01996621
07-17-2001
Agency.
Miriam Baez-Ortiz v. Department of Agriculture
01996621
July 17, 2001
.
Miriam Baez-Ortiz,
Claimant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01996621
Agency No. 870807
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 recommended decision of an EEOC Administrative Judge
appointed in accordance with the Mitchell decision, and the terms of the
October 10, 1993 settlement agreement between the class representative
and the agency, we find that the claimant is not entitled to relief.
She has not met her burden of establishing that, between October 12,
1986 and August 7, 1994, she would have qualified for a GS-475 position
under the agency's revised standards.
The history of the Sonia Byrd class action case against the agency is
well-documented in prior Commission decisions.<1> Briefly, the class
agent, Ms. Byrd, filed a formal class EEO 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. The class action challenged the requirement
that persons seeking GS-475 positions possess a degree in agriculture or
have completed thirty semester hours of agriculture-related course work.
An Administrative Judge (AJ) recommended certification of a class of all
females employed by the FmHA on or after October 12, 1986. The agency
rejected the AJ's recommendation, but the Commission reversed and
found that the class complaint, as described by the AJ, satisfied the
requirements for certification. Byrd v. Department of Agriculture, EEOC
Appeal No. 01890012 (December 11, 1989). The Commission subsequently
granted the agency's request for reconsideration, but upheld the class
certification. The Commission also excluded those female FmHA employees
who qualified for GS-475 positions under the old standard, which existed
prior to October 12, 1986, and 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 concluded a settlement agreement.
The agreement 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.<2> The agreement further stated, in pertinent
part, that:
[The agency] will institute an individual claim system, pursuant to 29
C.F.R. � 1614.204(1)(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 ....
In February 1996, the claimant submitted a claim under the settlement
agreement maintaining that she qualified for a GS-475 position based
on her education and experience. In her claim, she indicated that
she had provided assistance to the County Supervisor and the Assistant
County Supervisors in the servicing of agency clients, that they gave
her training and guidance, and that, as one of only four employees in a
very busy office, she had experience in providing substantive assistance
to borrowers. Claimant's claim identified many GS-475 positions that
opened during the relevant period that she would have sought but for
the prior positive education requirement.
The record indicates that claimant began working for the agency as a
County Office Clerk, GS-0322-02, in 1977. In May 1981, her position
was classified at the GS-4 level, where she remained until February
1995, when she was promoted to County Program Assistant, GS-1101-5.
Claimant's claim also indicated that she took courses in accounting,
economics, mercantile law,
administrative theory, and human relations at Catholic University
of Puerto Rico, from which she received a Bachelor's Degree in
Secretarial Science in May 1976. Claimant also took courses that
the agency offered on agency-related matters. These courses were in
data bases, spreadsheets, automated farm and home plan, AG-Credit,
DARLS, EM, servicing and liquidation of real estate security, servicing
chattel security, FmHA loans, and handling applications. The claimant
also indicated that she had received a Certificate in Mathematics for
Appraisers. Finally, claimant noted that her family had a poultry farm
growing chickens for a local producer. Since childhood, she assisted
her family in the operation of the farm, which also included tobacco,
sugar cane, and beef cattle. According to complainant, she also provided
assistance in financial and agronomic matters.
In its final decision, issued on May 8, 1997, the agency held that
claimant did not qualify for a GS-475-05, Agriculture Management
Specialist position under the revised standard and thus was not entitled
to relief. Specifically, the agency indicated that the positions cited
by the claimant required a minimum of a 4-year course of study above
high school leading to a Bachelor's Degree or three years of general
work experience which included at least one year of work experience
equivalent to the GS-04 level. The agency found that claimant's GS-04
work experience did not give her the "qualifying experience" set forth in
the revised GS-475 standard. Since the agency also found that she did
not meet the educational requirements of the position, the claimant's
claim was dismissed. The claimant filed an appeal with the Commission.
She maintained that she met the education and work requirements to
qualify for a position.
On July 7, 1997, the Commission issued the decision in Mitchell. In that
decision, the Commission determined that many of the claims that the
agency had previously rejected required reconsideration using a fact
finding procedure that was established. The Commission also addressed
the burdens of proof applicable in the remedy phase of a class action.
On November 28, 1997, in Baez-Ortiz , et al. v. Department of Agriculture,
EEOC Appeal No. 01975144, et al., the Commission, among other things,
vacated the agency's final decision with respect to claimant and
referred her claim to the fact finding inquiry established in Mitchell.
The Commission found that the agency's final decision failed to discuss
whether claimant's farm-related experience, coupled with her actual
work experience (and not her job title), would have qualified her for a
GS-475 position under the revised standard. The claimant, according to
the decision, had the burden of proving, under the preponderance of the
evidence standard, that she qualified for a GS-475 position under the
new standard and thus was possibly entitled to relief. Assuming she
established that she was qualified for a GS-475 position during the
relevant period, October 12, 1986, to August 7, 1994, the burden would
have shifted to the agency to prove, by clear and convincing evidence,
that it did not adversely affect claimant when it selected others for
the positions she cites in her claim.
Thereafter, claimant's claim was reviewed by an EEOC Administrative Judge
(fact-finder). Noting that neither the agency nor the claimant chose to
participate in the fact-finding phase by submitting either a statement
or additional evidence,<3> the fact-finder determined that claimant
failed to meet her burden of proving by a preponderance of the evidence
that she would have qualified for a position under the new standard.
Although the complainant had some farm-related and work experience,
the fact-finder found that it did not rise to the level of experience
necessary to qualify for a GS-475 position. According to the fact
finder, the majority of complainant's education and training experience
was directed towards her County Office Clerk position. Therefore,
his recommendation was that her claim be denied.
After an objective review of the qualification standards, claimant's
education, work experience, and farm-related work experience, we must
agree with the fact-finder's determination that the claimant failed to
establish that she would have qualified for a GS-475 position under the
new standard. Accordingly, we find that 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
July 17, 2001
______________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________________
Date
______________________________
1See, 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).
2With 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.
3The agency, however, did submit answers to the interrogatories propounded
by the Commission.