Free Lodged Proposed Document - District Court of Arizona - Arizona

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ARBETMAN LAW OFFICE, P.C. JEFFREY F. ARBETMAN State Bar No. 005380 349 North 4 th Avenue Phoenix, Arizona 85003 [email protected] (602) 265-1770 Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT

7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. John Snow, Secretary of the Treasury, and, Michael Chertoff, Director of the Department of Homeland Security, Defendants. NOW COMES, the Plaintiff, Thomas D. McCaffrey ("McCaffrey"), by and through his attorney, Jeffrey F. Arbetman, complaining against the defendants John Snow, Secretary of the Treasury, and Michael Chertoff, Director of the Department of Homeland Security, and in support thereof states as follows: 1. This action arises under the Age Discrimination in Employment Act of 1967 as Amended, 29 U.S.C. §621 et seq. 2. McCaffrey is, and was at all material times, a resident of Maricopa County, Arizona. 3. Defendant John Snow is the Secretary of the Treasury and Defendant Michael Chertoff is the Director of the Department of Homeland Security. 4. The United States Customs Service ("USCS") was a component of the Department of the Treasury until March 2003 and is now merged into the Bureau of Immigration and Customs Enforcement ("BICE"), a component of the Department of Thomas D. McCaffrey, Plaintiff, Civ-04-0701-PHX-SMM SECOND AMENDED COMPLAINT

(Jury Trial Not Requested)

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Homeland Security. 5. Defendant John Snow is the titular head of the USCS and Michael Chertoff is the titular head of BICE. As such they are the appropriate Defendants herein, 42 U.S.C. §2000e-16( c ). 6. The USCS and BICE are federal agencies affected by 29 U.S.C. §633(a)(a). 7. This Court has jurisdiction over this action by virtue of 28 U.S.C.§§ 1331, 1343, and 1346; and 29 U.S.C. §633(a). 8. The appropriate venue for this action is in this court inasmuch as McCaffrey resides in Maricopa County, State of Arizona and the USCS and BICE have offices within Maricopa County, and most, if not all of the acts giving rise to this action occurred in Maricopa County.

GENERAL ALLEGATIONS 6. McCaffrey was born on August 31, 1951. 7. McCaffrey was employed by USCS from 1988 until March 2003 and thereafter with BICE. 8. At all times here relevant McCaffrey was employed by the USCS Office of investigations, Arizona Region, as a GS-1811-12 Special Agent. His duty station was and is Phoenix, Arizona. 9. In September 1997, USCS issued Merit Promotion Vacancy Announcement WA31811, which solicited qualified applicants for the position of Criminal Investigator (Special Agent), GS-1811-13. 10. McCaffrey timely applied for the position listed in Promotion Vacancy Announcement WA31811 and was found to be qualified for the position. Thus, he and 11 other candidates were found to be eligible for the GS-1811-13 position under Merit Promotion Certificate WA-BF-0572. 11. McCaffrey was the oldest candidate listed on Merit Promotion Certificate WABF-0572.

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12. On May 5, 1998, the individuals who were selected from the list on Merit Promotion Certificate WA-BF-0572 were John F. Whinery and Charley R. Graham, who were younger than McCaffrey and not as well qualified. 13. In July 1998 USCS issued Merit Promotion Vacancy Announcement

AN31811, which solicited qualified applicants for the position of Senior Special Agent GS-1811-13. 14. McCaffrey timely applied for the position listed in the Promotion Vacancy

Announcement AN31811 and was found to be qualified for the position. Thus, he and 11 other candidates were found to be eligible for the GS-1811-13 position under Merit Promotion Certificate AN-BF-1329. 15. On September 9, 1999 the individual who was selected from the list on Merit

Promotion Certificate AN-BF-1329 was Stephen J. Leon who was younger than McCaffrey and not as well qualified. 16. In February 2000 USCS issued Merit Promotion Vacancy Announcement

CAAPS/00-002KRH, which solicited qualified applicants for the position of Senior Special Agent Occupational Specialist position. 17. McCaffrey timely applied for the position listed in the Promotion Vacancy

Announcement CAAPS/00-002KRH and was found to be qualified for the position. Thus he and 22 other candidates were found to be eligible for the Senior Special Agent Occupational Specialist position under Merit Promotion Certificates CP-CAAPS00020718. 18. On August 15, 2000, the individuals who were selected from the list on the

Merit Promotion Certificates CP-CAAPS0002-0718 were Douglas Morgan, Jr., and Daniel Mikolay , who were under 40 years of age and not as well qualified for the position. Furthermore, on information and belief, Mr. Morgan and Mr. Mikolay selections were based on non-merit factors in violation of personnel regulations and policies. 19. On September 6, 2000, McCaffrey initiated an Informal Complaint of

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Discrimination alleging age discrimination regrading the above mentioned promotional opportunities against the USCS. On or about December 12, 2000, McCaffrey filed an Individual Formal Complaint of Employment Discrimination with the Department of the Treasury. On or about January 3, 2002, McCaffrey filed a second Individual Formal Complaint of Discrimination with the Department of the Treasury alleging retaliation by the USCS for participating in the EEO process. 20. From March 1996 to March 1998, McCaffrey was assigned to the Federal

Bureau of Investigation by the USCS as part of the Arizona Counter Terrorism Task Force. His duties consisted of investigating terrorist activities and assisting the prosecution of state and federal criminal laws in connection with those terrorist activities. In March 2000 McCaffrey was reassigned to the Federal Bureau of Investigation to what was now designated the Joint Terrorism Task Force ("JTTF"). 21. On September 11, 2001 and thereafter McCaffrey's duties related to the

investigation of the bombing of the World Trade Center in New York City and related matters. In relation to those matters McCaffrey voluntarily worked hundreds of hours of overtime. 22. On or about October 11, 2001, during the pending Formal Complaint of

Discrimination, McCaffrey was informed by his supervisor, Kevin Jeter, that he was removed from the JTTF and that it was a "management decision". Later, on October 16, 2001 McCaffrey was told by the Resident Agent in Charge, John Turner, in the presence of his supervisor, in reference to his removal from the JTTF and his Formal Complaint of Discrimination, that: "We are all very tired of this. It has to stop". 23. On or about October 11, 2001, McCaffrey was informed that the Federal

Bureau of Investigation was going to pay McCaffrey's "voluntary" overtime because of legal requirements. On October 16. 2001 the Resident Agent in Charge told McCaffrey that he was denying the overtime pay event though such pay was legally due McCaffrey and that he was insubordinate because he had been told not to work overtime. 24. On or about August 8, 2002, McCaffrey requested and was granted a hearing

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before an EEOC administrative law judge. During the pendency of that proceeding, on or about April 1, 2003, McCaffrey requested a final agency decision from the USCS and BICE with respect to the Formal Complaints of Discrimination referenced in paragraph 19 herein, pursuant to 29 C.F.R. §1614.110 and EEO MD-110, Chap.V.A. As of the date of filing this complaint, neither the USCS or BICE have made such a final decision as required. 25. On or about April 28, 2004 McCaffrey was removed from a sensitive

national security investigation without cause. 26. On or about July 9, 2004 McCaffrey was informed by his supervisor that

was to be reassigned to the JTTF. On July 12, 2004 the assignment was withdrawn by the Special Agent in Charge because it would be an "admission of guilt" on the part of the Agency. 27. On or about January 14, 2005, McCaffrey learned that he had been

intentionally and wrongfully assigned an inordinate amount of (approximately 1159) records contained in the Agency's criminal electronic database records (TECS) by his former supervisor Charles Allaire, which records were not relevant to investigations assigned to him. The assignments of those TECS records caused McCaffrey to significantly reduce his investigative efficiency, which was detrimental to the Agency and his professional reputation, because McCaffrey had to respond to any inquiries made by law enforcement agencies all over the world. 28. On or about October 31, 2005, during the Equal Employment Office

investigation regarding the allegations contained in paragraph 27, supra, McCaffrey's supervisor, William O'Neill, sent McCaffrey a note requesting to talk to McCaffrey prior his use of the TECS system that day. On arriving at Agent O'Neill's office, McCaffrey was told by Agent O'Neill: "Your stupid EEO complaint is making my last two months here a living hell! I have to answer all these questions because of you." Agent O'Neill then ordered McCaffrey to give him a list of all TECS "hits" when he arrives at work each morning. This activity took Agent McCaffrey up to one hour per day, further

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reducing his efficiency as a Senior Special Agent.

29.

On or about April 20, 2005 McCaffrey received the Final Agency Decision

regarding the retaliation incidents described in paragraphs 25 and 26, above.

FIRST CLAIM FOR RELIEF (Civil Rights Violation - ADEA) 30. McCaffrey realleges and incorporates by reference each and every

allegation in paragraphs 1 through 29 as if fully set forth herein. 31. As a result of the above-mentioned conduct described herein the USCS and

BICE violated the provisions of the Age Discrimination in Employment Act, as Amended in 1978, 29 U.S.C. §633a.

SECOND CLAIM FOR RELIEF (Retaliation) 32. McCaffrey realleges and incorporates by reference each and every

allegation in paragraphs 1 through 31 as if fully set forth herein. 33. With regard to the treatment of plaintiff described in paragraphs 21 through 23 and 25 through 28 , the Defendants violated the provisions of the Age Discrimination in Employment Act, as Amended in 1978, 29 U.S.C. §633a. 34. McCaffrey alleges that Defendant BICE continues to retaliate against him

for engaging in activity protected by the Age Discrimination in Employment Act. RELIEF WHEREFORE, McCaffrey prays for judgment against the USCS and BICE: A. For his actual, consequential, and special damages as alleged above and proven at trial. In other words: 1. The USCS and BICE will provide payment to McCaffrey on a make whole basis for any loss of earnings which, in turn, includes any

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incremental increases McCaffrey would have earned if not for the prohibited age discrimination; Upon rendering of a favorable verdict, McCaffrey will receive a retroactive promotion and will be placed in the Senior Special Agent Position as of May 5, 1998; Upon rendering of a favorable verdict, McCaffrey will receive any subsequent promotions and pay increases which he would have likely received had he received the Senior Special Agent position at the time of the original selection; In the event that the relief set forth in ¶¶ A(2) & (3) supra is not granted or is otherwise not found to be appropriate, McCaffrey will receive an award of front-pay; Upon rendering of a favorable verdict, McCaffrey will also be entitled to prejudgment interest on his back-pay award pursuant to all applicable statutory schemes including, but not limited to, the Back Pay Act, 5 U.S.C. §5596 et seq., the Civil Rights Act of 1991, 42 U.S.C. § 2000e-16(d), and 29 C.F.R. §1614.501(b)(1)(ii) and (c)(1); and Upon rendering of a favorable verdict, McCaffrey will also be entitled to an award of compensatory damages pursuant to all applicable statutory schemes including, but not limited to, the Civil Rights Act of 1991, 42 U.S.C. §1981a(b). B. For attorneys' fees, costs of suit, and related expenses incurred in this action. More specifically, upon rendering of a favorable verdict, McCaffrey will also be entitled to an award of attorneys' fees and costs pursuant all applicable statutory schemes including, but not limited to, the Equal Access to Justice Act, 28 U.S.C. §2412(b) and the Civil Service Reform Act of 1978 (as amended), 5 U.S.C. §2302 et seq.; and C. For such other and further relief, including equitable relief, as this Court deems 7 Document 26

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just and proper. For example, upon rendering of a favorable verdict the Court should, in accordance with 29 C.F.R. §1614.501(a)(1), order the USCS and BICE to notify all of its employees at the affected facilities of their right to be free of unlawful, age-based discrimination and assure the employees that the particular type of discrimination found will not recur. DATED this 3rd day of May, 2006.

ARBETMAN LAW OFFICE, P.C.

_s/ Jeffrey F. Arbetman, Esq.________ Jeffrey F. Arbetman, Esq. Attorney for the Plaintiff

CERTIFICATE OF SERVICE I hereby certify that on the 3rd day of May, 2006, I electronically transmitted the attached AMENDED COMPLAINT to the following: [email protected] I hereby certify that on the 3 rd day of May, 2006, I served attached AMENDED COMPLAINT by mail/hand-delivery* on the following: John R. Mayfield, Esq. Assistant U.S. Attorney Two Renaissance Square 40 North Central Ave., Suite 1200 Phoenix, AZ 85004 The Honorable Stephen M. McNamee* U.S. District Court District of Arizona Sandra Day O'Connor U.S. Courthouse Phoenix, AZ 85003-2151

s/ Eva Lindsay

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