
1988, as well as a GS-7 level position in April 1988.
Based upon a review of the record in this case, the Commission finds that
appellant's claim also requires additional fact finding, as set forth in
the decision in Mitchell. Appellant cited two Assistant County Supervisor
positions which were advertised in 1988. It appears from the record that
appellant would have met the requirements for GS-475 positions at that
time. Accordingly, appellant's claim is hereby referred for further fact
finding and proceedings in accordance with the Order set forth below.
ORDER
This matter is hereby referred to the Office of Federal Operations for
further fact finding under the following procedures:
1. The Commission shall provide a copy of this decision to the agency,
appellant, and the Complaint Adjudication Division (CAD), Office of
Federal Operations.
2. The Commission shall request that CAD appoint neutral fact finders
who will be tasked with determining individual class member entitlement
to relief.
3. Under procedures that CAD will implement, appellant shall have an
opportunity to present evidence in support of her entitlement to relief
and the agency may present evidence in opposition thereto. Where there is
a genuine issue of material fact and where the issues have been carefully
narrowed and identified through a pre-hearing conference, hearings may
be held in individual cases as to entitlement. The decision whether
to hold a hearing is to be determined by the assigned fact finder at
his/her sole discretion.
4. At the conclusion of the fact finding process for individual cases,
the fact finder shall issue recommended findings of facts, copies of
which shall be provided the parties and the Commission.
5. Upon its receipt of the recommended findings of facts, the Commission
shall assign each case a new EEOC Appeal number, provide the agency
and appropriate class member with notice of its receipt of the fact
finder's recommendation, and inform the agency and class member that
they have sixty (60) calendar days from their receipt of notice from
the Commission to submit statements either in support of or opposition
to the fact finders' recommendations.
The Commission thereafter shall issue a decision under 29 C.F.R. �
1614.405. Inasmuch as the Commission, through CAD and appointed fact
finders, will be participating in the referral of these appeals, the
agency shall be excused from the obligation of filing compliance reports
at this stage of the proceedings.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
DEC 29, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The agency failed to submit postal return receipts or other evidence that
would show when appellants received the final agency decisions;
accordingly, the appeals are deemed to be timely.
2While appellant also stated that she was nonselected for a GS-1165-5/6/7
position in 1990, and a Loan Technician, GS-1101, position in 1986, such
positions were not subjected to the old positive education requirement.