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.