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

Equal Employment Opportunity Commission

Feb 3, 2022

Appeal No. 2020003885 (E.E.O.C. Feb. 3, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clayton S.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020003885 Hearing No. 420-2018-00046X Agency No. ARREDSTON15NOV04339 DECISION On June 9, 2020, Complainant prematurely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a June 3, 2020 EEOC Administrative Judge’s (AJ) decision on his equal employment opportunity (EEO) complaint of 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The appeal was perfected when the Agency adopted the AJ’s decision in its June 17, 2020 final action. 29 C.F.R. § 1614.403(a), BACKGROUND At the time of events in this complaint, Complainant was employed by the Agency as a General Engineer, DB-0801-03 in the Defense Advanced Research Projects Agency (DARPA) Programs Office, Small Business Team, part of the Weapons Development Integration Directorate inside the Aviation and Missile Research Weapons Development and Engineering Center in Redstone Arsenal, Alabama. 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. 2020003885 2 On March 9, 2016, Complainant filed an EEO complaint alleging the Agency discriminated against him based on race (Black), age (73), and reprisal for prior protected EEO activity under Title VII and the ADEA when in 2015, he learned he was excluded from participating in the expansion and implementation of the Small Business Innovative Research program contract with a private contractor entitled “Revolutionary Advances in Large Scale Manufacturing in Quantities of One” for DARPA’s Adaptive Vehicle Make, a significant contract project he developed and managed as a Contract Officer Representative (COR). The Agency accepted the complaint and conducted an investigation. The investigation revealed that in 2010, Complainant was assigned as the Phase I Project Manager/Technical Monitor on the newly awarded contract above. Phase I is the incubator stage for research that looks promising. The private contractor successfully completed Phase I, and in 2011, moved to Phase II. Complainant was designated the Phase II COR. Phases I and II were under the auspices of and funded by DARPA’s Small Business Innovative Research program. Around 2015, the private contractor’s project completed Phase II and joined the Digital Manufacturing and Design Institute in Chicago, Illinois, a consortium of 73 companies, universities, nonprofits, and research labs working to transition technologies to the domestic industrial base for full-scale application. The Army Aviation and Missile Research Development and Engineering Center at Redstone, Arsenal managed the Institute. As noted, Complainant worked in the Weapons Development Integration Directorate in this Center. A sister Directorate in the Center was the Engineering Directorate. Its Manufacturing Technology Group was charged with program manager responsibilities for manufacturing technology. Around the time the private contractor with its project joined the Institute, the oversight of it moved from Complainant to the Center’s Engineering Directorate. After the Agency completed the EEO investigation, Complainant requested a hearing before an EEOC AJ. The AJ found the complaint did not warrant a hearing, and by summary judgment made a decision without a hearing finding no discrimination. The AJ found that when Complainant oversaw the private contractor’s project for the Small Business Innovative Research program, he made significant contributions to its development of innovative technology. But the AJ found no reasonable fact-finder could find Complainant was excluded from the project - instead it moved from him in the routine course after the private contractor with its project joined the Institute in Chicago. The Agency’s final action adopted the AJ’s decision. The instant appeal followed. 2020003885 3 ANALYIS 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. 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. 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 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). He must generally 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. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). The Director, Weapons Development and Integration Directorate, Complainant’s fourth line supervisor (“S4” - Black, age 53) explained that the private contractor’s project moved from Complainant to the Engineering Directorate’s Manufacturing Technology Group because they do the program support for manufacturing technology. 2020003885 4 On June 19, 2015, the Associate Director, Weapons Development Integration Directorate, Complainant’s third line supervisor (“S3”) replied in response to a grievance by Complainant on a matter related matter that his Directorate does not manage the Institute in Chicago, another Directorate does, and he met with the Engineering Directorate to get the details so he could respond to Complainant. On appeal, Complainant argues that he should have continued to oversee the private contractor’s project - where it was “birthed”. He argues it is incongruous that he remained the designated COR on the private contractor’s project to April 2016, yet the project was moved from him in 2015. Complainant’s first line supervisor (“S1” - white, around age 58) explained the contract was extended for a year because Complainant wanted to keep the private contractor’s project contract alive in his shop in hopes of bringing in more money by adding work, but no additional funding was brought into the office for the contract. This is confirmed by documentation Complainant submitted showing that in fiscal year (FY) 2013 total funds received on the contract was $356,821, in FY 2014, $356,900, and in FY 2015 zero dollars. This, and other arguments Complainant made below, do not detract from the Agency’s explanation that oversight of the project moved from Complainant to the Engineering Directorate because the private contractor with its project joined the Institute, and the Engineering Directorate does the program support for manufacturing technology. This is consistent with Complainant overseeing the project in its early developmental stages until it advanced closer to the manufacturing stage and joined the Institute whose mission is to transition technologies to the domestic industrial base for full-scale application. Complainant may not have agreed with this decision, but he produced no evidence whatsoever that the action was motivated in anyway by discriminatory factors. CONCLUSION The Agency’s final action is AFFIRMED because Complainant did not prove discrimination on any basis. 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. 2020003885 5 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. 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. 2020003885 6 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 February 3, 2022 Date