01986872
12-22-2000
Medelicia Velazquez-Ortiz v. Department of Agriculture 01986872 12-22-00 .Medelicia Velazquez-Ortiz, Complainant, v. Daniel Glickman, Secretary, Department of Agriculture, Agency.
Medelicia Velazquez-Ortiz v. Department of Agriculture
01986872
12-22-00
.Medelicia Velazquez-Ortiz,
Complainant,
v.
Daniel Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01986872
Agency No. 870807
DECISION
Complainant initiated an appeal to the Equal Employment Opportunity
Commission (the Commission) from a final decision of the agency
concerning her claim for relief as a member 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.<1> The Commission
finds the appeal timely (see 29 C.F.R. �1614.402)a)), and accepts it
in accordance with in accordance with 64 Fed.Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. �1614.405).<2>
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.
Complainant began working for the agency as a County Office Clerk,
GS-322-3, in November 1977. She became a County Office Assistant,
GS-322-4, in October 1979, a position she held until being selected for a
Community Development Technician, GS-1101-6, position in February 1995.
Complainant had also worked on a small family farm for approximately
40 years. Complainant completed various agency training courses,
and received a Bachelors degree in Business Education in June 1981.
Complainant stated that she qualified for a GS-475 position in August
1987, based upon her experience. Complainant listed four GS-475-5
Assistant County Supervisor positions for which she would have
applied.<3>
In its final decision, the agency acknowledged that complainant
demonstrated that she was affected by the former positive education
requirement. The agency denied complainant's claim, however, ruling
that the individuals selected for the Assistant County Supervisor
positions were better qualified. The agency further noted that other
class complainants who were more qualified were awarded two of the
positions identified by complainant.
The Commission agrees with the agency that the individuals selected for
the vacancies specified were better qualified for the Assistant County
Supervisor positions than complainant. Specifically, those individuals
all had specialized experience either consisting of a graduate degree in
agriculture, higher-level agriculture-related experience, or a combination
of both. Further, two of the positions in question were awarded to other
class complainants who also possessed specialized experience under the
new qualification standards. While complainant had several years of
general experience, the record does not show that she had additional
specialized experience necessary to qualify for positions above the
GS-5 level. Although complainant appears to question the reliance
on college and advanced degrees to meet the position requirements,
the revised qualification standards for GS-475 positions provided for
qualification based on education, experience, or a combination thereof.
CONCLUSION
Based upon a review of the record herein, it is the decision of the
Commission to AFFIRM the final agency decision in this matter.
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
__12-22-00________________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1On 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.
2The agency failed to submit a postal return receipt or other evidence
that would show when complainant received the final agency decision;
accordingly, the appeal is deemed to be timely.
3While complainant also stated that her position was not upgraded and that
she would have applied for various positions in the GS-1165 series, those
matters are outside the scope of the underlying settlement agreement.