01990613
09-21-1999
Maria M. Maldonado, )
Ruth I. Andujar, Maria M. Maldonado v. Department of Agriculture
01990613
September 21, 1999
Ruth I. Andujar, )
Maria M. Maldonado, )
Appellants, ) Appeal Nos. 01990613
) 01991326
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.
Andujar, EEOC Appeal No. 01990613
Appellant began working for the agency as a Data Transcriber in October
1986. She became a Clerk Typist, GS-322, in June 1988, a position which
she held until becoming a Loan Assistant, GS-1165-5, in January 1990.
Appellant was promoted to the position of Loan Specialist, GS-1165-9,
in May 1992, and to the position of Community Development Manager,
GS-1165-11, in October 1995. At the time she filed her claim, appellant
was working as a Rural Development Specialist. Appellant earned a
Bachelors degree in Biology in 1986. Appellant stated that she qualified
for a GS-475 position in October 1986, based upon her experience.
Appellant listed 23 positions, including 13 GS-11/12 County Supervisor
and Farmer Program Specialist and 2 GS-12 District Director positions,
for which she would have applied.<2>
In its final decision, the agency found that appellant lacked the
qualifying experience for the GS-475 positions cited in her claim.
The agency further determined that appellant's degree did not meet the
education standards, as biology was not a qualifying area of study.
Finally, the agency noted that two of the positions cited by appellant
were not filled due to a hiring freeze.
The Commission agrees with the agency that appellant was not qualified
for the GS-475 positions she identified in her claim. Specifically,
appellant did not meet the general experience requirement until after
the GS-475-5/7/9 positions cited were filled. Further, appellant was
not qualified for the GS-11/12 County Supervisor and Farmer Program
Specialist positions, or the GS-12/13 District Director 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. While appellant stated,
on appeal, that many of the biology courses she completed were similar
to courses in agriculture, appellant failed to provide any information
regarding those courses. Appellant also stated that she possessed a
degree in education which, when considered with her degree in biology
would be equivalent to a degree in agricultural education. Appellant,
however, did not mention her degree in education in her claim for relief
and did not provide any supporting documentation on appeal.
Maldonado, EEOC Appeal No. 01991326
Appellant worked for the agency as a County Office Clerk from March 1974
through 1976. It appears that appellant was, at some time, promoted to
the position of County Office Assistant, GS-1101-5. Appellant's position
was reclassified to County Loan Technician, GS-1101-6, in February 1995,
and appellant was promoted to the position of Community Development
Technician in October 1995. Appellant stated that she qualified for
GS-475 positions beginning in 1980, but did not apply for higher-level
positions because of the education requirement.
In its final decision, the agency found that appellant did not identify
any positions which she applied or would have applied for. The agency
also stated that appellant failed to provide sufficient information to
demonstrate that she met the experience or education requirements for
a GS-475 position under the new standards. 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 did not apply for 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.
CONCLUSION
The agency's decisions to dismiss the claims for relief identified in
EEOC Appeal Nos. 01990613 and 01991326 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:
Sept. 21, 1999
DATE Carlton M. Hadden
Acting Director
Office of Federal Operations
1The 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.
2While appellant also stated that she was nonselected for a Rural
Development Specialist, GS-1165-11/12, position and a Rural Development
Manager, GS-301-13, position in 1996, such positions were not subject to
the old positive education requirement and were filled after the period
covered by the underlying settlement agreement.