DECISION OF THE BOARD OF DIRECTORS
This case is before the Board of Directors (Board) pursuant to a petition filed by the appellant, Janice Aiken, which seeks review of the Hearing Officer’s Order granting summary judgment in favor of her employing office, the Library of Congress (Library), on her claims of discrimination based on race and color. Upon due consideration of the Hearing Officer’s Order, the parties’ briefs and filings, and the record in these proceedings, the Board affirms the Hearing Officer’s Order.
I. Background and Procedural History
Except as indicated below, the following facts are undisputed: The appellant, an African American female, has worked at the Library since 1981. She has been working in her current position as a Contract Specialist in the Library’s Federal Library and Information Network (FEDLINK) division’s Contracts Section since approximately 1994. As a Contract Specialist, her duties include issuing and approving contracts for the Library. Laurie Neider, a white female, was Executive Director of FEDLINK since April 1, 2018, and was the appellant’s acting supervisor from approximately May 9 to September 29, 2019. From approximately September 30 to December 31, 2019, the appellant worked under the direct supervision of Clare Sanchez, Supervisory Contract Specialist, and Ms. Neider was the appellant’s second-level supervisor.
The appellant, proceeding pro se, filed a narrative claim with the OCWR alleging that the Library discriminated against and harassed her on the basis of race and color when Neider: failed to compensate the appellant for additional hours she worked on September 28-29, 2019; denied her permission to work additional hours while granting permission to similarly-situated colleagues;1 treated her less favorably than similarly-situated colleagues concerning requests to work additional hours; declined to raise her signature authority for her warrant2 for government contracts from $150,000 to $250,000; did not approve her request to attend training in December 2019;3 and subjected her to a hostile work environment.
After completion of discovery, the Library filed a motion for summary judgment on all of the appellant’s claims. In the motion, the Library contended that the appellant could not establish a prima facie case of discrimination based on race or color because she could not demonstrate that she suffered any adverse action in connection with her claims regarding working additional time or her signature authority, and because the undisputed facts demonstrated that she had not been subjected to a hostile work environment. The Hearing Officer thereafter issued a decision granting the Library’s motion, finding that the appellant had failed to designate specific facts showing that there was a genuine issue for hearing and that the Library was entitled to judgment as a matter of law.
The appellant has timely filed a petition for review (PFR) of the Hearing Officer’s Decision, and the Library has filed an opposition thereto. For the reasons set forth below, we deny the appellant’s PFR.
II. Standard of Review
The Board’s standard of review requires it to set aside a Hearing Officer’s decision if it determines the decision to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not consistent with the law; (2) not made consistent with required procedures; or (3) unsupported by substantial evidence. 2 U.S.C. § 1406(c); Rouiller v. U.S. Capitol Police, Case No. 15-CP-23 (CV, AG, RP), 2017 WL 106137, at *6 (Jan. 9, 2017). In making determinations under subsection (c), the Board shall review the whole record, or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. 2 U.S.C. § 1406(d).
III. Summary Judgment Standard
We review a decision granting a motion for summary judgment de novo. Torres-Velez v. Office of the Architect of the Capitol, No. 17-AC-36 (FL, RP, CV), 2019 WL 10784232, at *4 (OCWR Sep. 23, 2019); Patterson v. Office of the Architect of the Capitol, No. 07-AC-31 (RP), 2009 WL 8575129, at *3 (OOC Apr. 21, 2009). Summary judgment is appropriate if there are no genuine issues of material fact, and the movant is entitled to summary judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); OCWR Procedural Rule 5.03(d). In determining whether the nonmoving party has raised a genuine issue of material fact, the Board must view the evidence in the light most favorable to the nonmoving party and must draw all reasonable inferences in that party’s favor. U.S. Capitol Police & Lodge 1, FOP/U.S. Capitol Police Labor Comm., No. 16-LMR-01 (CA), 2017 WL 4335144, at *3 (OOC Sep. 26, 2017); see also Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).
To defeat a motion for summary judgment, the non-moving party must “designate specific facts showing that there is a genuine issue for trial,” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986), and the moving party can establish its entitlement to judgment by showing the lack of evidence to support the non-moving party’s case, Conroy v. Reebok Int’l, 14 F.3d 1570, 1575 (Fed. Cir. 1994); Eastham v. U.S. Capitol Police Bd., No. 05-CP-55 (DA, RP), 2007 WL 5914213, at **3-4 (OOC May 30, 2007) (affirming summary judgment when complainant “failed to proffer evidence” that would permit the inference of unlawful conduct required to establish complainant’s prima facie case). The non-moving party is required to provide evidence in support of her claims, not merely assertions, allegations, or speculation. See Solomon v. Architect of the Capitol, No. 5 02- AC-62 (RP), 2005 WL 6236948, at *8 (OOC Dec. 7, 2005) (holding that at the summary judgment stage, claims must be supported by evidence, which distinguishes a decision on a motion for summary judgment from a decision on a motion to dismiss). However, neither this Board nor the Hearing Officer may make credibility determinations or weigh the evidence. See Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 296 (D.C. Cir. 2015).
IV. Analysis
Section 201 of the Congressional Accountability Act governs employment discrimination claims. It provides, in relevant part, that all personnel actions affecting covered employees shall be made free from any discrimination based on (1) race, color, religion, sex, or national origin within the meaning of section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2). 2 U.S.C. § 1311(a).
In the absence of direct evidence of discrimination, the courts analyze Title VII claims under the procedural framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under this framework, the claimant must first establish a prima facie case of discrimination by showing that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the action gives rise to an inference of discrimination. Rouiller v. U.S. Capitol Police, No. 15-CP-23 (CV, AG, RP), 2017 WL 106137, at *8 (OOC Jan. 9, 2017) (citing Udoh v. Trade Ctr. Mgmt. Assoc., 479 F. Supp. 2d 60, 64 (D.D.C. 2007)). If the employee meets this burden of production, “[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason” for its action. Id.
Once the employer has done so, the presumption of discrimination “simply drops out of the picture,” and “the sole remaining issue is discrimination vel non.” Mastro v. Potomac Elec. Power Co., 447 F.3d at 854. At that point, the Court must assess whether “a reasonable [fact finder] could conclude from all of the evidence that the adverse employment decision was made for a discriminatory reason.” See Holcomb v. Powell, 433 F.3d at 896-97 (quoting Burke v. Gould, 286 F.3d 513, 520 (D.C. Cir. 2002), and Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003)). “All of the evidence” that the Court must consider at that point may include: (1) evidence establishing the plaintiff’s prima facie case; (2) evidence attacking the employer’s proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff, such as independent evidence of discriminatory statements or attitudes on the part of the employer. Mastro, 447 F.3d at 855; Holcomb, 433 F.3d at 897. The ultimate burden of proving discrimination, however, always remains with the employee. See Evans v. U.S. Capitol Police Bd., No. 14-CP-18 (CV, RP), 2015 WL 9257402, at *7 (OOC Dec. 9, 2015).
A. Prima Facie Case of Disparate Treatment Discrimination
There is no dispute that the appellant, an African American, is a member of a protected class. Of particular relevance to her claims in this case is the initial adverse employment action requirement described above, which an employee satisfies by identifying “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)); Hill v. Garland, 2021 WL 965624, at *6 (D.D.C. Mar. 15, 2021).
As discussed above, the Library asserted, and the Hearing Officer agreed, that the appellant had failed to establish her prima facie case because neither her contentions concerning working extra hours nor her contentions concerning raising her signature authority for her warrant would permit a reasonable finder of fact to conclude that she suffered an adverse employment action. For the reasons that follow, we agree with the Hearing Officer that the appellant’s contentions concerning her signature authority for her warrant and working additional hours, construed in the light most favorable to her, would not permit a conclusion that she established a prima facie case under McDonnell Douglass.
1. Warrant Signature Authority
The appellant testified in her deposition that in 2016, her signature authority for her warrant was set at $150,000. In 2019, the dollar amount used for a contracting methodology changed from $150,000 to $250,000. However, because the appellant was still certified at the $150,000 level, and although she produced documents and contracts above $150,000, she stated that she could not sign them.
The Board agrees with the Hearing Officer that these contentions, if true, do not qualify as adverse actions, as the appellant does not connect them to any “materially adverse consequences” affecting the conditions of her employment or establishing objectively tangible harm. Czekalski v. LaHood, 589 F.3d 449, 454 (D.C. Cir. 2009) (stating that the threshold is met only if the employee “experiences materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm”). The appellant acknowledged that she was able to perform all of her duties with her current certification and that she was not penalized for not having a larger signature authority; her salary was not impacted; her performance evaluation was not affected; she was not harmed by not having a higher level of certification; and she did not seek a higher level of certification.
Even assuming for the sake of argument the appellant’s contentions concerning her signature authority for her warrant could permit a reasonable finder of fact to conclude that she suffered an adverse employment action, that action does not give rise to an inference of discrimination under McDonnell Douglas.
The appellant testified during her deposition that a co-worker, MB, had the same level certification as she did, but MB had authority to sign documents up to $1 million. As a result, MB signed 10 of the orders that the appellant had completed. A plaintiff can support an inference of discrimination by citing the employer’s better treatment of similarly situated employees outside of the plaintiff’s protected group. Walker v. Johnson, 798 F.3d 1085 (D.C. Cir. 2015). Factors that bear on whether someone is an appropriate comparator include the similarity of the employee and the putative comparator’s job and job duties. Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 2015); Torres-Velez v. Office of the Architect of the Capitol, 2019 WL 10784232 (OCWR 2019).
The question of whether employees are similarly situated ordinarily presents a question for the finder of fact. Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1115 (D.C. Cir. 2016); George v. Leavitt, 407 F.3d 405 (D.C. Cir. 2005). For purposes of establishing a prima facie case, however, the appellant “need not show identical circumstances with [their] comparator in all pertinent respects. It suffice[s] to show that the plaintiff[s] and the comparator were ‘similarly situated in all material respects—not in all respects.” Johnson v. U.S. Cap. Police Bd., No. 03-00614, 2005 WL 1566392, at *3 (D.D.C. July 5, 2005) (quoting Willingham v. Ashcroft, 226 F.R.D. 57, 62 (D.D.C. 2005); see also Anderson v. WBMG-42, 253 F.3d 561 (11th Cir. 2001) (plaintiffs similarly situated to comparator when they “fell within the primary responsibility of one middle manager and the same supervisory chain of command.”)
Here, it is undisputed that MB worked under a different position description and at a different pay level than the appellant. The appellant proffered no evidence that would permit a finding that they were similarly situated in all material respects. Under these circumstances, even assuming that the appellant suffered a materially adverse employment action, we agree with the Hearing Officer that the appellant failed to proffer evidence, which, if true, would permit a reasonable finder of fact to conclude that she and MB were similarly situated, or that race accounted for any difference between the level or amount of the appellant’s and MB’s signature authorities. Thus, the Hearing Officer properly granted the Library’s motion for summary judgment on the appellant’s claims concerning her signature authority for her warrant.4
2. Working Additional Hours
As with the appellant’s claims concerning her signatory authority, the Library contends that her claims regarding extra hours worked did not permit a finding that she suffered an adverse employment action under McDonnell Douglas. The appellant, on the other hand, contends that the undisputed evidence in the record shows that the Library, through Neider, engaged in a pattern of preferential treatment for non-African American employees concerning requests to work additional hours that amounted to unlawful disparate treatment based on race and color.
It is undisputed that the appellant’s position is exempt from the overtime provisions of the Fair Labor Standards Act (FLSA), and that it is included in the AFSCME 2910 (Guild) bargaining unit. Article 23 of the CBA between the Guild and the Library specifically addresses credit hours for authorized work performed by an employee in excess of his/her regularly scheduled tour of duty. It provides that:
Credit hours are given for authorized work performed by an employee in excess of his/her regularly scheduled tour of duty on any workday in order to vary the length of a subsequent workday. Such work is compensated by an equal amount of time off (i.e., one (1) hour of work in excess of the employee’s regularly scheduled tour of duty is compensated by one (1) hour off on a subsequent workday.) Work performed for credit hours is differentiated from overtime work, which is ordered or directed by management in excess of the employee’s basic hours.5 Work performed for credit hours is not compensated as, nor is it subject to the rules and regulations governing, overtime work.
In addition, the CBA provides that employees may only earn credit hours in an “initial increment of thirty (30) minutes, and then in fifteen (15) minutes increments.” It is also undisputed that, at all relevant times, employees were required to request approval to work additional hours from Neider in advance.
In her Decision granting the Library’s motion for summary judgment, the Hearing Officer stated that the appellant claimed to be owed, because of race discrimination, 2 hours for work performed on September 12, 2019; one half hour for work performed on September 18, 2019; and 1½ hours for work performed on September 26, 2019, for a total of four hours. With respect to these allegations, the Hearing Officer concluded that the appellant did not sustain an adverse action within the meaning of the law because she adduced no evidence to show that her failure to be compensated for work performed on those dates amounted to a “tangible change in the duties or working conditions constituting a material employment disadvantage.”
Under the circumstances of this case, we agree.6 On each of these dates, it is undisputed that Neider had authorized the appellant to work 2 additional hours, that the appellant worked beyond those authorized 2 hours, and that she did not at any point submit a request for authorization or compensation for those additional hours. The appellant was therefore not subjected to any management decision, let alone one that could constitute an adverse employment action under McDonnell Douglas. The appellant also contends that on approximately 32 occasions, she worked additional time totaling approximately 24 hours without requesting any approval or notifying anyone that she worked additional time, contrary to the CBA and Library policy. Again, because there is no evidence in the record that the Library made a personnel decision concerning these additional hours, the lack of credit hours for such work is not evidence that the appellant suffered an adverse personnel action.
The appellant nonetheless argues that Neider treated her differently than comparator AH (white female) “by not requiring [AH] to request to work additional time in advance, allowing her to work additional time above amount of time requested, and approving additional work-time after [AH] worked without prior consent.” She also contends that Neider treated her differently than comparator ED (white female) “by allowing [ED] to work additional time without submitting requests that [the appellant] was mandated/directed to submit.”7 The appellant also cites to the lack of written requests to Neider from AH and ED in support of her contentions, and she testified during her deposition that employees were informed that such requests had to be made in writing by email to Neider. In response, the Library suggests that oral requests to Neider were acceptable, stating that “lack of written requests . . . does not support Appellant’s allegations, as it fails to take into account verbal requests and approvals.” The appellant’s contentions fail, however, because she does not contend that she attempted to make any oral requests to work additional hours, or that the Library denied any such requests. Therefore, even if the proffered comparators were permitted to make oral requests to Neider and those requests were granted, the appellant’s contentions regarding compensation for additional hours worked would not permit a finding of disparate treatment.
The appellant also alleges that on six occasions AH exceeded by 15 minutes to 1 hour the number of additional hours Ms. Neider authorized AH to work. However, [AH] seeking approval for continuing to work beyond the time approved by Neider is not analogous to the appellant unilaterally working hours without seeking approval. The appellant additionally asserts that on one occasion AH requested approval to work additional time after she already performed the work. We agree with the Library that this argument also fails because Neider also approved credit hours for the appellant on one occasion after she already performed the work. Because AH and the appellant were treated similarly on these occasions, these facts do not permit an inference of disparate treatment discrimination.
The Hearing Officer also acknowledged that the appellant identified two dates in her interrogatory answers, September 21 and September 28, 2019, as dates upon which she asked for and was denied permission by Neider to work additional hours. She claims that AH was approved to work extra hours on September 28, and that the denials of the appellant’s requests are adverse employment actions permitting an inference of discrimination. We disagree.
The courts have held that isolated denials of requests for overtime or compensatory time do not rise to the level of adverse employment actions, where, as here, such requests were neither routinely nor frequently denied. Caul v. U.S. Capitol Police, 2016 WL 2962194 (D.D.C. May 19, 2016); see also Sims v. District of Columbia, 33 F. Supp. 3d 1, 7 (D.D.C. 2014) (rejecting a discrimination claim where the plaintiff challenged two short-term reassignments, which did not provide opportunities for overtime, because those details “lasted no more than [ ] several days,” and the plaintiff “lost the potential for overtime pay on a limited number of occasions”); Hall v. Dekalb Cty. Gov’t, 503 Fed. App’x 781, 784–85 (11th Cir. 2013) (“the occasional denial of comp time or overtime did not constitute an adverse employment action,” where the plaintiffs “acknowledged that they had consistently earned comp time and overtime . . . and personnel records showed that they did not receive significantly less comp time or overtime than white employees”); Hargrow v. Federal Express Corp., No. 07-15623, 2009 WL 226039, at *1 (9th Cir. 2009) (“The denial of a day off, the denial of overtime hours for one week during the employment period, and the denial of a schedule change similarly do not rise to the level of adverse employment actions.”); Hart v. Life Care Ctr. of Plano, 243 Fed. App’x 816, 818 (5th Cir. 2007) (finding that the plaintiff’s allegation of a single denial of overtime did not constitute an adverse employment action); Shaw v. Donahoe, 2014 U.S. Dist. LEXIS 37534, at *35–37 (W.D. Tenn. Feb. 18, 2014) (noting that “[l]ost overtime opportunities can be adverse employment actions when the overtime opportunities lost were both relatively regular in their occurrence and significant in the monetary impact” and concluding that plaintiff failed to establish discrimination claim based on alleged denial of overtime when she “does not allege that the opportunity for overtime was completely foreclosed to her—rather, she alleges that on a few, distinct occasions, she was not asked to work overtime on her off days.”). But see Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 717 (11th Cir. 2002) (finding plaintiff’s allegation that he was “totally blackballed” from overtime opportunities open to other employees” may constitute an adverse employment action).
Accordingly, the appellant’s allegations regarding denial of her requests to work additional hours on two dates does not rise to the level of an adverse employment action sufficient to support an employment discrimination claim.
B. The Hearing Officer Correctly Granted the Library’s Motion for Summary Judgment on the Appellant’s Hostile Work Environment Claim
Finally, we turn to the appellant’s claim that she was the victim of a hostile work environment based on her race. The Hearing Officer also granted the Library’s motion for summary judgment on this claim. We affirm.
To make out a hostile work environment claim, the appellant must show that she was subjected “to discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Torrez-Velez, 2019 WL 10784232, at *9; Rager, 2018 WL 4908519, at ** 11-12; Williams v. Office of the Architect of the Capitol, No. 14-AC-11 (CV, RP), 2017 WL 5635714, at *8 (OOC Nov. 21, 2017); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, (1993) (whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances). A hostile work environment claim requires proof that the environment was objectively hostile or abusive – i.e., an environment that a reasonable person would find hostile or abusive – and which was subjectively perceived as such. Harris, 510 U.S at 21-23; see also Fargher v. City of Boca Raton, 524 U.S. 775, 787 (1998); Baird v. Gotbaum, 792 F.3d 166, 172 (D.C. Cir. 2015) (“[T]he standard for severity and pervasiveness is an objective one.”) (citing Harris, 510 U.S. at 21). These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a “general civility code.” Faragher 524 U.S. at 787.
Viewing the appellant’s allegations in a light most favorable to her, we agree with the Hearing Officer that they are insufficient to support a claim of hostile work environment harassment. First, a necessary component of a hostile work environment claim is that the allegedly hostile behavior must be “discriminatory”—that is, it must be tied to the complainant’s membership in a protected class. Torrez-Velez, 2019 WL 10784232, at *9; Rager, 2018 WL 4908519, at ** 11-12; Williams, 2017 WL 5635714, at *8; Baloch, 550 F.3d at 1201 (plaintiff’s hostile work environment claim failed, in part, because “none of the comments or actions directed at [plaintiff] expressly focused on his race, religion, age, or disability”); Gray v. Foxx, 637 F. App’x 603, 608 (D.C. Cir. 2015) (plaintiff submitted evidence that her supervisor yelled at her and belittled her, but “[did] not connect his remarks to any protected status”); Hyson v. Architect of Capitol, 802 F. Supp. 2d 84, 104 (D.D.C. 2011) (stating that “because [plaintiff] is unable to tie the majority of her allegations to her gender or protected activity, the Court is unable to consider them”); see also Jensen v. Potter, 435 F.3d 444, 447 (3d Cir. 2006) (stating that “[m]any may suffer severe harassment at work, but if the reason for that harassment is one that is not prescribed by Title VII, it follows that Title VII provides no relief”).
Here, the appellant does not allege that any Library employee made derogatory comments about her race. Moreover, although the appellant claimed that her supervisor demonstrated “micro aggressions, and macroaggressions . . . as it relates to working additional hours, compensation for time worked on critical time-sensitive contractual actions . . . and the raising of my signature authority,” the courts have generally rejected hostile work environment claims based on work-related actions by supervisors. See Williams, 2017 WL 5635714, at *9, see also, e.g., Wade v. District of Columbia, 780 F. Supp. 2d 1, 19 (D.D.C. 2011); Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94 (D.D.C. 2009) (“[T]he removal of important assignments, lowered performance evaluations, and close scrutiny of assignments by management [cannot] be characterized as sufficiently intimidating or offensive in an ordinary workplace context.”); Bell v. Gonzales, 398 F.Supp.2d 78, 92 (D.D.C. 2005) (finding that actions such as exclusion from the informal chain of command, close monitoring of work, missed opportunities for teaching, travel, and high-profile assignments, and reassignment to another unit did not amount to a hostile work environment because “they cannot fairly be labeled abusive or offensive”); see also Houston v. SecTek, Inc., 680 F. Supp. 2d 215, 225 (D.D.C. 2010) (“Allegations of undesirable job assignment or modified job functions and of [supervisor’s] unprofessional and offensive treatment are not sufficient to establish that [plaintiff’s] work environment was permeated with discriminatory intimidation, ridicule, and insult.”) (citation and quotation marks omitted). Under the circumstances, the workrelated actions that the appellant cites were not objectively offensive, abusive, hostile or threatening.
The remaining actions that the appellant describes also fall far short of the kind of “severe or pervasive” harassing conduct she is required to show in order to prevail. Harris, 510 U.S. at 21-23. See Brooks v. Grundmann, 748 F.3d 1273, 1275 (D.C. Cir. 2014). General feelings of workplace discomfort or unease unrelated to membership in a protected classification are simply not enough to support a claim for hostile work environment. See Williams, 2017 WL 5635714, at *9; Tucker v. Johnson, 211 F. Supp. 3d 95, 101 (D.D.C. 2016).
Accordingly, we affirm the Hearing Officer’s grant of summary judgment for the Library on the appellant’s hostile work environment claim.
ORDER
For the foregoing reasons, the Board AFFIRMS the Hearing Officer’s Order on all claims.
It is so ORDERED.
Issued, Washington, DC, May 16, 2022
1 As discussed below, it is undisputed that the appellant’s position is exempt from the overtime provisions of the Fair Labor Standards Act (FLSA), but that the governing collective bargaining agreement (CBA) contains provisions concerning credit hours and overtime for FLSA exempt employees.
2 A warrant is a written document that sets out the scope and limitations on an individual’s delegated authority to enter into procurement contracts for the Library.
3 The appellant also alleged in her claim form that the Library retaliated against her in 2018 for requesting or taking protected leave under the Family and Medical Leave Act (FMLA). This claim does not appear to have been further litigated below, and the appellant does not raise it on review. In any event, because the appellant filed her claim form with the OCWR well after 180 days of these alleged violations, it was untimely filed insofar as her FMLA retaliation claim is concerned. See 2 U.S.C. § 1402(d) (“A covered employee may not file a claim under this section with respect to an allegation of a violation of law after the expiration of the 180-day period which begins on the date of the alleged violation.”).
4 We note, however, that the Hearing Officer stated with respect to the appellant’s disparate treatment claims that “[w]here the Claimant failed to show that she was similarly situated with the comparators, and where she failed to adduce any evidence of these events, she failed to show, by a preponderance of the evidence, that the Respondent treated her differently.” This was error. The burden on a party moving for summary judgment is affirmative. The party seeking summary judgment has the burden of showing there is no genuine issue of material fact, even on issues where the other party would have the burden of proof at trial, and even if the opponent presents no conflicting evidentiary matter. McKinney v. Dole, 765 F.2d 1129, 1134–35 (D.C. Cir. 1985), abrogated on other grounds by Stevens v. Dep’t of Treasury, 500 U.S. 1 (1991). If the moving party meets this burden, then and only then is the nonmoving party required to proffer evidence that contradicts the moving party’s showing and that proves the existence of a genuine issue of material fact. Accordingly, at the summary judgment stage, the appellant was not required to establish her allegations by a preponderance of the evidence; rather, she was only required to proffer evidence that would permit the inference of unlawful conduct required to establish her prima facie case. Because the appellant failed to proffer such evidence with respect to her signature authority claims, the Hearing Officer’s error was harmless and does not provide a basis for granting the appellant’s PFR.
5 The appellant does not contend that she was ordered or directed by management to work in excess of the employee’s basic hours, or that she was entitled to overtime under the CBA.
6 We are not presented in this case with a discriminatory denial of compensation for time that an employer knowingly suffered or permitted an employee to work. In our view, even a single denial of compensation under such circumstances would establish that the employee suffered an adverse employment action because it would cause objectively tangible harm affecting the terms, conditions, or privileges of employment under LaHood. 589 F.3d at 454.
7 Although the appellant presented no evidence concerning the jobs and job duties of ED and AH other than their job titles, we assume, without deciding, that they were suitable comparators.
