Brunilda J. Torres, Olga C. Vargas, Manuela Morales, Maria Miranda-Garcia, Complainants,v.Daniel Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionDec 10, 2000
01986971_01987049 (E.E.O.C. Dec. 10, 2000)

01986971_01987049

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, ) 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.