Isabel R. Rodriguez, )

Equal Employment Opportunity CommissionOct 27, 2000
01986898_01986969 (E.E.O.C. Oct. 27, 2000)

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.