0320120048
09-05-2012
Tracey Davis, Petitioner, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Tracey Davis,
Petitioner,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320120048
MSPB No. DC0752100830I1
DECISION
On August 29, 2011, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
ISSUE PRESENTED
The issue presented is whether the decision of the MSPB, with respect to Petitioner's allegation of race, sex, age, and reprisal discrimination, constitutes a correct interpretation of any applicable law, rule, regulation, or policy directive, and is supported by the evidence in the record as a whole.
BACKGROUND
At the time of events giving rise to her appeal, Petitioner worked as a Mathematical Statistician, at the Agency's Naval Safety Center in Norfolk, Virginia. Petitioner alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), age, and reprisal for prior protected EEO activity under Title VII and the ADEA when: on May 5, 2010, the Agency placed Petitioner on administrative leave and proposed her removal based on misuse of her government travel card.
A review of the record indicates that on March 26, 2008, the Agency terminated Petitioner based on misconduct during her probationary period. Her appeal to the MSPB was dismissed for lack of jurisdiction due to her probationary status. She filed a Petition for Review to the full Board, which was denied on October 29, 2008. The Petitioner appealed to the U.S. Court of Appeals, and the Court determined that her cumulative service in another federal position should be applied to her probationary period. Accordingly, the Agency was ordered to restore the Petitioner effective March 27, 2008.
Following the restoration action, the Agency placed Petitioner on administrative leave and again proposed her removal on May 5, 2010 based on the misuse of her government travel card.1 After granting Petitioner the option to respond to its notice of proposed removal, the Agency issued a final decision removing Petitioner from her position effective July 23, 2010. Petitioner appealed this decision to the MSPB on August 20, 2010.
A hearing was held on November 2, 2010, and thereafter an MSPB Administrative Judge (AJ) issued an initial decision affirming the Agency's removal. The AJ found that Petitioner failed to meet her burden to establish that the Agency discriminated against her on the bases of race, sex, age, or retaliation for her participation in prior EEO activity.
In finding no discrimination on the bases of race, sex, or age, the AJ found that Petitioner failed to provide any information to support her allegations, as well as, failed to identify a comparative employee to support her claim that she was treated more differently than any employee who was not a member of her protected group. With respect to the AJ's finding of no reprisal discrimination, the AJ determined that Petitioner failed to establish a prima facie case. Specifically, the AJ found that Petitioner failed to establish a causal connection between her prior protected activity and the removal.
Petitioner sought review of the initial decision sustaining her removal by the full Board. The Board denied Petitioner's request for review stating that she presented no new, previously unavailable evidence which warranted consideration by the Board. Additionally, the Board found that the AJ made no error in law or regulation which affected the outcome. Petitioner then filed the instant petition.
In her petition, Petitioner contends that the government credit card application was misleading as it did not include any specific language indicating that the card was to be used for "Government Travel Only." Additionally, Petitioner reiterates her argument that two White males received a lesser sentence for misuse of their government credit cards. With respect to her reprisal allegation, Petitioner alleges that the Agency decided to terminate her immediately following the Court of Appeals decision ordering her reinstatement. Petitioner alleges that the decision was made before she was issued a notice of proposed removal.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
Upon review of the record, we concur with the MSPB AJ's decision that Petitioner did not establish that the Agency's actions constituted race, sex, age, or reprisal discrimination. Assuming arguendo, that Petitioner established a prima facie case of discrimination on all of these alleged bases, the Agency articulated a legitimate, non-discriminatory reason for Petitioner's removal, namely Petitioner's misuse of a government credit card. Additionally, we agree with the MSPB AJ that Petitioner failed to establish that the Agency's reason was a pretext for unlawful discrimination.
Petitioner acknowledges that she made the unauthorized charges identified in the amended notice of proposed removal. Petitioner also acknowledged that she made payments on the balance of the government credit card. Petitioner's only claim is that she was unaware that the credit card was to be used "exclusively for government travel." Like the AJ and the full Board, we find that Petitioner failed to present any persuasive evidence which establishes that the individuals whom she identified as having also misused a government credit card and who received "lesser punishments than [her]," were similarly situated to her. While Petitioner may feel that she was treated unfairly, it does not appear that the decision to terminate her was discriminatory. We note that neither Title VII, nor the ADEA protect against unfair or unwise business decisions, only against decisions motivated by unlawful discriminatory animus. See Baum v. Dep't of Homeland Security, EEOC Appeal No. 0120110333 (Jan. 19, 0212); Tawil v. Dep't of Homeland Security, EEOC Appeal No. 0120102347 (June 12, 2012).2
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to concur with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
___9/5/12_______________
Date
1 On May 13, 2010, the Agency issued an amended proposal notice to the Petitioner identifying each instance of misuse under a separate specification under the charge. The amended noticed cited the following instances of misuse: (1) On November 19, 2007 Petitioner purchased an unauthorized Airtran airline ticket in the amount of $353.60 for another person; (2) on December 19, 2007, Petitioner purchased an unauthorized Airtran airline ticket in the amount of $384.60 for herself; (3) on December 27, 2007, Petitioner purchased an unauthorized Delta airline ticket in the amount of $299.97 for another person, with an additional unauthorized purchase from Delta Airline in the amount of $20.00 on the same date; (4) on January 14, 2008, Petitioner purchased an unauthorized Southwest airline ticket for herself in the amount of $113.00; (5) on January 21, 2008, Petitioner purchased an unauthorized Southwest airline ticket in the amount of $226.50 for another person; (6) on January 23, 2008, Petitioner made an unauthorized purchase from Southwest Airline in the amount of $72.00; (7) on February 4, 2008, Petitioner made an unauthorized withdrawal of $402.00, which resulted in an additional fee of $12.06 for a regular cash advance; (8) on February 10, 2008, Petitioner made an unauthorized ATM withdrawal of $42.00, and was charged a regular cash advance fee of $2.00; (9) on January 27, 2008, Petitioner attempted to make an unauthorized purchase from Blockbuster video, but the transaction was unsuccessful; (10) on February 2, 2008, Petitioner attempted to purchase movie tickets from a Regal Cinema in Virginia Beach, but the card was declined; (11) on February 4, 2008, Petitioner attempted to make a purchase in the amount of $500.00 at Gallumbeck Plastic Surgery, but the card was declined.
2 With regard to Petitioner's contention that the Agency initiated removal action after the Court of Appeal ordered her reinstatement, we find that although this is chronologically accurate, it does not indicate that she was retaliated against. The charges brought by the Agency in support of her removal are the same misuse of government credit card allegations that were originally raised prior to her March 2008 removal.
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0320120048
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320120048