01a53725
10-19-2005
Jose E. Gutierrez, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (U.S. Customs and Border Protection) Agency.
Jose E. Gutierrez v. Department of Homeland Security
01A53725
10-19-05
.
Jose E. Gutierrez,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(U.S. Customs and Border Protection)
Agency.
Appeal No. 01A53725
Agency No. 04-136C, 04-4133
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant alleged that the agency discriminated against him on the bases
of national origin (Hispanic) and sex (male) when following an October 30,
2003, letter of proposed termination, management required him on or about
January 16, 2004, to relinquish his weapon, the narcotics issued to him,
and his keys to the soft narcotics room, did not allow him to work his
canines to maintain proficiency in narcotics detection, removed his access
to the Treasury Enforcement Communication System (TECS) and National
Crime Information Center (NCIC), and placed him on administrative duties.
On appeal, complainant contends that the agency's rules applied to
him but did not apply to a white female and a white male when they
received notices of proposed removal. The record shows however, that
the woman's weapon was taken away after issuance of a proposed removal,
and the man was never issued a weapon. The record also shows that
these individual were not similarly situated to complainant as they
had different supervisors and were stationed at different locations.
Moreover, the record, reflects that the white male who was involved in
the car accident with complainant was also subjected to the same actions.
Notwithstanding, the Commission finds that even assuming arguendo that
complainant established a prima facie case of discrimination, the agency
articulated a legitimate nondiscriminatory reason for its action, namely,
that the agency did not want complainant to be able to subvert their law
enforcement mission and the actions were in line with established policy.
The Commission finds that complainant failed to show that the agency's
actions were pretext for discrimination.
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the agency's
final decision because the preponderance of the evidence of record does
not establish that discrimination occurred.
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
____10-19-05______________
Date