0520070616
07-25-2007
Laurence Zieff, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Laurence Zieff,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Request No. 0520070616
Appeal No. 0720040139
Hearing No. 160-2003-08266X
Agency No. 041087
DENIAL
Complainant timely requested reconsideration of the decision in Laurence
Zieff v. Department of Homeland Security, EEOC Appeal No. 0720040139
(May 7, 2007). EEOC Regulations provide that the Commission may, in
its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b). For the reasons set forth herein, the decision in EEOC
Appeal No. 0720040139 remains the Commission's final decision.
Complainant worked as an Assistant Regional Counsel (ARC), GS-14, in the
Office of the Regional Counsel, Eastern Region in Burlington, Vermont.
On June 1, 2001, he filed a formal complaint, claiming that he received
a lower salary than a similarly situated female (E1) performing the
same duties. The record reflects that E1, a Deputy District Counsel,
GS-15, in New York, New York, sought a transfer to the Eastern Region
and was offered a position. The agency permitted E1 to retain her
GS-15 pay grade. The agency stipulated that, since 1998, complainant
and E1 "perform[ed] substantially equal work for the agency, requiring
substantially equal skill, effort, and responsibility."
Following the agency's investigation, and upon complainant's request, the
matter was assigned to an EEOC Administrative Judge (AJ). Both parties
filed motions for a decision without a hearing, and the AJ assigned to
the matter granted complainant's motion, finding that the agency violated
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq., and the Equal Pay Act of 1963 (EPA), as amended,
29 U.S.C. � 206(d) et seq.
The AJ found that complainant established a prima facie case under the
EPA; the agency failed to establish any of the affirmative defenses
available under the EPA; the agency willfully violated the EPA, in that,
complainant was paid at a lower pay grade than a similarly situated
female employee performing equal work under similar working conditions;
and, citing to 29 C.F.R. � 1620.27, the agency also violated Title VII.
The AJ ordered equitable relief for complainant, including a retroactive
promotion, effective March 15, 1998; back pay and benefits; liquidated
damages; and $856.57 in costs.
The agency thereafter issued a final order in which it declined to
implement the decision of the AJ, and it appealed the AJ's decision to
the Commission. The agency argued that the AJ made substantial errors
in his factual determinations and disregarded key facts which led to an
erroneous application of the law.
In EEOC Appeal No. 0720040139, the Commission determined that the
investigative record was not adequately developed; there were genuine
issues of material fact in dispute; and findings of fact were made
by weighing conflicting evidence or assessing witness credibility.
We noted that, "having been made aware of the agency's investigation
into the truthfulness of statements made by [two responsible management
officials], both pivotal witnesses in this matter, [] justice require[d]
further inquiry into their roles." The Commission therefore remanded
the matter for a hearing.
On June 7, 2007, complainant filed the subject request to reconsider with
an accompanying brief.1 He contends that that Commission erroneously
interpreted two material facts. First, he argues that the overwhelming
evidence of record reflects that the agency only considered E1's prior
salary when it allowed her to retain her GS-15 pay grade. He noted
that the agency cannot assert a "factor other than sex" defense since
it relied solely on the aforesaid reason, which is forbidden under EEOC
Compliance Manuel, Chapter 10, � IV.F.2(g). Second, he maintains that the
Commission should not have considered the Acting General Counsel's (LS)
affidavit in 2002 where she stated that E1 would be a Special Counsel and
coordinate the special interest cases, because in her 1999 declaration,
she averred that the only question presented to her by the Regional
Counsel (JP) was whether E1 would be allowed to retain her grade.2
In a request to reconsider, a complainant is required to show that the
appellate decision involved a clearly erroneous interpretation of material
fact or law; or the appellate decision will have a substantial impact on
the policies, practices, or operations of the agency. See 29 C.F.R. �
1614.405(b). "A request for reconsideration is not a second appeal to
the Commission." Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), Chapter 9, � VII (November 9, 1999).
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). In a decision without a hearing, i.e., a
summary judgment, the courts have been clear that summary judgment is not
to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766,
768 (1st Cir. 1975). The Commission has noted that when a party submits
an affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
In the present matter, the Commission disagrees with complainant's
assertion that no genuine issue of material fact is in dispute.
With respect to the argument set forth that E1's prior salary was the
agency's sole consideration for its decision, we find that conflicting
evidence exists that must be resolved at a hearing through credibility
determinations by an AJ. While the Commission acknowledges the
existence of testimony from various management officials that E1's
GS-15 pay rate was based upon her previous position, we find that,
contrary to complainant's assertion, there is also evidence that
complainant was transferred as a Special Counsel and was to coordinate
special interest cases. Report of Investigation (ROI), Exhs. 24,
at 5; 25, at 3. Furthermore, inasmuch as complainant refers to the
discrepancies in LS's affidavits, we find that these inconsistencies
in her testimony are precisely the reason that a hearing is needed to
ascertain her credibility. In this regard, the Commission fully agrees
with complainant's contention that the AJ must explore LS's credibility,
focusing on her demeanor and/or on the tone of her voice, during the
hearing. EEO MD-110, Chapter 9, � VI.B. For these reasons, and all
those stated in EEOC Appeal No. 0720040139, we find that the record in
the present case must be more fully developed to determine whether the
pay difference between complaint and E1 constitutes a violation of Title
VII and the EPA.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 0720040139 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request. Complainant's
complaint is returned to the agency for processing, and the agency is
directed to comply with the Order below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC Baltimore Field
Office the request for a hearing within fifteen (15) calendar days of the
date this decision becomes final. The agency is also directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address
set forth below that the complaint file has been transmitted to the
Hearings Unit. Thereafter, the AJ assigned to this matter shall process
the complaint in accordance with 29 C.F.R. � 1614.109, and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
__7/25/07_________________
Date
1 The agency requested an extension of time to file its brief in
opposition to the request for reconsideration. The Commission, however,
does not grant extensions for the submission of briefs in requests
to reconsider. See 29 C.F.R. � 1614.405(b).
2 Complainant further contends that the Commission made two mistakes
of law. The Commission, however, will not address these arguments
herein since we find that genuine issues of material fact are in dispute,
requiring that a hearing be held. See infra.
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0520070616
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0520070616