U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Irvin W.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120181433
Hearing No. 490-2017-00042X
Agency No. 200106142016102822
DECISION
On February 28, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
February 1, 2018, final decision concerning his equal employment opportunity (EEO) complaint
alleging 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle
Operator (MVO), GS-6, in the Veteran's Transportation Services and Beneficiary Travel section
of the Business Office at the VA Medical Center in Memphis, Tennessee.
On May 23, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him based on race (African-American) when his probationary employment was terminated
on March 21, 2016.
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an EEOC Administrative Judge.
Complainant timely requested a hearing but subsequently withdrew his request. Consequently,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The
instant appeal followed.
FACTUAL BACKGROUND
Complainant was hired on September 21, 2015 and was subject to a one-year probationary period.
On March 21, 2016, Complainant received a probationary employment termination notice issued
by the Human Resources Service (HRS). The notice cited the termination reason as failure to
qualify during the probationary/trial period due to inappropriate use of a government charge card.
Complainant alleged that the termination decision occurred because of discrimination based on his
race. Complainant asserted that his claim of race discrimination was based on a belief that the
Veterans Transportation Services Coordinator, GS-6, (TSC) (African-American), allegedly
jealous of Complainant, persuaded Complainant’s first-line supervisor, the Veterans
Transportation Services Mobility Manager, GS-11, (S1) (Caucasian), to recommend
Complainant’s termination. However, TSC denied having had a role in the termination decision.
The record shows that TSC receives fuel receipts and logs from drivers at the end of each month
and submitted Complainant's receipts to management because it showed cash back on his
government card.
S1 testified that she was responsible for recommending Complainant's termination. S1 stated that
all of her employees are African-American, and that she did not discriminate against Complainant
based on race. S1 also explained that employees who misuse a government credit card would
receive similar discipline regardless of race. S1 further testified:
As a Motor Vehicle Operator, Complainant is entrusted with a credit card so that
he may, if needed, among other things purchase gas. There is a strict prohibition
against getting cash back on the card issued to Complainant. On or about January
29, 2016, Complainant executed two transactions on his credit card for which he
received a total of $88.08 in cash back. On or about February 4, [...], Transportation
Coordinator discovered the transactions while reconciling the account. The VA
police were called, and an investigation was conducted. On or about February 5,
2016, I discovered slipped under my door an envelope with $68.73 cash. When I
confronted Complainant regarding the transactions, he first explained that he was
unaware that cash-back transactions were prohibited. He then stated that the cash-
back transactions occurred because of a problem at the pump where gas was
purchased. When I disclosed that the reconciliation showed two transactions, he
insisted that there was only one. He also disputed that $88.08 was the amount of
the cash back; however, approximately a week later he paid the difference.
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From these facts, I concluded that Complainant had misused his credit card and
terminated him during his probationary period.
The record shows that on February 9, 2016, S1 submitted a written memorandum thru the Chief,
Business Officer (S3) (Caucasian), the Chief, Patient Access & Enrollment Business Office; and
Assistant Chief Business Office requesting termination of Complainant for inappropriate use of a
government credit card, noting that Complainant was still in a probationary employment status.
Additionally, the record shows that S3 was also involved in recommending Complainant's
termination. S3 explained his involvement as having received S1’s recommendation to terminate
Complainant during the probationary period because he misused a government credit card.
Specifically, S3 stated that on January 29, 2016, Complainant used his government credit card in
two transactions at a gas station to acquire cash. S3 also affirmed that Complainant initially did
not report the transactions. When the transactions were discovered, and Complainant was
confronted, S3 explains that he submitted an envelope containing $68.73 to his supervisor, leaving
a balance unaccounted for of $19.32.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he did nothing wrong and that the record shows that the
Agency discriminated against him. Complainant explains his side of the situation and claims that
the Transportation Coordinator was trying to set him up for failure. Complainant maintains that
he did not misuse the government credit card. Accordingly, Complainant requests that the
Commission reverse the final decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).
Disparate Treatment
To prevail in a disparate-treatment claim absent direct evidence of discrimination, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court. McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie
case by demonstrating that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco
Constr. Co. v. Waters, 438 U.S. 567, 576 (1978).
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Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its
actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the
Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance
of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but
were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993).
The prima facie inquiry may be dispensed with where, as here, the Agency articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). The record shows that the Agency articulated a legitimate, nondiscriminatory
basis for terminating Complainant, i.e., misuse of government credit card. The record discloses
that Complainant made two advanced purchases with his government-issued gas credit card on
January 29, 2016 and received cash back from these transactions in violation of Agency policy.
The transactions were discovered while reconciling the account and VA police investigated the
matter. Complainant subsequently paid back the amount in question. Based on the investigation,
management determined that Complainant had inappropriately used the government credit card
and recommended his termination. As a result, on March 21, 2016, Complainant was issued a
probationary employment termination notice.
Aside from Complainant’s bare, uncorroborated assertions, the record is devoid of evidence to
support a claim of pretext or that any responsible management official was motivated by
Complainant’s race. We find the documentary record and testimonial evidence supports the
Agency’s explanation for terminating Complainant.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (S0610)
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.
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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
July 9, 2019
Date
