[Redacted], Glenna O., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 31, 2022

Appeal No. 2021002404 (E.E.O.C. May. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Glenna O.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021002404 Hearing No. 420-2020-00170X Agency No. ARREDSTON19JUL02922 DECISION On March 11, 2021, 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 9, 2021 final order concerning her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Safety Engineer, GS-0803-13, at the Agency’s Land Combat Branch of the Missile System Safety Engineering Division in the Safety Office Aviation and Missile Command in Redstone Arsenal, Alabama. On September 12, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), color (Black), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on June 14, 2019, Complainant’s request for preauthorized overtime was denied by her supervisor. 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. 2021002404 2 The Agency accepted this claim and conducted an investigation into the matter. As noted, Complainant was employed as a Safety Engineer in the Agency’s Safety Office. She testified her race is African American, her color is Black, and her sex is female. The investigation showed Complainant had previously filed an EEO complaint (ARREDSTON18JUN02354) in approximately June 2018. Complainant initially identified the party responsible for the discrimination as her immediate supervisor (“Supervisor”) (white male). However, she later testified that both Supervisor and her second level supervisor, Chief of the Safety Office (“Chief”) (white female), were responsible for the discrimination and retaliation against her. Complainant’s claim involved denial of an overtime request. The Safety Office approval process for paid overtime (“OT”) and compensatory time (“comp time”) required employees to prepare and submit an OT request form (SAM Form 1029E) to their immediate supervisor, who would review the request and the justification for needing overtime. If the supervisor agreed with the request, the supervisor would sign and forward request to Chief for approval. All requests had to be approved prior to an employee working OT or comp time. Complainant had used this procedure to obtain OT approval on February 13 and 25, 2019, for a total of 38 hours of overtime. However, on March 1, 2019, Supervisor emailed his group to inform them their office was under scrutiny from the Command group about the amount OT used in the last year so he would be significantly limiting the amount of overtime approved in the future. He stated that “all justifications will have to be tied to specific outcomes that require the use of OT. An example of an acceptable use of OT would be to support a test event where the workdays are 12 hours. An example of an unacceptable use OT would be to support an activity that is not mission and time critical.” (ROI, p. 94). On June 12, 2019, Complainant emailed Supervisor and Chief with the subject line “OT Preauthorization request to support TMDE additional workload increase to support rapid acquisition request to IPT member to expedite tasks.” In the email, Complainant asked about submitting an “overtime request form when the customer expedited needs for several programs among other assignment justify the request.” She indicated in the email that OT was needed to support multiple rapid acquisition schedules. (ROI, pp. 95-96). Complainant later testified that she was seeking to submit an overtime request for a safety health datasheet that was completed in mid-July. On June 14, 2019, Supervisor responded to Complainant’s email and stated that he could support the use of comp time for “specific tasks, but the justification will be to be very specific to get it approved.” (ROI, p. 95). Complainant testified she did not put in a request for OT or comp time after receiving this email. The record reflects Complainant never submitted an OT or comp time request form requesting OT or comp time for June 2019. She testified that she felt doing was would put her in danger of disobeying directions from Supervisor. Complainant did not follow up with Supervisor, Chief, or any other management official regarding her June 12, 2019 email or Supervisor’s June 14, 2019 response. 2021002404 3 Supervisor indicated he assumed Complainant had not needed additional time to complete her work since she did not submit an OT or comp time request or follow up with him. Supervisor indicated that after the pay period ending March 2, 2019, he rejected multiple paid OT requests from other employees. He stated that the only paid OT approvals were for test events and solider verification/validation where works times and day were not under their control and where the number of hours made comp time impractical. However, he stated that the use of comp time was also limited and only approved for tasks that were high priority and short suspense. Complainant testified that she believes the March 1, 2019 email about OT meant that mission and time critical requests should be approved, and OT should not be limited to only TDY needs. Complainant testified she was harmed by not getting OT because it caused her stress and elevation in her hemoglobin A1c, she felt devalued as an employee, and she was not getting the same support as other employees. Complainant testified that a number of employees were authorized for lots of overtime and she indicated that several of these employees have close relationships with Chief and she felt they were favored employees. However, she also felt that Caucasian males got the majority of the overtime in the office. Complainant testified her race was a factor in being denied overtime because she has education and diverse experience so the only reason for her not be getting overtime is the color of her skin. She testified she believes her sex was a factor because females in the office do not get as many privileges. Complainant testified she believes her prior EEO activity was a factor because overtime had been discussed in her prior case and at that time Supervisor indicated Complainant rarely asked for overtime, and also because she had a conversation with Chief shortly before the March 1, 2019 email was sent in which Chief informed Complainant that Chief’s position does not get overtime. Chief testified that only the Missile division of the Safety Office gets paid OT because of the way funding is structured. She testified that comp time is also closely watched. She stated that the Land Combat group was fully staffed, but the other divisions of the Safety Office were 40% vacant, which made it difficult for them to take comp time. Chief testified that she is the final approval authority for overtime requests involving less than 64 hours per pay period. She stated she has had employees come to her in the past when Supervisor did not approve their overtime. She stated that in those cases she would authorize comp time if the justification was there, but often the justification was part of their regular job duties so she would help them adjust their priorities instead. Chief denied that Complainant’s race, sex, or prior EEO activity were factors in overtime not being approved. The record reflects that no Safety Office employees received overtime for the pay periods ending June 8, 2019 or June 22, 2019 (the pay periods surrounding Complainant’s email). The only overtime approved in April, May, or June 2019 was for employees in TDY status, none of whom were in the Land Combat group. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. 2021002404 4 Over Complainant's objections, the AJ assigned to the case granted the Agency’s January 5, 2021 motion for a decision without a hearing and issued a decision by summary judgment on January 1, 2021. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination or retaliation as alleged. Complainant filed the instant appeal. On appeal, Complainant contends the AJ made an erroneous interpretation of material facts that were presented by Complainant. She states that her response to the Agency’s Motion for Summary Judgment provided comparative evidence of facts and the Agency’s reasons for not granting overtime were grossly inaccurate and some were fictitious. Therefore, the AJ should not have granted summary judgment because there were genuine issues of material fact. Among other things, Complainant contends she is the only African American female safety engineer and that only employee who was required to submit a preauthorized request for overtime pay for “mission time critical tasks.” Complainant argues that Chief’s testimony of her support for others with mission time critical assignments “proves disparate/bias (interference) discrimination.” Complainant contends that Supervisor and Chief engaged in unlawful retaliatory behavior in June 2019 shortly after they were directed to produce the Agency case file in Complainant’s prior EEO matter (ARREDSTON18JUNE02354). Complainant asserts she provided detailed ongoing mission time critical related tasks justification on June 12, 2019, but Supervisor and Chief minimized her justification and treated her differently from other employees by not adhering to the March 1, 2019 email which states that examples of unacceptable uses of OT would be support for activities that are not mission and time critical. She argues that Chief’s testimony shows other employee working non rapid acquisition work and employees working mission time critical tasks did get overtime. She states that an evaluation of the overtime report shows that African American employees and females are not awarded overtime at the same rate as Caucasian males. The Agency contends on appeal that Complainant has not presented any new or material evidence in her appeal that was not readily available when the previous decision was issued and which presents a basis in law or fact to reverse the final agency action. The Agency asserts that Complainant has no direct or indirect evidence of discriminatory motive by the Agency apart from conjecture. Therefore, the final agency action finding no discrimination should be affirmed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. 2021002404 5 The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, although Complainant has attempted to specify the facts she believes are in dispute, we find that Complainant’s proffered disputed facts are her opinion and not facts; or are not material or in dispute. As such, the AJ’s issuance of a decision without a hearing was appropriate. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Disparate Treatment Complainant’s allegations give rise to claims of disparate treatment. A claim of disparate treatment, such as this one, is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). To establish a prima facie case of disparate treatment on the bases of race, color, and/or sex, Complainant must show that: (1) he is a member of a protected class, (2) he was subjected to an adverse employment action concerning a term, condition, or privilege of employment, and (3) he was treated differently than similarly situated employees outside his protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. Nanette T. v. U.S. Postal Serv., EEOC Appeal No. 0120180164 (March 20, 2019); McCreary v. Dep't of Def., EEOC Appeal No. 0120070257 (April 14, 2008), Saenz v. Dep't of the Navy, EEOC Request No. 05950927 (Jan. 9, 1998). A complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected 2021002404 6 activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant must show that the agency's action was more likely than not motivated by discrimination, that is, that the action was influenced by legally impermissible criteria. Burdine, 450 U.S. at 253; Baker v. U.S. Postal Serv., EEOC Petition No. (May 13, 1999). Absent a showing that the agency's articulated reason was proffered to mask discrimination, complainant cannot prevail. Burdine, 450 U.S. at 256; Crosland v. Dep’t of the Army, EEOC Petition No. 03990018 (July 1, 1999); Mongere v. Dep’t of Defense, EEOC Appeal No. 01970738 (March 18, 1999). Complainant has failed to prove her prima facie case because she has not shown she was subjected to adverse action by the Agency in this instance. Complainant conceded she did not submit a formal request for overtime or comp time in connection with her June 12, 2019 email. Therefore, her request for overtime was not denied and she was not subjected to an adverse action. However, even assuming arguendo, Complainant has proved her prima facie case of race, color, sex, and reprisal discrimination, the Agency has articulated legitimate, non-discriminatory reasons for its actions. Supervisor informed his entire group on March 1, 2019 that OT and comp time would be heavily curtailed going forward after. After that email, Complainant informally requested overtime via email. She was informed that her request would be considered for comp time with specific justification. However, Complainant declined to submit a formal request for either overtime or comp time. Complainant has failed to show that the Agency’s articulated legitimate, non-discriminatory reasons for its actions are pretext for discrimination. The record is absolutely devoid of any evidence of discriminatory animus on the part of the Agency beyond Complainant’s speculative beliefs and conjecture. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep't of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). Complainant asserts she was the only employee required to obtain preauthorization for overtime but she has not provided any evidence to corroborate her statements that she was actually required to do so. In any event, the record shows Complainant had two overtime requests approved in February 2019, prior to the curtailment of overtime for the Safety Office, but well after she filed her prior EEO complaint in June 2018. 2021002404 7 She contends the denial of overtime in the instant complaint occurred shortly after Supervisor and Chief were required to provide documentation for that prior EEO case. However, the record reflects that no Safety Office employees received overtime for the pay periods ending June 8, 2019 or June 22, 2019 (the pay periods surrounding Complainant’s email). The only overtime approved in April, May, or June 2019 was for employees in TDY status, none of whom were in the Land Combat group. Absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Texas v. Dep't of Community Affairs v. Burdine, 450 U.S. 248, 249 (1981). Therefore, we find Complainant has failed to establish discrimination or unlawful retaliation as alleged. 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 order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2021002404 8 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (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. 2021002404 9 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 May 31, 2022 Date