Thomas K. Ware, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMay 15, 2007
0120044214 (E.E.O.C. May. 15, 2007)

0120044214

05-15-2007

Thomas K. Ware, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Thomas K. Ware,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 012004442141

Agency No. 040142 (I01H039)

DECISION

On June 5, 2004, Thomas K. Ware (complainant) filed an appeal from the

decision of the Department of Homeland Security2 (agency) dated May 11,

2004, concerning his equal employment opportunity (EEO) complaint claiming

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.; the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq.; and the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. �

206(d) et seq. The appeal is deemed timely and is accepted pursuant to

29 C.F.R. � 1614.405(a).

Complainant filed a formal complaint in early June 2001, claiming

discrimination on the bases of sex (male) and age (DOB 7/19/1949) when

(a) he was denied the opportunity to apply for a "Special Counsel"

position in the INS; and (b) he was paid at a lower pay grade than a

similarly situated female employee, who performed the same work as he

did under the same working conditions. Following an investigation,

the complainant requested a decision without a hearing, and the agency

issued its final decision (FAD), finding that it did not discriminate

against the complainant.

On May 7, 2007, the Commission issued its decision in Zieff v. Department

of Homeland Security, EEOC Appeal No. 0720040139. The complainant in

that matter, who worked at the same office as the complainant, alleged

discrimination based on sex in violation of Title VII and the EPA and

raised similar claims as the complainant herein. After the investigation,

Mr. Zieff requested a hearing before an EEOC Administrative Judge

(AJ). The AJ issued a decision without a hearing on August 3, 2004,

finding that summary judgment was appropriate and that the agency

discriminated against him under both statutes. The agency filed an

appeal with the Commission objecting to the AJ's determination. In EEOC

Appeal No. 0720040139, the Commission found that the record before the

AJ was not sufficient to support his decision, and we remanded the case

for further investigation and an administrative hearing. In doing so,

we addressed many of the AJ's findings of fact and conclusions of law

and noted areas where additional information was necessary.

Here, we similarly conclude that the record before the agency is

insufficient to support its determination in this case; consequently,

we vacate the agency's FAD and will require the agency to conduct a

supplemental investigation in light of our decision in Zieff and to

issue a new final agency decision.

CONCLUSION

Accordingly, the agency's decision in EEOC Appeal Nos. 0120044214 is

vacated and remanded to the agency. The agency is directed to comply

with the Order below.

ORDER

A. Within thirty (30) calendar days of the date this decision becomes

final, the agency shall inform the complainant that it has received the

remanded matter.

B. Within sixty (60) calendar days of the date this decision becomes

final, the agency shall further investigate and re-examine this case in

light of the Commission's decision in Zieff v. Department of Homeland

Security, EEOC Appeal No. 0720040139 (May 7, 2007).3

C. Within thirty (30) calendar days of the date the agency completes

the investigation ordered above, the agency shall issue a final agency

decision to complainant and advise him of the appropriate rights on

appeal, unless the matter is otherwise resolved prior to that time.

D. In accordance with Equal Employment Opportunity Management Directive

for 29 C.F.R. Part 1614 (November 9, 1999), the agency shall give priority

to this remanded matter in order to comply with the time frames contained

in this Order. The Office of Federal Operations may issue sanctions

against agencies if it determines that an agency is not making reasonable

efforts to comply with the Commission's Order.

E. A copy of the agency=s letter of acknowledgment to complainant must

be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (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

____05/15/07_______________

Date

1 Due to a new data system, this case has been re-designated with the

above-referenced appeal number.

2 The original complaint at issue herein was filed against the Immigration

and Naturalization Service (INS), Department of Justice. As of March 1,

2003, INS merged into the Department of Homeland Security. The events

in this complaint occurred prior to March 1, 2003, while INS was part

of the Department of Justice.

3 Pursuant to EEOC Regulation 29 C.F.R. � 1614.606, the Commission

strongly advises the agency to consider consolidating this case with

EEOC Appeal Nos. 0120044165 and 0120044166, which raise substantially

similar allegations of discrimination.

??

??

??

??

2

0120044166

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120044214