Lorraine Burroughs, )

Equal Employment Opportunity CommissionSep 26, 2000
01995843 (E.E.O.C. Sep. 26, 2000)

01995843

09-26-2000

Lorraine Burroughs, )


Lorraine Burroughs v. Department of Agriculture

01995843

September 26, 2000

Lorraine Burroughs, )

Claimant, ) Appeal No. 01995843

) Agency No. 870807

v. )

)

Daniel Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

____________________________________)

DECISION

Pursuant to the Commission's July 3, 1997 Order in Mitchell, et

al. v. Department of Agriculture, EEOC Appeal No. 01960816, et al., the

Commission has docketed the instant appeal upon the completion of the

fact-finding procedure set forth therein.<1> The fact-finding procedure

was established to examine claims for relief of class members certified

in Sonia Byrd v. Department of Agriculture, EEOC Hearing No. 250-90-8171X,

in accordance with the terms of an October 10, 1993, settlement agreement

between the class representative and the agency. For the reasons that

follow, we find that the claimant is not entitled to relief.

The history of the underlying class action is well-documented in prior

Commission decisions.<2>

Briefly, the class agent filed a formal EEO class complaint against the

agency on August 7, 1987, alleging that the qualification requirements for

positions in the GS-475 series of the agency's Farmers Home Administration

(FmHA) discriminated against women.<3> The class action challenged

the requirement that persons seeking GS-475 positions possess either

a degree in agriculture or have completed thirty semester hours of

agriculture-related course work. Although an administrative judge

recommended the certification of the class, the agency rejected

that recommendation. The Commission subsequently reversed the

agency's decision and found that the class met the requirements for

certification. Byrd v. Department of Agriculture, EEOC Appeal No. 01890012

(December 11, 1989). Pursuant to a request for reconsideration filed by

the agency, the Commission upheld the class certification and expanded

the class by excluding only those female FmHA employees who qualified

for GS-475 positions under the old standard prior to October 12, 1986.

The decision also added the Office of Personnel Management (OPM) as a

party to the complaint. Byrd v. Department of Agriculture, EEOC Request

No. 05900291 (May 30, 1990).

On October 10, 1993, the parties entered into a settlement agreement

that provided, in pertinent part, that OPM would revise the qualification

standards for GS-475 positions in order to permit an individual to qualify

through education only, experience only, or a combination of the two.<4>

The agreement further provided:

[The agency] will institute an individual claim system, pursuant to 29

C.F.R. � 1614.204(l)(3), for class members to make claims for individual

relief if they believe that they were affected by the positive education

requirement for the GS-475 series any time during the period from October

12, 1986, to the effective date of the revised standard .... Potential

relief for individual class members will be limited to those class members

who would have been qualified for positions in the GS-475 series under

the revised standard any time [between October 12, 1986 and August 7,

1994]. Potential relief for individual class members will be limited to

that relief that would have been available under Title VII of the Civil

Rights Act of 1964, as amended, prior to the Civil Rights Act of 1991,

and will not include compensatory or punitive damages...

On March 23, 1995, the claimant submitted a claim under the settlement

agreement maintaining that she qualified for a GS-475 position. In a

final decision dated October 28,1995, the agency found that the claimant

had not identified any specific GS-475 positions she applied for or that

she would have applied for had she been deemed qualified. Based on that

finding, the agency denied the claimant relief. The claimant thereafter

filed an appeal with the Commission.

On July 3, 1997, the Commission issued the aforementioned decision

in Mitchell. In that decision, the Commission determined that many

of the claims the agency had previously rejected, including the

claimant's, required reconsideration using a fact-finding procedure

that was established. Specifically, the claims were referred to neutral

fact-finders, who were tasked with determining individual class members'

entitlement to relief, and, thereafter, issuing recommended findings

of fact. The Commission also addressed the burdens of proof applicable

in the remedy phase of a class action. In that regard, the Commission

determined that, where the claimant shows that she was a member of the

class and was affected by the positive education requirement, the burden

of proof shifts to the agency to show, by clear and convincing evidence,

that the claimant is not entitled to relief. See also Mitchell, et

al. v. Department of Agriculture, EEOC Petition No. 04970021 (December

4, 1997). The claimant's appeal was one of 65 remanded for fact-finding

and her case was thereafter referred to an administrative judge (AJ).

By letter dated November 4, 1998, the AJ informed the parties of the

process and procedures that would be used to conduct the fact-finding,

which included allowing the claimant to supplement the record with

evidence that supported her claim for relief. The record reveals,

however, that the claimant did not make any submissions. The AJ

thereafter issued a decision dated July 1, 1999, in which she concluded

that the claimant had not established an entitlement to relief. The AJ

initially found that claimant had not identified any GS-475 positions

for which she had applied between October 12, 1986, and August 7, 1994.

The AJ found further that, although the claimant was asked to identify

a position(s) she would have applied for during that period, she never

identified such a position.

After a careful review of the record, the Commission agrees with the

AJ and finds that the claimant has not identified a GS-475 position she

applied for or for which she would have applied had she been qualified

under the prior standards. Although the claimant was asked to identify

such a position(s), she merely stated that the former qualification

standards �precluded [her] from applying for at least one or more jobs in

the Farmers Program section of the National Office which were then filled

by field personnel who did not have my extensive experience working in

the National Office.� Because the claimant failed to identify an actual

position, we find that she has not established an entitlement to relief.

CONCLUSION

The claimant is not entitled to the relief that she has requested.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

__09-26-00________________

Date

01 On 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.

02 See, e.g., Byrd v. Department of Agriculture, EEOC Appeal

No. 01890012 (December 11, 1989), reconsideration granted, Byrd

v. Department of Agriculture, EEOC Request No. 05900291 (May 30, 1990);

Byrd v. Department of Agriculture & Office of Personnel Management,

EEOC Appeal No. 01913964 (March 17, 1992).

03 As stated in Mitchell, the primary occupational titles for jobs in

the GS-475 series included District Director, Assistant District Director,

County Supervisor, and Assistant County Supervisor.

04 With respect to the education requirement, the qualification

standard provides:

Major study - farm, livestock, or ranch management; agricultural

economics; agricultural management; agricultural education; agricultural

engineering; agricultural resources management; general agriculture,

agronomy, or crop science; animal, dairy, or poultry husbandry;

non-ornamental horticulture; business; finance; financial management;

business management; economics; accounting; or other field related to

the position to be filled.

With respect to the general experience requirement, the

qualification standard provides:

Experience that provides an understanding of the fundamental principles

and techniques of agricultural management, and the principles and

practices of credit and finance.