Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

May 1, 2013

0120102961 (E.E.O.C. May. 1, 2013)

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

,
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120102961

Hearing No. 420-2010-00097X

Agency No. FSIS-2007-01006

DECISION

Complainant filed an appeal from the Agency’s May 27, 2010 final decision concerning his
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, 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 Meat and Poultry
Inspector, GS-7, at the Agency’s work facility in Jackson, Mississippi. On February 11, 2008,
Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against
him on the bases of his race (African-American), sex (male), color (Black), and in reprisal for
his prior protected EEO activity when:

1. On August 17, 2007, he received a Notice of Suspension from the Agency for
failure to make payment on his government credit card and subsequently was
suspended from September 17-22, 2007; and

2. On unspecified dates, the Agency garnished Complainant’s wages and did not
respond to his requests for court-ordered documentation of the garnishment.

In a final decision dated April 21, 2008, the Agency dismissed the complaint on the grounds
that it had not been filed in a timely manner. On appeal, in v. Department
of Agriculture, EEOC Appeal No. 0120082523 (July 15, 2008), we reversed the dismissal and
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remanded the complaint for further processing. At the conclusion of 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 (AJ). 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 Agency stated that Complainant was suspended for five days because payment of his
government credit card was ninety days overdue. Complainant claimed that he was
experiencing financial hardship and could not pay his credit card bill until he was reimbursed
for his travel expenses. Agency policy requires employees to pay the outstanding balance in
full, whether or not the employee has received reimbursement from the Agency for travel
expenses. Complainant argued that other employees were paid up front for travel and that
White employees and female employees were not forced to travel and sustain travel-related
expenses. Complainant maintained that he informed his supervisors he could not travel and
that he was told he would be marked AWOL if he did not travel. However, the Agency
determined that Complainant failed to provide sufficient evidence that other similarly situated
persons outside his protected classes were treated more favorably.

The Agency noted that Complainant claimed that his wages were garnished without a court
order and that the Agency did not provide him with advance notice that funds would be
withdrawn. The Agency, however, stated that Complainant does not dispute that he owed the
money and that he was afforded prior notice of the garnishments. Specifically, according to
the Agency, the state of Illinois issued an administrative order to the Agency for the collection
of delinquent child support payments. Complainant was informed in a letter dated October 16,
2006, of an order withholding child support.

Further, according to the Agency, on November 21, 2006, Complainant and the Agency
entered into a settlement agreement of a previously filed EEO complaint. The Agency stated
that Complainant was notified in a letter dated January 9, 2007, that he had received an
overpayment from the Agency via direct deposit. Complainant was erroneously paid for forty
hours of annual leave for which he had already been compensated. The Department of the
Treasury notified Complainant of its intention to intercept any federal payments owed to him to
satisfy his debt obligations, via the Treasury Offset Program. The Agency determined that
Complainant failed to prove that it subjected him to discrimination as alleged. Thereafter,
Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

We shall assume arguendo that Complainant set forth a prima facie case of discrimination
under each of the alleged bases with regard to each claim. As to claim (1), the Agency
explained that Complainant was suspended for five days because he was ninety days overdue in
paying off his government credit card. With regard to claim (2), an Employee Relations
Specialist stated that she explained to Complainant that the offset and withholding were for the
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purpose of allowing the government to recover funds owed to it. We find that the Agency
articulated legitimate, nondiscriminatory reasons for the actions at issue.

With regard to the contentions presented by Complainant to establish pretext, Complainant
stated that he was aware of only one other employee, an African-American female, who was
suspended for credit card abuse. The Employee Relations Specialist stated that she was aware
of one other employee (female, race unknown) who was disciplined for similar conduct. The
Employee Relations Specialist further stated that this employee received a two-day suspension
after being delinquent for sixty days, but that unlike Complainant, she had no prior disciplinary
infractions. According to the Employee Relations Specialist, it is government policy to repay a
credit card account whether or not an employee’s travel voucher has been processed.
Complainant has not submitted evidence to support his contention that personnel outside his
protected groups received money up front for travel. Complainant also has not presented
evidence to bolster his argument that White employees and female employees were not
required to travel and sustain travel-related expenses. We find that Complainant has not
established that the Agency’s explanation for his suspension was pretext intended to mask
discriminatory intent.

With regard to claim (2), Complainant does not deny that he owed the debts at issue.
Complainant had received an overpayment from the proceeds of a settlement agreement and
had been notified that he was delinquent in child support payments. We find that Complainant
has not offered any persuasive argument or evidence that the matters raised in claim (2) were
attributable to discriminatory intent.

CONCLUSION

The Agency’s determination in its final action that no discrimination occurred is AFFIRMED.

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
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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.
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:

______________________________ May 1, 2013
Carlton M. Hadden, Director Date
Office of Federal Operations