01986971
12-10-2000
Brunilda J. Torres, Olga C. Vargas, Manuela Morales, Maria Miranda-Garcia, Complainants, v. Daniel Glickman, Secretary, Department of Agriculture, Agency.
Brunilda J. Torres, Olga C. Vargas, Manuela Morales, Maria
Miranda-Garcia v. Department of Agriculture
01986971
December 10, 2000
Brunilda J. Torres, )
Olga C. Vargas, )
Manuela Morales, ) Appeal Nos. 01986971
Maria Miranda-Garcia, ) 01987049
Complainants, ) 01990372
) 01990586
v. ) Agency No. 870807
)
Daniel Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
The complainants initiated appeals to the Equal Employment Opportunity
Commission (the Commission) from final decisions of the agency concerning
their claims for relief as class members 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.<1> 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.<2>
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.
Torres, EEOC Appeal No. 01986971
The agency denied the complainant's claim, stating that she did not
meet the educational or experience requirement for a GS-475 position
during the complaint period. By letter dated October 14, 1998,
the Commission's Office of Federal Operations notified the agency of
its obligation to submit a copy of the complaint file within 30 days.
A number of additional requests were made to the agency telephonically;
however, the agency failed to comply. Given the agency's failure to
submit a copy of the complaint file, the Commission, pursuant to 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.404(c)), will refer the claim for additional fact
finding, as set forth in Mitchell.
Vargas, EEOC Appeal No. 01987049
In May 1974, the complainant began working for the agency as a temporary
Emergency Clerk, GS-322-2, a position she held until being selected for a
County Office Clerk, GS-322-2, position in February 1975. The complainant
was promoted to the position of County Office Assistant, GS-1101-5,
in August 1976, and was selected for a Loan Assistant, GS-1165-5/7,
in February 1989. At the time she filed her claim, the complainant had
been working as a Loan Specialist since October 1989, and at the GS-9
level since May 1991. The complainant noted that she trained GS-475
employees while serving as a County Office Assistant. The complainant
asserted that she qualified for a GS-475 position in January 1987.
She listed 10 Assistant County Supervisor, GS-475-5/7, positions, and 9
GS-475-11/12 County Supervisor and Farmer Program Specialist positions
for which she would have applied.
In its final decision, the agency acknowledged that the complainant met
the general experience requirement for a GS-475 position in October 1980.
The agency denied the complainant's claim, however, ruling that the
individuals selected for the Assistant County Supervisor positions were
better qualified. The agency further noted that other class claimants
who were more qualified were awarded two of the positions cited, and that
six of the positions were never filled. Finally, the agency determined
that the complainant was not qualified for the County Supervisor positions
filled prior to May 1992, and that the individual selected for the Farmers
Program Specialist position filled in June 1992 was more qualified.
Based upon a review of the record in this case, the Commission agrees
with the agency that the complainant was not qualified for the County
Supervisor positions filled prior to May 1992. Specifically, the
complainant has not shown that she had one year of specialized experience
at the GS-9 level prior to that time. The complainant was not promoted
to the GS-9 level until May 1991. In addition, the record shows that
two of the Assistant County Supervisor positions were awarded to other
class claimants with demonstrated specialized experience.
With regard to the remaining six Assistant County Supervisor positions,
and the Farmers Program Specialist position, however, the Commission
finds that the complainant's claim requires additional fact finding,
as set forth in the decision in Mitchell. Specifically, the claimant
presented sufficient evidence to support her claim so as to shift the
burden to the agency to prove by clear and convincing evidence that
she is not entitled to relief. The Commission notes that the record
includes copies of SF-171s for a number of individuals who applied for
Assistant County Supervisor and Farmers Program Specialist positions.
The agency, however, failed to submit any evidence, such as Notification
of Personnel Action forms, showing who was actually selected for the
positions cited by the complainant. The Commission also questions
whether all of the individuals were more qualified than the complainant.
Accordingly, the agency's decision to deny the complainant's claim
regarding Assistant County Supervisor positions filled in April 1988,
June 1988 (two positions), September 1988, November 1988, and March 1990,
as well as the Farmers Program Specialist position filled in June 1992,
is VACATED, and those matters are referred for further fact finding.
Morales, EEOC Appeal No. 01990372
The complainant worked for the agency as a County Office Assistant,
GS-1101-5, from 1974 until her retirement in November 1994. The
complainant noted that she performed financial counseling, closed loans,
advised borrowers, and trained individuals hired for GS-475 positions.
The complainant stated that she qualified for a GS-475 position in
October 1986, based upon her experience. The complainant listed 24
Assistant County Supervisor, GS-475-5/7, positions, and one Farmer
Program Specialist, GS-475-12, position for which she would have applied.
In its final decision, the agency acknowledged that the complainant
met the general experience requirement for a GS-475 position in 1977;
however, the agency denied the complainant's claim with regard to 14 of
the positions cited on the grounds that the individuals selected for the
positions were better qualified. The agency also noted that two of the
positions were awarded to class claimants who were more qualified than
the complainant. The agency stated that the complainant was not qualified
for the GS-12 Farmer Program Specialist position. Finally, the agency
noted that 10 of the positions cited by complainant were not filled.
The Commission agrees with the agency that the complainant was not
qualified for the Farmer Program Specialist position or the two GS-7
level Assistant County Supervisor positions, because she did not show
that she had the requisite specialized experience. Further, a review of
the record reveals that the agency correctly determined that other class
claimants were more qualified for two of the Assistant County Supervisor
positions based upon their specialized experience owning and operating
family farms.
Nevertheless, with regard to the remaining 10 Assistant County Supervisor
positions, the Commission finds that the complainant's claim requires
additional fact finding, as set forth in the decision in Mitchell.
Although the record includes copies of SF-171s for a number of individuals
who applied for Assistant County Supervisor positions, the agency failed
to present any evidence showing which individuals were selected for the
positions cited in the complainant's claim. Further, the Commission
questions whether all of the individuals were more qualified than the
complainant. Accordingly, the agency's decision to deny the complainant's
claim regarding Assistant County Supervisor positions filled in April
1988, June 1988 (two positions), September 1988, November 1988, March
1989, July 1989, May 1990 (two positions), and July 1990 is VACATED,
and those matters are referred for further fact finding.
Miranda-Garcia, EEOC Appeal No. 01990586
The complainant worked for the agency as a Loan Assistant , GS-1165-5,
from July 1983 until October 1990, at which time she was selected for a
Loan Specialist, GS-1165-9, position. The complainant occupied the latter
position at the time she filed her claim. The complainant also noted
that she had a degree in education, taught math and science, and grew up
on a farm. The complainant listed 10 GS-475-11/12 County Supervisor and
Farmers Program Specialist positions for which she would have applied.
In its final decision, the agency acknowledged that the complainant met
the general experience requirement for GS-475 positions by October 1986.
Nevertheless, the agency denied the complainant's claim on the grounds
that the complainant did not meet the specialized experience requirement,
and the individuals selected for the positions were better qualified.
The agency also noted that one of the positions was awarded to another
class claimant, and that five of the positions were not filled.
The Commission agrees with the agency that the complainant was not
qualified for the GS-11 County Supervisor position filled in April 1991,
because she did not show that she had one year of specialized experience
at the GS-9 level at that time. Specifically, the complainant was not
promoted to the GS-9 level until October 1990. Further, the record
shows that another class claimant with more experience was awarded a
County Supervisor position filled in September 1991.
The Commission, however, finds that the remaining three GS-475-11/12
positions require additional fact finding, as set forth in Mitchell.
Although the record includes copies of several SF-171s for persons who
applied for County Supervisor and Farmers Program Specialist positions,
the agency failed to present any evidence showing which individuals
were selected for the positions cited in the complainant's claim.
Further, the Commission questions whether all of the individuals were
more qualified than the complainant. Accordingly, the agency's decision
to deny the complainant's claim regarding County Supervisor positions
filled in February 1992 and August 1992, and a Farmers Program Specialist
position filled in July 1992 is VACATED, and those matters are referred
for further fact finding.
CONCLUSION
The agency's decision to dismiss the claims for relief identified in EEOC
Appeal Nos. 01986971, 01987049, 01990372, and 01990586 are hereby VACATED,
and the claims are referred for further fact finding and proceedings in
accordance with this decision and 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,
complainant, 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, complainant 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 64 Fed.Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 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 (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant 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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
12-10-00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
_________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The agency failed to submit postal return receipts or other evidence
that would show when the complainants received the final agency decisions;
accordingly, the appeals are deemed to be timely.