01a53379
10-19-2005
George Jadue, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
George Jadue v. Department of Homeland Security
01A53379
October 19, 2005
.
George Jadue,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A53379
Agency No. 04-0393
DECISION
Complainant appeals to the Commission from the agency's March 8, 2005
decision finding no discrimination. According to the agency's decision,
complainant alleges that he was subject to a hostile work environment
on the bases of national origin (Arabic) and reprisal for prior EEO
activity when:
1. On July 1, 2001, complainant's supervisor failed to offer complainant
Employee Assistance Program (EAP) counseling.
On July 10, 2001, complainant was given a written counseling.
On July 22, 2001, complainant was threatened with disciplinary action.
In October 2001, complainant was denied administrative leave.
The agency, in its decision, concluded that it asserted a legitimate,
nondiscriminatory reason for its actions, which complainant failed
to rebut.
We find that the agency has articulated a legitimate, nondiscriminatory
reason for its actions. As to complainant's claim that his supervisor
treated him in a disparate manner, the Supervisory Border Patrol Agent
(SBPA) explained that complainant was not initially offered EAP counseling
because complainant had told the SBPA that �he was all right... and
did not seem upset or emotionally distraught about the [drowning]
incident.� The SBPA reported that, upon learning that many of the
other agents who were involved had become emotionally distraught, he
informed complainant on the following day that EAP was available to him
at no charge. The SBPA stated that complainant again told him that �it
was OK and not to worry about it.� As further evidence that there were
no discriminatory motives, the SBPA commented that he later recommended
complainant to be the employee of the month, to which complainant was
subsequently selected, for his �unselfish actions in trying to save the
individual from drowning.�
With respect to complainant's claim that he was given written counseling,
the SBPA said that to the best of his knowledge that he was not aware
of being involved with any written counseling regarding complainant on
July 10, 2001. Complainant failed to provide evidence showing that he
was provided written counseling.
In terms of complainant's claim that he was threatened with disciplinary
action, the SBPA reported that he believes complainant's claim of being
threatened with disciplinary action on July 22, 2001, had to do with
complainant being absent without leave (AWOL) on that date. The SBPA
said that he remembered having documented the complainant as being AWOL
at the beginning of his shift on that day.
Regarding complainant claim that he was denied administrative leave,
the Deputy Chief Patrol Agent (DCPA) explained that all administrative
leave is approved by the Chief Patrol Agent (CPA) or someone acting on
his behalf. In addition, although the administrative manual permits
employees of the component to request administrative leave to take
tests for other employment, the DCPA stated that it was the practice of
the CPA not to grant administrative leave for people taking tests for
other employment. However, upon discovery that administrative leave
under similar circumstances had been previously granted to a coworker of
complainant, the DCPA indicated that he agreed to retroactively amend
complainant's time and attendance to reflect authorized administrative
leave.
The Commission finds that complainant has failed to show that the agency's
reasons are pretext for discrimination. Furthermore, complainant
has failed to show, by a preponderance of the evidence, that he was
discriminated against on the bases of national origin or reprisal.
The agency's decision finding no discrimination is AFFIRMED.
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 (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
October 19, 2005
__________________
Date