01986898_01986969
10-27-2000
Isabel R. Rodriguez, )
Isabel Santiago, )
Isabel R. Rodriguez, )
Zenaida R. Davila, ) Appeal Nos. 01986898
Appellants, ) 01986969
) 01986970
v. ) 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 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. 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.
Santiago, EEOC Appeal No. 01986898
Appellant worked for the agency as a County Office Clerk, GS-1101-3/4,
from November 1968 through August 1984, after which time she was promoted
to the position of County Office Assistant, GS-1101-5, a position she
held until her retirement in July 1992. Appellant stated that she was
capable of performing in a higher-level position, but was never given
an opportunity for development. Appellant asserted that changes to the
GS-475 series positions should have been made sooner, because she was
performing those duties.
In its final decision, the agency found that while appellant met the
general experience requirement under the revised qualification standards,
she did not identify any positions which she applied or would have
applied for. Thus, the agency dismissed her claim for relief.
The Commission finds that the agency properly denied appellant's claim.
Specifically, we find that appellant simply failed to make a sufficient
showing to establish a possible entitlement to relief. As we noted in
Mitchell at page 19:
the settlement agreement and the applicable Commission regulation [that
the parties incorporated in the agreement], 29 C.F.R. �1614.204(l)(3),
require submission of a claim that presents a �specific, detailed showing�
that the individual is a class member and that a personnel action or
matter affected the class member that was caused by the discriminatory
policy or practice at issue.
In her claim, appellant noted only that she was denied the opportunity
to perform in higher-level positions. She never identified a position
for which she would have applied but for the old positive education
requirement. Appellant likewise did not offer any information regarding
specific positions which she was denied.
Rodriguez, EEOC Appeal No. 01986969
Appellant began working for the agency as a Clerk Typist, GS-0322-3, in
May 1986. Appellant received a promotion to the GS-4 level in July 1990.
Appellant became a County Program Technician, GS-1101-5, in January 1995,
and was working as a Community Development Technician, GS-1101-5, at the
time she filed her claim. Prior to coming to the agency, appellant worked
as a Clerk Typist and a Secretary. Appellant stated that she qualified
for a GS-475 position in 1990, and would have applied for three Assistant
County Supervisor, GS-475-5, positions filled during that year.
In its final decision, the agency found that appellant did not meet
the new GS-475 qualification standard during the complaint period which
ended August 7, 1994. Specifically, the agency stated that appellant's
clerical positions were not sufficient to meet the general experience
requirement, and that her degree in Secretarial Services did not meet
the education requirement.
The Commission agrees with the agency that appellant was not qualified
for the GS-475 positions she identified in her claim. Appellant worked
for the agency in a clerical position until January 1995. Thus, she
did not have the requisite general experience for a GS-475 position
until after that time. Although appellant asserted, generally, that she
assisted GS-475 employees in their duties, appellant offered no specific
information regarding the functions she performed or the length of time
during which she did so.
Davila, EEOC Appeal No. 01986970
Appellant worked for the agency as a Clerk Typist, GS-0322-3/4, from May
1982 through February 1995, at which time she received a promotion to
the position of County Program Assistant, GS-1101-5. Appellant stated
that she performed various financial counseling and farm program related
duties from 1982 through 1994, and was detailed to other offices to assist
with farm program cases. Appellant also noted that she worked with her
grandfather to raise a tobacco crop in 1970 and 1971, performing different
labor jobs on a 5 acre farm devoted to small crops. Appellant stated that
she qualified for a GS-475 position by January 1987. Appellant cited
25 GS-475-5/7 Assistant County Supervisor positions for which she would
have applied from 1987 through 1992, as well as 13 GS-475-11/12 County
Supervisor positions, one GS-475-12 Farmer Program Specialist position,
and two GS-475-12/13 District Director positions.
In its final decision, the agency found that appellant lacked the
qualifying experience for the GS-475 positions cited in her claim.
It further determined that appellant's experience on a family farm did
not qualify her for the positions.
Based upon a review of the record in this case, the Commission agrees with
the agency that appellant was not qualified for the GS-475 positions she
identified in her claim. While appellant indicated in her claim that she
performed financial counseling and farm program related duties, appellant
did not provide more specific information regarding the tasks performed.
Thus, we find that appellant failed to show that she met the general
experience requirement for an Assistant County Supervisor or County
Supervisor position. Further, we find appellant's experience working on
a family farm in 1970 and 1971 insufficient to meet the 3-year general
experience requirement. Therefore, we find that the agency properly
denied appellant's claim.
CONCLUSION
The agency's decisions to dismiss the claims for relief identified in
EEOC Appeal Nos. 01986898, 01986969, and 01986970 are hereby AFFIRMED.
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 (S0993)
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. 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 (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:
10-27-00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The 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.