Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

May 7, 2015

01-2013-2844-0500 (E.E.O.C. May. 7, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Appeal No. 0120132844

Agency No. HS11FEMA00200

DECISION
On July 22, 2013, Complainant filed an appeal from the Agency’s June 17, 2013 final decision
concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et. seq. and Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. § 2000e et. seq. The Commission deems the appeal timely and accepts it
for de novo review pursuant to 29 C.F.R. § 1614.405(a). 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 Disaster
Assistance Employee (DAE) with the Federal Emergency Management Agency (FEMA)
Region IX, located in Oakland, California. On November 17, 2011, Complainant filed an
EEO complaint alleging that the Agency discriminated against her on the bases of race
(Hispanic),1 national origin (Uruguayan), age (46), reprisal,2 and parental status (single
mother)3

when on July 11, 2011, a notice of termination was issued based upon misconduct,
charging Complainant with unauthorized use of a government issued travel card.

1 The Commission usually classifies Hispanic as a national origin, rather than a race.
2 The Agency procedurally dismissed the reprisal claim because Complainant did not
previously engage in prior protected EEO activity. Since the record is devoid of assertions, let
alone evidence, of retaliatory animus, we find insufficient support for this claim on its merits.
3 While “parental status” is prohibited under the Agency’s own anti-discrimination procedures,
it is not a basis enforced by the Commission.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 her to discrimination as alleged.

FACTUAL BACKGROUND
On September 6, 2004, FEMA hired Complainant as a DAE. Complainant’s appointment was
not to exceed January 4, 2005. Complainant’s appointment was subsequently extended five
times with a final not-to-exceed date of March 24, 2012. The documentary and testimonial
evidence shows that employees are prohibited from using their government issued travel card
when not in travel status. In addition, DAEs deployed to disasters are not in “official travel
status” until they receive an official deployment request through FEMA’s automated
deployment database (ADD). Prior to receiving an official deployment request from ADD,
DAEs are prohibited from deploying or using their government issued travel cards.

On July 28, 2009, a chief financial officer bulletin was disseminated to all FEMA employees.
The bulletin advised employees that ATM cash withdrawals taken while not on official travel
are considered abuse of the travel charge card. The record further shows that on September
30, 2009, Complainant completed travel card training. Documentary evidence establishes that
on January 27, 2010, Complainant signed the Agency Travel Charge Card Program
Individually Billed Account Cardholder Agreement. Paragraph three of the agreement states “I
acknowledge that the Travel Charge Card was provided to me as direct result of my
employment with FEMA and agree to use the Travel Charge Card only for authorized
government travel expenses and in accordance with FEMA travel policies and directives.”

Complainant’s last deployment ended on November 12, 2010. The record shows that when not
deployed, DAEs must update their availability status every 30 days. On June 4, 2011,
Complainant called into ADD and changed her deployment availability status to unavailable.
The record shows that Complainant never changed her deployment status back to available.

On June 18, 2011, Complainant used her government issued travel card to withdraw $202.00
in cash from an ATM, incurring an additional $5.05 in fees. On June 25, 2011, Complainant
used her government issued travel card to withdraw $203.00 in cash from an ATM incurring
an additional $5.08 in fees. At the time of both cash withdrawals, Complainant had not
received an official deployment request, was not in travel status, and had not indicated that she
was available for deployment in ADD.

On July 7, 2011, a Program Support Specialist with FEMA Region IX (PSS) left a voice
message on Complainant’s cell phone regarding the June 18, 2011 and June 25, 2011 cash
withdrawals. PSS requested that Complainant return her call immediately. The record shows
that Complainant did not return PSS’s telephone call. On July 11, 2011, the Acting Individual
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Assistance Branch Chief, FEMA Region IX terminated Complainant for unauthorized use of
her government travel card. On July 19, 2011, Complainant appealed her termination to the
Recovery Director, FEMA Region IX (RD). Complainant admitted that she had not received
an official deployment request when she made the June 18, 2011 and June 25, 2011
withdrawals. On August 8, 2011, RD sustained Complainant’s termination.

ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has 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). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. 248, 256
(1981).
It is undisputed that FEMA employees are prohibited from using their government issued
travel card when not in travel status. In order to be in travel status, a DAE first has to receive
an official deployment request from ADD. Complainant admitted that she had not received an
official deployment request from ADD when she used her government issued travel card to
withdraw money from an ATM on June 18, 2011 and June 25, 2011. The record further
shows that Complainant called into ADD on June 4, 2011, and changed her deployment
availability status to unavailable, so she could not have been in travel status when she withdrew
the money. The record, accordingly, supports the Agency’s explanation in concluding that
Complainant violated the Agency’s policy on government travel card usage which was the
basis for her termination.

While Complainant may disagree with her termination, we agree with the Agency that she
failed to present sufficient evidence demonstrating that FEMA’s actions were pretext for
discrimination. Complainant asserts that she was unaware of the policies for proper travel card
use. However, we find this contention to be without merit and directly contradicted by: (1) the
travel card training she took on September 30, 2009; (2) the government travel card agreement
she signed on January 27, 2010; (3) the notices to FEMA employees regarding use of their
government issued travel card; and (4) the warnings she had previously received for misusing
her travel card.

Complainant also argues that her withdrawals of money prior to deployment were common
practice within the DAE cadre. We conclude that the fact that Complainant was violating
Agency policy and getting away with it does not make her conduct acceptable or sanctioned by
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the Agency. Complainant cites to an August 28, 2010 withdrawal of $300.00 she made two
days before her official deployment on August 30, 2010 to support her contention. However,
the record also shows that she falsified her travel voucher when seeking reimbursement for the
August 28, 2010 withdrawal. The record shows that on September 14, 2010, Complainant
falsely stated that she made the $300.00 withdrawal on August 30, 2010, not August 28, 2010.
The record supports the conclusion that if she had told the truth, FEMA would not have
reimbursed her because she was not in travel status when she withdrew the money. The fact
that she felt compelled to falsify the withdrawal date indicates that Complainant was fully
aware that using her government travel card when she was not in travel status was prohibited
and that she falsified a document to hide her misconduct. These facts further demonstrate the
legitimacy of FEMA’s action. Moreover, we find that even assuming that the withdrawal of
money prior to deployment was an accepted practice within Complainant’s region, there is
nothing in the record to support the conclusion that the decision to terminate Complainant was
based upon any of the alleged prohibited bases.

CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, we
AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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.
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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.

RIGHT TO REQUEST COUNSEL

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

Date
May 7, 2015