Dharma I. Aldahondo, )

Equal Employment Opportunity CommissionApr 24, 2000
01986860 (E.E.O.C. Apr. 24, 2000)

01986860

04-24-2000

Dharma I. Aldahondo, )


Dharma I. Aldahondo v. Department of Agriculture

01986860

April 24, 2000

Dharma I. Aldahondo, )

Claimant, ) Appeal No. 01986860

) Agency No. 870807

v. )

)

Daniel Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

____________________________________)

DECISION

Claimant initiated an appeal to the Equal Employment Opportunity

Commission (the Commission) from a final decision of the agency concerning

her claim 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.<1> The Commission finds the appeal

timely (see 29 C.F.R. �1614.402)a)), and accepts it in accordance with

the provisions of 64 Fed.Reg. 37,644, 37,659 (1999) (to be codified at

29 C.F.R. �1614.405).<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.

Claimant began working for the agency as a Clerk Typist in August 1989.

She became an Office Automation Clerk, GS-326, in December 1992, a

position which she held until becoming a County Program Technician,

GS-1101-5, in February 1995. Claimant earned a Bachelors degree in

Secretarial Science in 1981. Claimant stated that she qualified for a

GS-475 position in May 1990, based upon her experience. Claimant listed

19 positions, including 14 GS-11/12 County Supervisor and Farmers Program

Specialist positions, for which she would have applied from 1990 through

1993.<3>

In its final decision, the agency found that claimant lacked the

qualifying experience for the GS-475 positions cited in her claim.

The agency further determined that claimant's degree did not meet the

education standards, as Secretarial Science was not a qualifying area

of study.

The Commission agrees with the agency that claimant was not qualified

for the GS-475 positions she identified in her claim. Claimant worked

for the agency in clerical positions until February 1995. Thus, she did

not have the requisite general experience for a GS-475 position until

after that time. Further, claimant was not qualified for the GS-11/12

County Supervisor and Farmer Program Specialist positions, as she did

not show that she had one year of specialized experience at the GS-9

level prior to the positions being filled. Accordingly, the agency's

decision to dismiss the claim for relief herein is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

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).

CLAIMANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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. 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. If you

file a request to reconsider and also file a civil action, 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:

___04-24-00_______ __________________________________

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 claimant, claimant's representative

(if applicable), and the agency on:

_________________________ __________________________

Date

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 a postal return receipt or other evidence

that would show when the claimant received the final agency decision;

accordingly, the appeal is deemed to be timely.

3While claimant also stated that she also would have applied for a Loan

Specialist, GS-1165, position, such positions were not subject to the

old positive education requirement.