énvironment.””? (Ex. 257 to Pl. Facts.) On March 8, 2002, Dr. Baber prepared a handwritten note
Stating that Goodum had been under his care since February 17, 2002. Dr. Baber indicated that
Goodum was admitted to the hospital “very depressed, extremely anxious and suicidal.” He further
stated that Goodum's “[d]isorder was aggravated by employment because patient thinks she is
unfairly treated by work.” (PI. Facts. 341; Ex. 257 to Pl. Facts.) There is no evidence, however,
that anyone ever sent either Dr. Hong's or Dr. Baber’s letters to the Army.

On May 19, 2002, Goodum sent Major England the doctor's prescription for medical leave.
(Ex. Vol. 6 to Pl. Facts, at 137.) Approximately one month later, on June 17, 2002, Dr. Shobha
Sinha issued Goodum another prescription to remain off work until August 26, 2002. (PI. Facts
349.) Goodum sent Dr. Sinha’s note to Petron on June 19, 2002. (Ex. Vol. 6 to Pl. Facts, at T40.)
On August 26, 2002, Dr. Sinha wrote a letter stating that “[flor the health and welfare of Ms.
Goodum | recommend that she does not have any contact with Charles Pet{rjon and her place of
employment.” (PI. Facts | 355.) On December 9, 2002 and February 10, 2003, Dr. Sinha wrote
two additional notes stating that Goodum needed to remain off work “at this time.” (Ex. 257 to Pl.
Facts.) On December 12, 2002, Petron sent Gooduma Notice of Proposed Removal from Budget
Analyst position based on her inability to maintain membership in the reserves. (Ex. 208 to Pl.
Facts.) Goodum responded with a letter dated December 29, 2002, asking that she be allowed to
keep her position pending the outcome of her EEO investigation, “until | find another position and
most important until | am medically able to return to work.” (Ex. 209 to PI. Facts.) It is undisputed
that Goodum remained on a medical leave of absence from January 29, 2002 until at least March
16, 2004, the date she was deposed in this lawsuit. (Army Facts J] 131.)

During her deposition, Goodum testified that she suffers from numerous disorders, including

fibromyalgia, severe chronic fatigue syndrome, severe depression, and muscle spasms. According
eS

2 Dr. Hong prepared a nearly identical letter on April 16, 2003 but there is no evidence

that it was ever sent to the Army. (Ex. 257 to Pl. Facts.)

20



privileges applied to all employees regardless of whether they filed an EEO complaint. Finally,
Goodum was granted a medical leave of absence extending at least two years, which in no way
evidences retaliatory intent, Goodum has not established that she suffered any actionable adverse
actions, much less that there is any causal connection between those actions and her EEO
complaint. Significantly, Goodum’s own Memorandum for Record of January 11, 2002 indicated
that Petron was harassing her in retribution for her attempts to leave the section, and not because
she had filed an EEO complaint. The Army's motion for summary judgment on this claim is
therefore granted.
CONCLUSION

For the reasons stated above, the Army's motions to deem facts admitted (Doc. No. 45) and
for summary judgment (Doc. No. 37) are both granted, and Goodum's motion for summary
judgment (Doc. No. 32) is denied. The clerk is directed to enter judgment in favor of Defendant.

ENTER:

Nan R. Nelan,

NAN R. NOLAN
United States Magistrate Judge

Dated: March 3, 2006

41



v. Chicago Transit Authority, 367 F.3d 714, 731 (7th Cir. 2004). Goodum has not identified any
such tangible job consequence in this case. To the contrary, Goodum admits that she was never
disciplined or demoted, much less as a result of the counseling statement, and that she always
received good performance evaluations. (Pl. Facts ff] 14, 17, 18; Army Facts {| 136.) Goodum
does claim that she was denied a lateral transfer to the personne! section because Strubbe
witnessed her counseling statement. As explained earlier, however, itis clear that Goodum did not
get the personnel position because she failed to submit the necessary documentation. See Oest
v. llinois Dep't of Corrections, 240 F.3d 605, 613 (7th Cir. 2001) (no adverse employment action
where the plaintiff “has not pointed to any immediate consequence of the reprimands, such as
ineligibility for job benefits like promotion, transfer to a favorable location, or an advantageous
increase in responsibilities.”)
6. Physical Training

On January 7, 2002, Petron sent Goodum an email message inquiring why she had left
work at 2:00 p.m. that day. Goodum responded the next day, stating that she had left for PT.
Petron replied to Goodum’s email message stating that Goodum had to conduct her PT on the
premises, and attaching a “Memo for the Record” to that effect which he had prepared on
December 31, 2001. (Exs. S and U to Army Facts.) In response, Goodum emailed Petron
accusing him of discriminating against her with respect to her PT and attempting to “harass [her]
because [she] want{ed] to leave the section.” (Ex. S.) As a preliminary matter, requiring Goodum
to perform PT on the premises is not an adverse employment action for purposes of Title VII; it is
merely an inconvenience. McKenzie v. Milwaukee County, 381 F.3d 619, 625 (7th Cir. 2004)
(quoting Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002)) ("To be actionable, an employment

action must be ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.)

37



H, Further Counseling for Goodum and Petron

In September 2001, Sherry Toberman replaced Wayne Marlett as CXO of the 85th Division.
(PI. Facts 131; Army Fact Resp. 31 -) Sometime thereafter, Goodum told Toberman that Petron
kept throwing in Goodum’s face the fact that he had done a lot of her work while she
telecommuted. Toberman says that she spoke with Petron and instructed him to stop referring to
that event. Petron responded that he “didn't realize he did it that often” but “if he did, he would
make an effort to stop.” (Id. | 76; Army Fact Resp. {[ 75.)

Also in September 2001, Fee retired and was replaced by Colonel Michael Silva. Silva
changed the employees’ work schedules in the section and made everyone's days longer to
account for an increased workload following the events of September 11, 2001. (Id. ‘11 81-83; PI.
Facts J 27.) On November 1, 2001, Silva had an introductory meeting with Goodum during which
she complained that she did not like Petron and considered him to be verbally abusive and a bad
manager. Around the same time, Petron complained to Silva that Goodum did not get her work
done, complained excessively, and was disruptive. (/d. 1] 84, 85.) Silva “counseled, monitored
and coached both Mr. Petron and Ms. Goodum on their interactions with each other, and how they
could each contribute a little bit to a better total environment.” (/d. 7 86.)

In addition to complaining about Petron’s management style, Goodum also told Silva that
she was overworked and had “too many things on her plate.” When Silva asked her whether she
was required to perform tasks not normally required of someone in her position, however, Goodum
was “vague” and stated only that “there were things she had to clean up....” (Id. 187; Silva Dep.,
Ex. P to Army Facts, at 11.) At some point, Petron suggested that Goodum and Edwards cross-
train so that Edwards could assist her with the OMA fund and she could reduce her workload by
taking on some of the RPA fund responsibilities. Goodum rejected the proposal because she did

not want to work on the RPA fund. (id. J 88.)

14



‘nurses in the Department of Veterans Affairs. 29 U.S.C. § 2612(a)(1); 5 U.S.C. § 6301(2)(B); 5
U.S.C. § 6381(1)(A). Title 1 expressly provides that an employee may bring a civil action against
the employer in federal or state court. 29 U.S.C. § 2617(a)(2). Title !I contains no similar provision.
Goodum does not dispute that she is a Title II federal civil service employee. (PI. Resp., at 4.)
Thus, she has no claim for relief under the FMLA and the Army's motion for summary judgment
is granted. See Mann v. Haigh, 120 F.3d 34, 37 (4th Cir. 1997) (No unequivocal waiver of
immunity exists in Title I, and, consequently, the omission of a provision in Title II similar to that
in Title | creating a private right of action is treated as an affirmative congressional decision that
the employees covered by Title !I of the FMLA should not have a right to judicial review of their
FMLA claims.”); Russell v. U.S. Deptt of the Army, 191 F.3d 1016, 1019 (8th Cir. 1999) (same);
Kallen v. U.S, Dep't of Defense, No. 1:03-CV-1 634-JDTTAB, 2004 WL 2137636 (S.D. Ind. Aug.
11, 2004) (same).
I, Race Discrimination

A plaintiff alleging discrimination by a federal agency “must exhaust [agency] remedies
before [s]he can bring suit.” McGuinness v. U.S. Postal Serv., 744 F.2d 1318, 1320 (7th Cir. 1984).
As noted, Goodum withdrew her race discrimination claim during the factfinding conference. (Ex.
207 to Pl. Facts.) Thus, she has not exhausted her administrative remedies with respect to that
claim and it must be dismissed. Goodum disagrees, arguing that the race discrimination claim is
“like or reasonably related to” her claims of a hostile work environment; sex, pregnancy, and
disability discrimination; and retaliation. (Pl. Resp., at 3.) In support of this argument, Goodum
cites Collins v. Executive Airlines, Inc., 934 F. Supp. 1378 (S.D. Fla. 1996), in which the plaintiff
filed a 1993 charge alleging both race discrimination and retaliation, and a 1994 charge alleging

only retaliation. The 1993 charge “was resolved” two months before the plaintiff filed the 1994

16

Plaintiffs Response to Defendant's Motion for Summary Judgment is cited as “PI.
Resp., at__.”

24



1. You, baby, command
2. Budget formulation & presentation = “Show Stopper”

(PI. Facts 48; Ex. 11 to Pl. Facts.) Goodum believes this demonstrates that Petron opposed the
decision to allow her to telecommute. (/d.) In any event, it is undisputed that Colonel Peter Fee,
Comptroller for the 85th Division and Petron’s immediate supervisor, also “wanted to make sure
that [Goodum’s]} job was getting done.” (Fee Dep., Ex. J to Army Facts, at 19.) On December 15,
1999, Goodum submitted the medical documentation required for her request to telecommute. (PI.
Facts ff 47.)

On January 10, 2000, Marlett approved Goodum's request to work from home between
January 11 and August 20, 2000 on the condition that she maintain communications with Petron
and submit an activity log for every pay period. (Army Facts 121; Memo re Work at Home, Ex. G
to Army Facts.) Marlett imposed these conditions so that Petron could account for Goodum's hours
and sign her paycard, and so that Marlett had some documentation to show headquarters that the
Division was “in control of what was happening.” (id. 7 22; Marlett Dep., Ex. H to Army Facts, at
9.) Petron viewed the log as a “management tool,” “a method to record eight hours of work for
eight hours of Pay” and “to protect the command from a future audit down the road.” Petron also
believed that the log would help prevent “fabrication by other People of time card fraud.” (Pl. Facts
‘17 88, 89.)

Goodum believes that an activity log is “a great idea” because “there's always going to be
People to take advantage of the system.” (Army Facts 123; Goodum Dep., Ex. E to Army Facts,
at 91.) She complained, however, that the activity log took her more time than it was worth to
complete. (/d. 24; Pl. Facts 178.) Goodum admits that on occasion she failed to complete her
activity log, but Petron merely instructed her to submit it with her timecard and never revoked her

telecommuting privileges. She also concedes that she is not aware of any other employee in her



4. Bad Reference

{In October 2001, Goodum applied for a Resource Management Officer ("RMO”) position
at the 416th Engineer Command. That position is comparable to the one held by Petron at the 85th
Division and would have been a promotion for Goodum. Colonel Gieb of the 416th Engineer
Command interviewed Goodum for the job and also called Petron to inquire about her
qualifications. Petron told Gieb that Goodum had excellent technical skills but needed more
supervisory skills. On February 4, 2002, Goodum learned that the Army gave the RMO position
to Debra McDonald.

To establish a claim for failure to promote, Goodum must prove, among other things, that
she applied for and was qualified for the RMO position, and that Debra McDonaid is neither in her
protected class nor better qualified than her. Grayson v. City of Chicago, 317 F.3d 745, 748 (7th
Cir. 2003). McDonald, a female, is not outside Goodum’s protected class. See Jordan v. City of
Gary, 396 F.3d 825, 833 (7th Cir. 2005) (no prima facie case of discrimination where promoted
employee was “a member of the same protected class as [the plaintiff].”) Nor is there any evidence
that Goodum, who lacked the requisite supervisory skills, was equally qualified for the position.
Goodum’s belief that she did not need supervisory skills for the RMO position, and that she was
in fact more qualified than McDonald, cannot defeat the Army's motion for summary judgment.
Goodum admits that she does not know what criteria the hiring official at the 416th used to select
the successful candidate. See Karazanos v. Navistar Intl Transp. Corp., 948 F.2d 332, 337 (7th
Cir. 1991) (“[A] plaintiff's speculation is not a sufficient defense to a summary judgment motion.”)

In addition, Goodum has not offered any admissible evidence regarding McDonald's job
qualifications as compared with her own. Even if she had, moreover, itis well-established that “the
Plaintiff's credentials would have to be so superior to the credentials of the person selected for the

job that no reasonable person, in the exercise of impartial judgment, could have chosen the

35



to Goodum, these conditions cause her severe pain and prevent her from doing “much of anything.”
Goodum's eye reportedly twitches so badly that she cannot read for hours at a time, and she has
muscle spasms in her hands that prevent her from writing or using a computer. Goodum stated
that she finds everything overwhelming and spends most of her days going to the doctor and
sleeping. As of March 16, 2004, Goodum felt absolutely incapable of performing the duties of a
full-time budget analyst and could not anticipate any date in the future when she might feel capable
of returning to work. (/d. 91] 132-34; Pl. Facts 91372.)

M. Goodum’s Lawsuit

As noted, Goodum filed a formal complaint of discrimination with the EEO Office on
February 12, 2002, shortly after she received the requisite Final Interview Letter on February 7,
2002. The EEO Office accepted the case for investigation on February 27, 2002 and held a
factfinding conference on August 27 and 29, 2002. On November 20, 2002 the EEO Office issued
a Report of Investigation finding “no verification of any observed behaviors characterized as
derogatory toward [Goodum] based on her sex, disability or EEO activity.” The Report also noted
that Goodum had withdrawn her claim of race discrimination during the factfinding conference. (Ex.
207 to Pl. Facts.)

On December 18, 2002, Goodum requested appointment of an Equal Employment
Opportunity Commission (“EEOC”) Administrative Judge to hear her case. The EEOC issued a
scheduling order on March 31, 2003. On May 14, 2003, Goodum submitted her Notice of Intent
to file a civil action pursuant to 29 C.F.R. § 1614.310(i) and 5 U.S.C. § 7702(e)(1)(c). On May 15,
2003, the EEOC remanded the case to the Agency for a final decision. The same day, Goodum
filed this lawsuit alleging sex, race, pregnancy, and disability discrimination; sexual harassment;

violation of 42 U.S.C. § 1981; violation of the FMLA; and retaliation and reprisal.

21



v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004) (“Rehabilitation Act claims are analyzed
under the same standards as those used for ADA claims.”) (internal quotations omitted).

For similar reasons, Goodum cannot prevail on her claim of disability discrimination. To
establish a prima facie case of discrimination, Goodum must show that (1) she was disabled; (2)
the Army was aware of her disability; and (3) she was a qualified individual who, with or without
reasonable accommodation, could perform the essential functions of her job. Basith, 241 F.3d at
927. Goodum has no evidence that she is qualified to perform the essential functions of her job.
To the contrary, she herself testified that she is absolutely incapable of performing the duties of a
full-time budget analyst — including reading, writing, staying awake, or using a computer — and
cannot anticipate any date in the future when she might fee! capable of returning to work. See
Sutton v. Potter, No. 02 C 2702, 2004 WL 603477, at *7 (N.D. Ill. Mar, 22, 2004) (quoting Byrne,
328 F.3d at 381) (“Since ‘not working is not a means to perform the job’s essential functions,’ a
total inability to work ‘means that one is not qualified.”) In addition, Goodum was given a medical
leave of absence exceeding two years in length, and she cannot demonstrate that the Army’s
reason for not returning her to work ~ her own testimony that she is incapable of working — is a
pretext for discrimination. See Dyrek v. Garvey, 334 F.3d 590, 598 (7th Cir. 2003) (proffered
teason for an employment decision is pretextual if it is “factually baseless,” not the actual
motivation, or insufficient motivation; “[i]t is not enough to show the decision was ‘mistaken, ill
considered, or foolish.”) The Army’s motion for summary judgment on Goodum’s Rehabilitation
Act claim is granted.

Vv. Gender and Pregnancy Discrimination

Goodum argues that the Army discriminated against her because of hersex and pregnancy.

Title VII prohibits discrimination against any individual “because of such individual's ... sex...”

42 U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination Act of 1978, which amended Title Vu,

27



matters are in dispute, the court is required to credit the nonmovant's version of events. Hostetler
v. Quality Dining, Inc., 218 F.3d 798, 802 (7th Cir. 2000). The nonmoving party must do more,
however, than demonstrate a factual dispute; she must offer evidence sufficient to support a verdict
in her favor. Basith v. Cook County, 241 F.3d 919, 926 (7th Cir. 2001). Employment discrimination
cases are inherently fact-intensive, but the court is not required to “scour the record” in an effort
to assist the plaintiff in avoiding summary judgment. Greer v. Board of Ed. of City of Chicago, 267
F.3d 723, 727 (7th Cir. 2001).

Before turning to the merits of summary judgment, the court notes that Goodum's
“arguments” largely consist of repeating the facts of the case without meaningful analysis.'° “A
judge is the impartial umpire of legal battles, not a plaintiffs’ attorney. [S]he is neither required to
hunt down arguments plaintiffs keep camouflaged . . . nor required to address perfunctory and
undeveloped arguments.” Williams v. Eastside Lumberyard and Supply Co., 190 F. Supp. 2d 1 104,
1114 (S.D. Ill. 2001) (citing United States v. Dunkel, 927 F.2d 955, 956 {7th Cir. 1991)) (“Judges
are not like pigs, hunting for truffles buried in briefs.") In addition, “[a] plaintiff's recital of the facts
of the case triggers no duty on the part of the judge to research, construct, and further research
the best legal arguments [s]he can for that fact-reciting party.” fd. Thus, the court will address only
those arguments properly discernible from the briefs.

1 FMLA

The Army argues that Goodum does not have a private right of action under the FMLA. The
FMLA grants both private and federal employees an entitlement to periods of leave for certain
enumerated circumstances, including the birth of a child and related periods of disability. Title | of
the Act governs leave for private employees and federal employees not covered by Title Il-e.g.,

postal service employees; certain District of Columbia employees; and physicians, dentists, and

8 Goodum’s motion for summary judgment spans 44 Pages, and her response in

opposition to the Army's motion for summary judgment is an additional 40 pages.

23



candidate selected over the plaintiff for the job in question.” Millbrook v. IBP, Inc., 280 F.3d 1169,
1180-81 (7th Cir. 2002) (internal quotations omitted). Goodum has not made such a showing in
this case and the court will not second-guess the Army's decision to hire McDonald. Brummett v.
Sinclair Broadcast Group, Inc., 414 F.3d 686, 693 (7th Cir. 2005) (“Above all, we are mindful that
courts do not sit as super-personnel departments, second-guessing an employer's facially
legitimate business decisions.”) (internal quotations omitted); Wernsing v. Department of Human
Servs., State of illinois, 427 F.3d 466, 468 (7th Cir. 2005) (internal quotations omitted) (“No matter
how medieval a firm’s practices, no matter how high-handed its decisional process, no matter how
mistaken the firm’s managers, Title VII... do[es] not interfere.”) The Army's motion for summary
judgment on Goodum’'s failure to promote claim is granted.
5. Counseling Statement

On December 28, 2001, Goodum left work early without permission to do her physical
training. Petron attempted to issue Goodum a formal counseling statement on December 31,
2001, but Petron honored Goodum's request to wait until she had a witness present. On January
8, 2002, Petron issued Goodum's counseling statement in the presence of Audrey Strubbe. The
counseling statement noted that civilian employees could only leave early if they had permission
from a supervisor, and that Goodum did not have permission on the date in question because she
had not yet completed a project. Goodum submitted a rebuttal to the counseling statement
claiming that she could not have completed the project even if she had worked all weekend, and
stating that “I had my coat on at this point, | told everyone to have a nice weekend, and [I] left for
the day.” (Ex. W to Army Facts.)

The Seventh Circuit has held that “[t}here must be some tangible job consequence
accompanying [a] reprimand to rise to the level of a material adverse employment action; otherwise

every reprimand or attempt to counsel an employee could form the basis of a federal suit.” Lucas

36



a hostile work environment. (/d. WM 116-18; Pl. Facts 99 264, 320.) Sherry Toberman testified that
Allen later told her that “we needed [Goodum} most in [Petron’s] section” and he “wanted her to
stay in that section.” (PI. Facts § 264.)

On January 28, 2002, Goodum sent Allen, Burnett, Silva, Petron, and Toberman an email
Message complaining that she had emailed Petron on January 14 with her list of duties but had not
yet heard back from him. Burnett responded the next day stating that Silva and Toberman were
out of town. (Army Facts WM 119-21; Ex. AA to Army Facts.) Burnett asked Goodum to remain
professional and reminded her that “these are exciting times at the Div with our country at WAR.”
(Id. If] 120, 121; Ex. AA to Army Facts.) Petron responded to Goodum’s email message later that
morning, stating that he had been out of town for 12 days between January 12 and 24, 2005 and
had just read her January 14 email the night before. Petron informed Goodum that another
reservist, Sergeant Ordija, had expressed interest in helping her complete some of her current
tasks, and strongly recommended that she contact Ordija for assistance. (Id. J] 122; Ex. AA.)
Goodum chose not to contact Ordija, however, because she thought it would take too much time
to train him. (/d. | 123.) According to Goodum, Ezella Vargas and Cordell Rich asked Petron if
they could help Goodum, but he said no, (PI. Facts ¥] 175.)

L. Goodum’s Medical Leave

Also on January 29, 2002, Goodum submitted a request for medical leave supported by a
note from Dr. Jerome Hong dated January 28, 2002. In the note, Dr. Hong stated that Goodum
was a patient under his care; that she was suffering from an unidentified “medical condition that
is due in part to the conditions at her workplace”; and that he recommended that she take two
weeks off work to assist with her medical therapy. (Army Facts J] 124; Exs, BB and CC to Army
Facts; Pl. Facts | 340.) On February 13, 2002, Goodum sent Petron a facsimile stating that she

needed additional advanced sick leave and medical leave, and designating Attorney David E.

18



different states and headquarters, formatting it into an established format and coordinating the
division’s $20 million budget.” (/d. 4] 123, 124.) The Army does not dispute that Petron assigned
Goodum this time-consuming and laborious task, but notes that she gave birth on June 22, 2000
and could not have been seven months Pregnant at the time. (Army Fact Resp. J 124; Army Reply,
at 4.)

E. Petron’s “Smear Campaign”

Goodum claims that while she was telecommuting and out on maternity leave, Petron
began a “smear campaign” against her by referring to her pregnancy as a showstopper and stating
that she had abused the system and was not a team player. (Army Facts § 36.) Colonel Lynn
Barden testified that she heard Petron state that Goodum was “not a team player, wasn't
supporting the unit, and was not doing her job.” (PI. Facts 1 71; Transcript of Factfinding
Conference, at 177.) Major General Alien admits that characterizing a soldier as “not a team
player” could jeopardize her career in the “short term.” (/d. | 328.) Aside from Barden's one
comment, however, Goodum’s only evidence of a smear campaign is hearsay testimony from co-
workers who purportedly told her that they heard Petron make negative statements about her. (ld.
111 54, 57, 58, 62-64; Transcript of Factfinding Conference, at 31 .) As noted, Petron did complain
to Marlett that he did not have enough control over telecommuting and that it would be difficult to
monitor Goodum’s work performance. Petron also stated that he had a “personality conflict” with
Goodum and that she did not seem to understand that she was not the person in charge. (Id. {J
55, 56.) In Petron’s view, however, there was never a question that Goodum was doing her
assigned work because he was in constant email and telephone contact with her, and because it
would be readily apparent if Goodum did not pay bills or transfer and allocate money. (Army Facts

1927, 28; Army Fact Resp. $82.) In addition, though Goodum believes that Petron was upset with

10



reviewed Goodum’s workload and determined that it was very similar to the workload performed
by other budget analysts at other facilities.

After Silva replaced Fee as Comptroller of the 85th Division in September 2001, Goodum
complained to him that she remained overworked. When Silva asked her whether she was
required to perform tasks not normally required of someone in her position, however, Goodum was
“vague” and stated only that “there were things she had to clean up. ...” (/d. 187; Silva Dep., Ex.
P to Army Facts, at 11.) Significantly, Goodum declined Petron's suggestion to have Bryan
Edwards, the other budget analyst, assist her with the OMA fund. She also declined Petron's
suggestion that she contact Sergeant Ordija for assistance because she thought it would take too
much time to train him.

Goodum argues that in December 2001, Petron prepared employee objectives for her that
were unattainable. It is undisputed, however, that Goodum failed to respond to Petron's email
requesting her input on those objectives. In addition, Silva changed all employees’ work schedules
in the section and made everyone's days longer to account for an increased workload following the
events of September 11, 2001. (/d. {J 81-83; Pl. Facts | 27.) As noted, “[a] simple increase in
workload is not enough to show an adverse employment action,” particularly where it applies to all
employees. Buttron, 2003 WL 21801222, at*18. As for Goodum’s complaint that Petron assigned
her tasks that were his responsibility, Edwards testified that Petron “dumped on” him in the same
way. (Army Facts §[ 61.) See Yonehara v. American Airlines, Inc., No. 02 C 8561, 2004 WL
2222184, at *13 (N.D. Ill. Sept. 30, 2004) (an onerous workload may constitute an adverse
employment action assuming it is “more onerous . . . than other employees” who are similarly

situated). Thus, Goodum’s workload complaints cannot support her claim of discrimination.

33



direct evidence of discrimination. Morrow v. Wal-Mart Stores, Inc., 152 F.3d 559, 563 (7th Cir,
1998) (“[H]earsay is inadmissible in summary judgment proceedings to the same extent that it is
inadmissible in a trial.") Petron did use the phrase “show-stopper’ in his notes from a December

9, 1999 meeting, but it related to budget formulation and presentation, and not Goodum’s

pregnancy:
1. You, baby, command
2. Budget formulation & presentation = “Show Stopper”

(PI. Facts {| 48; Ex. 11 to Pl. Facts.) On these facts, Goodum has not established direct evidence
of discrimination.

B. Indirect Evidence

Goodum claims that she has nonetheless established an indirect case of sex and
pregnancy discrimination. The Army disagrees, arguing that she did not suffer an adverse
employment action and cannot identify any similarly situated male or non-pregnant employees who
were treated more favorably. The Army also argues that Goodum cannot demonstrate that its
stated reasons for its employment decisions are a pretext for unlawful sex discrimination.

Goodum has identified some 17 purported adverse employment actions, most of which
merit little discussion. (PI. Reply, at 6-7.)'* Petron’s opposition to Goodum’s telecommuting and
demand that she “prematurely invoke family medical leave” are not adverse employment actions
because she was in fact allowed to telecommute from January 11 to August 20, 2000, and she
received all the FMLA leave to which she was entitled. Goodum has not identified any adverse
employment action resulting from Petron’s allegedly bad-mouthing her to co-workers, nor is there
any evidence to support her claim that she was barred from communicating with General Allen.

Finally, the Army's “propos[al] to discharge Plaintiff on several occasions” — without actually doing

% Plaintiffs Reply to Defendant's Response to Plaintiff's Motion for Summary

Judgment is cited as “PI. Reply, at__.”

30



staff’ in an unprofessional, condescending, or argumentative manner. (/d. 9] 43, 44; Ex. K.) In
closing, Goodum stated that “[wle will attempt to meet with [Petron] to address these issues shortly,
[but] if this does not work we will ask for your intervention.” (/d. 1 45; Ex. K.)

Fee received complaints from other members of Petron’s staff in addition to Goodum.
Constance Storer, a management analyst who worked under Petron for approximately one year,
testified that Petron was disrespectful and demeaning to his employees and that people viewed him
as a poor manager who did not know how to talk to people. (/d. 9] 46, 47; Pl. Facts 9199.) Bryan
Edwards, the other budget analyst at the 85th Division, stated that Petron scrutinized everything
he did and gave him a hard time. (id. 48.) Cordell Rich, a reservist who worked under Petron's
supervision for approximately two years, similarly described Petron as Coarse, direct, and
insensitive to all of his employees. (/d.] 49.) Colonel Lynn Barden testified that Petron is “a loose
cannon and can't controt his attitude or temper at times.” (PI. Facts 1100; Transcript of Factfinding
Conference, at 179-80.) Fee himself describes Petron as intense, nota “people person,” abrasive,
and demeaning. (/d. 194.)

During a drill training weekend in July 2000, while Petron was away, Fee received a “myriad
of complaints” from members of Petron’s section about the way Petron conducted himself as a
supervisor. (/d. 96.) Specifically, the employees complained that Petron did not listen properly;
was demeaning to his subordinates; reacted loudly and boisterously when he disagreed with
someone; corrected his subordinates in public; and told his subordinates that they were stupid.
(Army Facts fff 50, 51.) Fee met with each member of the section individually to discuss these
complaints and later learned that Petron had received similar complaints when he worked at other
sections within the division, as well as at other facilities outside the division. (id. 17] 52, 53.)

Also in July 2000, Goodum gave Fee a list of problems and Proposed solutions relating to
Petron. The solutions included “[glive credit where credit is due”; “Petron should take time to learn
each one of my functions in detail”: “Petron should let me know his Specific functions and his role”;

7



‘division who was allowed to work at home but was not required to keep an activity log. (fd. 11 25,
26; Goodum Dep., at 96.)

Goodum worked from home between January 20 and June 21, 2000. The Army supplied
her with a fax machine, high-speed modem, and other equipment to enable her to perform the job.
(id. 1 27.) Goodum claims that Petron told Fee the telecommuting situation was increasing his
workload. Goodum also claims that, after about the third week of her telecommute, Petron started
Calling her on the telephone and saying “Oh, how nice - it must be nice that you get to stay home”;
“Yeah, well, we have to stay here later, and you don't’; and “Must be nice that as a woman... you
get to take these kinds of privileges.” (Pl. Facts 152; Goodum Dep., at 103-04.) During a
telephone conversation on May 11, 2000, moreover, Petron told Goodum that the problem with her
leave ‘is that you said you were going to come back right after [the baby] was born, and now you're
just abusing my ~ you know, generosity.” (!d. 170; Army Fact Resp. 70; Goodum Dep., at 105.)
Shortly thereafter, on May 30, 2000, Goodum purportedly learned froma co-worker that Petron was
spreading rumors that she was abusing her FMLA rights, “thereby creating a negative false
impression of Plaintiff in the work environment.” (/d. 161.) Goodum's only support for this
assertion, however, is her own handwritten note dated January 28, 2000 recording hearsay
statements to that effect from other employees, (Ex. 21 to Pl. Facts.)

lon Complaints About Petron

On April 13, 2000, while Goodum was still working from home, she wrote a letter to Colonel
Fee regarding “a situation with [Petron] and the section staff that is escalating and is creating
dissention [sic] and confusion not only within the section but also throughout the division.” (Army
Facts J 42; Letter from R. Goodum to P. Fee of 4/13/00, Ex. K to Army Facts.) In the letter,
Goodum complained about Petron’s management style, noting his “short tempered, ‘easily-

frazzled,’ and down-talking, rude tendencies.” Goodum also stated that Petron “often treats his



Neely, Ph.D. and Dr. Hong as representatives to answer any questions. (Ex. 166 to Pl. Facts.) On
February 15, 2002, Silva sent Goodum a memorandum acknowledging receipt of her request for
medical leave. Silva was unable to approve the request, however, because Dr. Hong and Attorney
Neely said they did not have Goodum’s authorization to provide information about her medical
condition necessary to process the request. (Army Facts J 125; Ex. DD to Army Facts; Pl. Facts
11343.) Silva stated that he expected to see Goodum at work on February 19, 2002, but she did
not report for duty. (/d. | 126; Ex. DD.)

On February 28, 2002, Petron sent Goodum a Request for Medical Documentation. In that
tequest, Petron stated that he had advanced Goodum 80 hours of sick leave based on Dr. Hong's
vague January 28 note, but that she must submit additional medical documentation to support her
continued absence or face disciplinary action. (/d. ] 127; Ex. EE to Army Facts; Pl. Facts | 334.)
Attached to the request was a Medical Evaluation form asking that Goodum’s physician provide,
pursuant to 5 C.F.R. § 339.104," information regarding the history of her condition, her diagnosis,
her prognosis, and her need for any workplace accommodation. (/d. J 128; Ex. EE.) Neely
responded to the medical request on March 7, 2002, asserting that Petron did not have a right
under the cited regulation to request information about Goodum's medical condition. (id. 129;
Ex. FF to Army Facts.) Neely did, however, submit a February 21, 2002 note from Dr. Riaz Baber
stating that Goodum was under his care with a good prognosis, but that “[iJn my clinical opinion,
she will be on medical leave for two more weeks, as she is suffering from Major Depression.” (Id.
] 130; Note from R. Baber of 2/21/02, Ex. FF to Army Facts.)

On March 2, 2002, Dr. Hong prepared a letter detailing Goodum’'s ailments, including
fatigue, myalgias, paresthesias, and mood alterations dating back to March 2001. Dr. Hong

indicated his belief that her depression symptoms “directly stem from her hostile workplace
—

" Section 339.104 addresses medical qualification determinations under the civil
service regulations.

19



D. Goodum’s Maternity Leave

On June 22, 2000, Goodum gave birth to a healthy baby and began her maternity leave.
Shortly thereafter, on July 31, 2000, Goodum invoked her FMLA rights and she and Petron began
to argue about their different interpretations of the statute. (Army Facts {If 29, 30; Pl. Facts 71189,
191.) Goodum claims that Petron believed she had to begin her twelve weeks of leave on the day
the baby was born. Goodum, on the other hand, wanted to exhaust her three weeks of accrued
annual and medical leave before beginning the twelve weeks of FMLA leave. (/d. 91 31, 32; Pl.
Facts J 147.) On August 10, 2000, Goodum began leave without Pay under the Act. (PI. Facts 7]
192.) One week later, on August 18, 2000, Goodum attended an Army reserve drill training
session and complained to Marlett about Petron’s interpretation of the FMLA. Mr. Skon,’ CPOC,
Personnel Representative and CXO at Fort McCoy, met with Goodum, Petron, and Marlett to
explain the FMLA regulations. (/d. T7152, 153.) Marlett instructed Goodum and Petron to work
out a reasonable schedule by the end of the day that would accommodate the needs of both
Goodum and the Army. (Army Facts | 33; Pl. Facts 111 131, 139.) Goodum believed that she was
allowed to request leave for the birth of her child up to one year after she gave birth. (PI. Facts J
154.) Nevertheless, Goodum and Petron agreed that Goodum would remain on maternity leave
until September 6, 2000. She would then return to work three days per week until January 24,
2001, at which time she would return to work full-time. (Army Facts J 34, 35.) Goodum claims
that she felt pressured to accept this schedule and did so in an effort to show good faith. (PI. Facts
7 195.)

Goodum claims that after she complained to Marlett in August 2000, Petron increased her
workload and created a hostile work environment. By way of example, Goodum asserts that Petron

“insisted on assigning [her] the task, at seven months pregnant, of gathering information from five

—

7 The parties do not provide Mr. Skon’s first name.

9



charge. Id. at 1379. The plaintiff filed suit in federal court pursuant to the 1994 charge, alleging
retaliation and race-based hostile work environment. The defendant argued that the race claim
exceeded the scope of the 1994 charge, but the plaintiff insisted that the claim was “like or
reasonably related to” the allegations of retaliation. /d. at 1380. In allowing the race claim to
proceed, the court noted that “a claim for racial or other discrimination may be reasonably related
to a subsequent claim of retaliatory conduct based on the earlier charges of discrimination.” Id. at
1381.

Unlike the plaintiff in Collins, Goodum filed a single complaint that included a race
discrimination claim along with her claim for retaliatory discharge. That is, the retaliation claim is
not based on her decision to file an earlier charge of race discrimination. “The purpose of requiring
exhaustion of administrative remedies in Title Vil cases is to place the employer on notice of an
impending suit that he can try to head off by negotiating with the complainant.” Horton v. Jackson
County Bd. of County Comm'rs, 343 F.3d 897, 899 (7th Cir. 2003). By voluntarily withdrawing the
race claim, Goodum prevented the Army from negotiating that claim, and failed to exhaust her
administrative remedies. The Army's motion for summary judgment on the race discrimination
claim is granted.

Mi. Rehabilitation Act

Goodum claims that the Army violated the Rehabilitation Act by failing to accommodate her
Pregnancy- and work-related disabilities, and by discriminating against her on the basis of those
disabilities. To recover under the Rehabilitation Act, Goodum must establish that (1) she suffers
from a disability; (2) she is qualified to perform the essential functions of the job in question, with
or without reasonable accommodation; and (3) she has suffered an adverse employment action
as a result of her disability. Jackson v. City of Chicago, 414 F.3d 806, 810 (7th Cir. 2005). The

Army argues that Goodum cannot establish the second element based on her own testimony that

25



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

REBECCA Goopum,
Plaintiff,

v. No. 03 C 3257
THOMAS E, WHITE, Secretary of the

Judge Nan R. Nolan
United States Department of the Army,

Defendant.

MEMORANDUM OPINION AND ORDER
SARUM OPINION AND ORDER

Plaintiff Rebecca Goodum filed suit against Thomas E. White, Secretary of the United
States Department of the Army (“the Army”), alleging sex and race discrimination and hostile work
environment sexual harassment in violation of Title Vil of the Civil Rights Act, 42 U.S.C. § 2000e
et seq.; violation of both the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., and
the Pregnancy Discrimination Act (“PDA”), 42 U.S.C. § 2000e(k); failure to accommodate her
disability in violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq.; and retaliation, The parties
have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. §
636(c). This matter is now before the court on the Parties’ cross-motions for summary judgment.
For the reasons set forth below, the Army's motion is granted and Goodum's motion is denied.

BACKGROUND

Goodum and the Army filed cross-motions for summary judgment on April 4 and 7, 2005,
respectively. On April 26, 2005, the court granted Goodum's motion to Modify the briefing
schedule, setting a response date of May 26, 2005. (Minute Order of 4/26/05, Doc. No. 41 -)
Goodum submitted a responsive memorandum approximately one week late on June 2, 2005, but
she did not respond to the Army’s Local Rule 56.1 Statement of Uncontested Facts. As a result,
the Army filed a motion to deem those facts admitted. Ata hearing before the court on June 15,

2005, Goodum's attorney claimed that he never received the Rule 56.1 Statement of Facts even



‘that Petron was giving her too much work to complete. (Army Facts 62.) At a March 9, 2001
U.S. Army Reserve annual financial management conference in College Park, Georgia, Fee spent
more than an hour with Petron and Goodum attempting to mediate their disagreement. After the
Counseling, Petron’s conduct improved, but only for short periods of time. In response to
Goodum's complaints, Fee reviewed her workload and determined that it was very similar to the
workload performed by other budget analysts at other facilities. Fee also concluded that the goals
Petron set for Goodum were attainable. (/d. 1] 63-65; Army Fact Resp. 1 86; Pl. Facts 17] 135,
136.)

G. Goodum’s Job Applications

On May 16, 2001, Goodum applied for a position “on the military side of the house” as an
EEO G1. (PI. Facts 11 208, 209; Army Fact Resp. | 208.) When Goodum asked Petron to
transfer, he “said no” because he “saw the work load increasing.” (/d. 7 211.) In October 2001,
Goodum applied for a Resource Management Officer ("RMO”) position at the 416th Engineer
Command. That position is comparable to the one held by Petron at the 85th Division and would
have been a promotion for Goodum. (/d. 1 66.) Colonel Gieb® of the 416th Engineer Command
interviewed Goodum for the job. (PI. Facts 7 250.) He also called Petron to inquire about
Goodum's qualifications. Petron told Gieb that Goodum had excellent technical skills but needed
more supervisory skills. (Army Facts { 67; Pl. Facts W251, 254.)

While her application for the RMO position was still pending, Goodum learned in November
2001 about an opening at her level in the personnel section of the 85th Division. (ld. 971.) Prior
to that time, Goodum had complained to Audrey Strubbe, the top civilian employee in the personnel
section, that Petron was “dumping” work on her and that she was unhappy. (Pl. Facts J] 184.) In

addition, Goodum had started experiencing laryngitis; prolonged colds; swollen eyes, nose and

ee
8 The parties do not provide Colonel Gieb's first name.

12



her for being pregnant and not coming to work, she also believes that he would have been just as
upset with her if she did not come to work because she had chickenpox. (/d. 9] 37, 38.)

F. Goodum’s Workload

As previously agreed, Goodum returned to work full-time on January 24, 2001. (Pl. Facts
11196.) On February 23, 2001, she wrote a “Memorandum for the Record” entitled “Workload and
Responsibilities." (Army Facts 160; Ex. O to Army Facts.) In the memorandum, Goodum stated
that Petron often asked her to perform tasks that she believed were his responsibility, and that
“[t]he bottom line for [her] was that [Petron’s] continuous interruptions of [her] daily work [was]
causing [her] work to go by the waist [sic] side.” (Id.) According to Goodum, Petron’s stated
explanation for assigning her his tasks was that he had covered her tasks while she was working
from home and then out on maternity leave. (/d.; Pl. Facts 1176.) Goodum indicated in the
memorandum that she had warned Petron earlier that day that she would complain to the Inspector
General if he made such comments again. Goodum explained that as a former EEO advisor, she
knew that the “first responsibility is that of the offended individual to voice when he or she feels
her/his rights are being violated.” (id.) Goodum claims that she also made verbal complaints to
Fee and Burnett regarding her workload and Petron’s derogatory comments about her maternity
leave, and that she threatened to file an EEO complaint. (PI. Facts 1129.) According to Goodum,
Burnett told her to “hang in there” and warned that “[ylou don’t want to be blacklisted.” (Army Fact
Resp. { 197.)

Shortly thereafter, in early March 2001, Petron began complaining to Fee that Goodum was

not doing her job in an effective manner. At the same time, Goodum began complaining to Fee

8 Goodum directs the court to her October 24, 2004 affidavit as evidence that Burnett

threatened to “black list” her if she filed an EEO complaint. (PI. Facts ff 197, 198, 202.) To the
extent the affidavit contradicts Goodum’s earlier deposition testimony from March 16, 2004, it
cannot be relied upon as a basis for summary judgment. See, e.g., Brill v. Lante Corp., 119 F.3d
1266, 1274 n.4 (7th Cir. 1997) (“[W]e generally discount — indeed, disregard — an affidavit that is
in conflict with a party's deposition testimony.”)

11



allowed to work at home but was not required to keep an activity log. (Army Facts {IJ 25, 26;
Goodum Dep., at 96.) See Peppers v. Climco Coils Co., No. 01 C 50163, 2002 WL 31163753, at
*2 (N.D. Ili. Sept. 30, 2002) (“Peppers’ prima facie case . . . fails because she has not shown
similarly situated non-pregnant employees were treated more favorably than her.”)

In addition, Marlett explained that he required Goodum to complete an activity log so that
Petron could account for her hours and sign her paycard, and so that Marlett had some
documentation to show headquarters that the division was “in control of what was happening.” (/d.
122; Marlett Dep., Ex. H to Army Facts, at 9.) Goodum has no evidence that this legitimate, non-
discriminatory explanation for the activity log is a pretext for discrimination. To the contrary,
Goodum herself believes that an activity log is “a great idea” because “there's always going to be
people to take advantage of the system.” (Army Facts {| 23; Goodum Dep., Ex. E to Army Facts,
at 91.) Goodum also admits that when she failed to complete her activity log on occasion, Petron
never revoked her telecommuting privileges or otherwise disciplined her. Thus, the activity log is
not evidence of discrimination.

2. Workload

Goodum next argues that Petron gave her too much work to complete. On February 23,
2001, she wrote a “Memorandum for the Record” entitled “Workload and Responsibilities,” stating
that Petron often asked her to perform tasks she believed were his responsibility, and that “[t]he
bottom line for [her] was that [Petron’s] continuous interruptions of [her] daily work [was] causing
[her] work to go by the waist [sic] side.” (Army Facts ] 60; Ex. O to Army Facts.) In early March
2001, Petron began complaining to Fee that Goodum was not doing her job in an effective manner.
At the same time, Goodum was complaining to Fee that Petron was giving her too much work. (id.

{| 62.) Fee responded by working with Petron and Goodum to mediate their dispute. He also

32



so —does not amount to an adverse action."® See Herron v. DaimlerChrysler Corp., 388 F.3d 293,
300 n.1 (7th Cir. 2004) (“An adverse employment action is ‘a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.”); Shannon v. Hotel
Employees and Restaurant Employees Int? Union, No. 01 C 9711, 2005 WL 2387689, at "13 (N.D.
Ill. Sept. 22, 2005) (“For purposes of Title VII, an adverse employment action is something more
disruptive than a mere inconvenience or an alteration of job responsibilities.”)

The remaining adverse employment actions may be summarized as follows: (1) Goodum
was required to keep an activity log while she telecommuted; (2) Goodum was given too much work
to complete; (3) Goodum was not allowed to transfer in her civilian capacity to the personnel
section; (4) Petron gave Goodum a bad reference when she applied for the RMO position at the
416th Engineer Command and she did not get the position; (5) Petron gave Goodum a counseling
statement; (6) Goodum was required to perform physical training on the premises; and (7)
Goodum’s request for medical leave was denied. The court considers each in turn.

1. Activity Log

Marlett approved Goodum’s request to work from home between January 20 and June 21,
2000 on the condition that she maintain communication with Petron and submit an activity log for
every pay period. Goodum objects that the log took more time than it was worth to complete and
added to her workload, neither of which rises to the level of an adverse employment action. See
Herron, 388 F.3d at 300 n.1; Buttron v. Sheehan, No. 00 C 4451, 2003 WL 21801222, at *18 (N.D.
Ill. Aug. 4, 2003) (“A simple increase in workload is not enough to show an adverse employment
action”). Even if it did, Goodum has not identified any other employee in her division who was

‘9 Goodum makes much of the fact that the Army discharged her from the reserves

on November 12, 2002. As noted, however, the court has dismissed all claims related to Goodum's
military service.

31



and “[pJersonal development and training development should always be encouraged.” (PI. Facts
1107; Ex. 44 to PI. Facts; Army Fact Resp. | 107.) On August 24, 2000, Fee formally counseled
Petron regarding his poor communication and listening skills. According to Fee, ensuring that
Petron “acted professionally” towards Goodum andall employees was “high on {his] radar screen.”
(Id. 7 95; Army Fact Resp. 1195; Fee Dep., at 30-31; Pl. Facts 1132.) Fee also stated that Petron
was “defensive” during the counseling session. (Pi. Facts 7 133.)

Over the following three months, Fee “often” reminded Petron of his need to improve his
communication skills and directed Petron to meet with members of his staff to improve the overall
communication within the section. (Army Facts ff] 54-56; Fee Dep., at 13.) In that regard, Petron
held at least two open-forum meetings, at which Goodum and other employees stated their
concems about Petron's management style.° Constance Storer stated that she was surprised to
see that Petron remained calm during the meetings, took notes, and appeared to listen to the
employees. (/d. 1[57, 58.) Cordell Rich observed that after the meetings, Petron “made very, very
strong efforts to try and correct his behavior.” Rich stated that Petron “would modify, at least in
some respects, his behavior that [the employees] toid him was offensive to [them], or [they] told
him [they] were concerned about,” and Rich saw a “significant change in [Petron's] behavior
towards [the employees]” over the course of a couple of years. (/d. 159.) Fee also measured
Petron’s progress based on the number of complaints he received “from outside of the
headquarters, from lower subordinate units, from other staff sections within the division

headquarters as well as from the section itself.” (PI. Facts J] 186.)

ee
6

It is not clear when Petron held these open-forum meetings. Presumably, they
Occurred shortly after Fee counseled him in August 2000, but after Goodum had returned from
maternity leave.



On August 21, 2003, Goodum amended the compiaint, eliminating her claim under § 1981
but adding claims for intentional infliction of emotional distress (“IED”); breach of oral contract and
fraud; and fraudulent inducement. On February 2, 2004, the district court dismissed Goodum's
claims for retaliation and reprisal; IED; breach of contract and fraud; and fraudulent inducement;
as well as all claims relating to Goodum's military service."* (Minute Order of 2/2/04, Doc. No. 15.)
Shortly thereafter, on April 5, 2004, the Parties consented to the jurisdiction of the United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). Both parties now seek summary judgment on
the remaining claims for race, sex, disability, and pregnancy discrimination; sexual harassment;
violation of the FMLA; and retaliation under Title VII."

DISCUSSION

Summary judgment is proper when “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). When considering cross-motions for summary judgment, the court must view the
evidence in a light most favorable to the party opposing the motion under consideration. O'Regan
v. Arbitration Forums, Inc., 246 F.3d 975, 983 (7th Cir. 2001). The court's function in tuling on a
motion for summary judgment is not to weigh the evidence, but rather to determine if there is a

genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Where factual

13 Goodum makes repeated reference to incidents relating to her military service on

the theory that it constitutes evidence of a pattern of discrimination. To the extent civil rights
statutes are generally inapplicable to members of the armed forces, the court declines to consider
the evidence in deciding summary judgment. See Gordon v. illinois Army Nat'l Guard, 215 F.3d
1329 (Table) (7th Cir. 2000) (noting that “the special relationship between the military and its
soldiers precludes the application of various federal Statutes to the military . . .")

“ Effective July 31,2004, the Army removed Goodum from her budget analyst position
on the grounds that she remained unavailable for work. Goodum responded by filing a second
federal lawsuit on October 20, 2005 (No. 05 C 6034) alleging, among other things, race, sex, and
disability discrimination arising from her wrongful discharge. That case is currently pending before
Judge Norgle of this court.

22



q is outside the statute’s ambit,’ . . . and an employer cannot be held liable for creating or
condoning a hostile working environment unless the hostility is motivated by gender.” Id. (quoting
Holman v. Indiana, 214 F.3d 399, 403 (7th Cir. 2000)).

In this case, Petron was disrespectful and demeaning to all of his employees regardless of
their gender. Bryan Edwards stated that Petron scrutinized everything he did and gave him a hard
time. Cordell Rich similarly described Petron as coarse, direct, and insensitive to all of his
employees. Colonel Lynn Barden testified that Petron is “a loose cannon and can't control his
attitude or temper at times,” and Fee himself finds Petron intense, not a “people person,” abrasive,
and demeaning. During a drill training weekend in July 2000, Fee received a “myriad of
complaints” about Petron, including that he did not listen properly; was demeaning to his
subordinates; reacted loudly and boisterously when he disagreed with someone; corrected his
subordinates in public; and told his subordinates that they were stupid. Petron’s behavior towards
his employees was undoubtedly unpleasant, but it was not based on gender and, thus, does not
constitute actionable harassment under Title Vil.

Goodum claims that Petron harassed her by making derogatory remarks about her
pregnancy and FMLA leave. As noted, however, Goodum offers nothing but hearsay statements
and gender-neutral comments to support this assertion. Goodum also finds it “undisputable that
Mr. Petron exhibited a malignant heart toward Plaintiff when she began telecommuting.” (PI. Mem.,
at 19.) “[P]ersonality conflicts between employees|, however,] are not the business of the federal
courts.” Vore v. Indiana Bell Telephone Co., 32 F.3d 1161, 1162 (7th Cir. 1994). In any event,
Marlett approved Goodum’s request to telecommute, notwithstanding Petron’s objections. Finally,
there is no support for Goodum’s assertion that in August 2000, Petron “insisted on assigning [her]
the task, at seven months pregnant, of gathering information from five different states and
headquarters, formatting it into an established format and coordinating the division’s $20 million
budget.” (PI. Resp., at 7.) Goodum gave birth on June 22, 2000 and could not have been seven

39



‘months pregnant in August. Goodum concedes, moreover, that Fee withdrew that assignment.
The Army is entitled to summary judgment on Goodum's harassment claim.
Vi. Retaliation

Goodum’s retaliation claim is somewhat vague, but it appears that she is arguing that
Petron retaliated against her for getting pregnant and asking to telecommute. (PI. Reply, at 4-5.)
To establish a prima facie case of retaliation, Goodum must prove that (1) she engaged in
statutorily protected expression; (2) she suffered an adverse employment action; and (3) there was
a causal link between the protected expression and the adverse action. Culver v. Gorman & Co.,
416 F.3d 540, 545 (7th Cir. 2005). Goodum has not cited a single case, nor is the court aware of
any, holding that requesting telecommuting privileges constitutes “protected expression” under the
Act. See, e.g., Patt v. Family Health Sys., Inc., 280 F.3d 749, 754 (7th Cir. 2002) (plaintiff “must
show that she engaged in statutorily protected expression by complaining about discrimination
covered by Title VIl.”) In any event, Goodum cannot establish that she suffered an adverse
employment action as a result of that request. To the contrary, she was allowed to telecommute
for five months and was never disciplined or demoted, even when she failed to complete her
activity log.

Though neither party mentions it, Goodum's EEO complaint certainly constitutes protected
expression for purposes of Title Vil. See Lowell v. Brown, No. 96 C 562, 2000 WL 521726, at *6
(N.D. Ill. Mar. 2, 2000) (‘EEO complaint constitutes protected expression within the meaning of Title
VII.”) As with the discrimination claims, however, Goodum has not identified any adverse actions
resulting from that complaint. Petron attempted to issue Goodum’s counseling statement on
December 31, 2001, two days before she contacted the EEO Office on January 2, 2002.
Moreover, it related not to Goodum's EEO complaint, but to the fact that she left work early on

December 28, 2001 without permission. In addition, the decision to revoke off-premises PT

40



provides that the term "because of sex” includes “because of... pregnancy, childbirth, or related
medical conditions.” 42 U.S.C. § 2000e(k). To establish a claim of sex or pregnancy
discrimination, Goodum may rely on either the direct or indirect method of proof. Under the direct
method, Goodum must either present direct evidence which, if believed by the finder of fact, “will
prove the particular fact in question without reliance upon inference or presumption,” or
circumstantial evidence that establishes a “convincing mosaic” of discrimination. Volovsek v.
Wisconsin Dep't of Agriculture, Trade and Consumer Protection, 344 F.3d 680, 689 (7th Cir. 2003);
Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003). Under the familiar indirect McDonnell
Douglas burden-shifting analysis, Goodum must first establish a prima facie case of discrimination
by proving that (1) she is a member of a protected class; (2) she was performing her job
satisfactorily; (3) she suffered an adverse employmentaction; and (4)asimilarly situated employee
not in the protected class was treated more favorably. Wyninger v. New Venture Gear, Inc., 361
F.3d 965, 978 (7th Cir. 2004); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). If Goodum
succeeds in making out a prima facie case, the Army must articulate a legitimate, non-
discriminatory explanation for the adverse employment action. If it does so, the Army “would then
be entitled to summary judgment unless [Goodum] can rebut this explanation with evidence that
it is pretextual.” /d. at 978-79 (citing Gordon v. United Airlines, inc., 246 F.3d 878, 886 (7th Cir.
2001)).

A. Direct Evidence

Goodum argues that Petron’s derogatory comments about her “in conjunction with [her]
announcement of her pregnancy and telecommuting status” constitute direct evidence of
discrimination. (PI. Mem., at 23.)'"7 Goodum claims, for example, that Petron called her while she

was telecommuting and made the following statements: “Oh, how nice - it must be nice that you

7

Plaintiff's F.R.C.P. 56 Memorandum of Law in Support of Motion for Summary
Judgment is cited as “PI. Mem., at__.”

28



‘tisk Pregnancy and might place her on bedrest.> (id. 1 38; Army Facts 712.) Petron was

“shocked” by the news given his recent arrival at the Division and the significant increase in
workload there, but he told Goodum he would do everything he could to help. (Army Facts 714;
Transcript of Factfinding Conference, Ex. C to Army Facts, at 64-65.)

On December 1, 1999, Goodum sent Petron an email message proposing that in the event
she was placed on bedrest, she be allowed to work from home. Goodum explained that this would
be her last Opportunity to have a child but that she did not want to take a leave of absence because
she “cannot afford to go on leave-without-pay” and “because | know the transition of the division
has brought about numerous changes and tasks to accomplish.” (/d. 115; Email from R. Goodum
to C. Petron of 12/1/99, Ex. F to Army Facts; Army Fact Resp. 9] 40.) At the time, telecommuting
was a new concept at the 85th Division, so on December 5, 1999, Petron sent an email message
to the Commanding Executive Officer ("CXO") of the 416th Engineer Command, James G. Murphy,
to inquire how that facility had handled a similar request. (/d. i] 16, 17; Email from C. Petron to
J. Murphy of 12/5/99, Ex. | to Army Facts.) Murphy responded that the Army brought the
employee, who was carrying twins and could not drive due to her high-risk pregnancy, 201 files that
she could correct, update, and pay from home. (Ex. 1.)

On December 9, 1999, Goodum’s doctor prepared a note Stating that she should work at
home after the 14th week of pregnancy. (Ex. 8 to Pl. Facts.) Sometime thereafter, Petron told the
85th Division's CXO, Wayne Marlett, about Goodum’'s request to telecommute. Marlett met with
Goodum, Petron, and the 85th Division's Chief of Staff, Colonel Raymond Canton, to discuss the
issue. During the meeting, Petron expressed concern about his ability to monitor Goodum’s work
and supervise her effectively. (Army facts T1119, 20, 40; Pl. Facts 11 30, 47, 97.) His handwritten

notes from the meeting state, in part:

5

Goodum had a son who died in infancy and two late-term miscarriages. (Army Facts
7 13.)

4



1 Goodum's Employee Objectives

Once a year, Petron prepared a list of objectives for each of his subordinates after
discussing with his supervisor the section’s overall objectives. Petron generally emailed each
employee a copy of his or her prior year objectives and asked for feedback for the coming year.
(Id. 1189, 90.) Petron emailed Goodum a final list of objectives on December 20, 2001. One week
later, on December 28, 2001, Goodum sent Petron and Silva an email message stating that she
would not sign the objectives because they were unattainable and Prepared without her input. (/d.
791; Email from R. Goodum to C. Petron of 12/28/01 , Ex. Q to Army Facts; Pl. Facts 7299.) Silva
asked Petron why he had given Goodum a list of objectives without getting her input, and Petron
explained that Goodum was the only employee in the section who failed to respond to his email
seeking feedback. (/d. Jf 92, 93.)

Petron acknowledges that he increased Goodum’s “civilian performance objectives’ in order
to “obtain greater output.” (PI. Facts 1118.) According to Audrey Strubbe, the supervisor has final
approval over the objectives, and the Comptroller makes the final decision in the event of an
impasse between the employee and the supervisor. (/d. 120.)

J. Goodum’s Physical Training

All dual-status employees in the 85th Division were granted three hours per week for
physical training (“PT”) so that they could stay in shape and pass their military training tests. The
85th Division had its own gym on the premises, but an unwritten policy allowed employees to
perform PT off-site. Goodum opted to conduct her PT at home and Edwards, similarly, performed
his physical training at a private health club. {Army Facts ff] 94, 95; Pl. Facts 7 156, 159, 160,
162.) On December 28, 2001, Goodum left work early without permission to do her PT. Petron
attempted to issue Goodum a formal counseling statement on December 31, 2001, but she asked

to have a witness present, and Petron agreed. (/d. | 96; Developmental Counseling Form, Ex. T

15



statement was to establish definitive guidance regarding Goodum's PT plan and hours of work.
(Army Facts If] 97-99; Ex. T.) Goodum submitted a rebuttal to the counseling statement claiming
that she could not have completed the project even if she had worked all weekend, and stating that
“| had my coat on at this point, I told everyone to have a nice weekend, and [I] left for the day.” (Id.
1110; Ex. W to Army Facts.)

The next day, on January 9, 2002, Silva issued a policy stating that all employees in the
section would be required to conduct PT on the premises. (/d. {| 106; Ex. V to Army Facts.)
Goodum believes that all employees except her were exempt from the policy, but Edwards testified
that he was no longer allowed to do PT away from the facility after that date. (Pl. Facts | 169;
Army Fact Resp. [ 169.) Silva also met with Goodum and Colonel Thomas Burnett" “in an attempt
to facilitate a resolution to this conflict” regarding Goodum's hours and workload. (Army Facts J
111; Silva Dep., at 31.) During the meeting, Silva asked Goodum to prepare a list of her core
duties and to explain the problems that existed with her workload. Goodum submitted the list on
January 14, 2002. (/d. 9] 112, 113.)

K, Goodum’s Continued Workload Complaints

On January 11, 2002, Goodum met with Major General Allen to discuss a transfer to the
Personnel section. At the meeting, Goodum gave Allen a “Memorandum for Record” stating that
she had filed an EEO complaint because Petron was harassing her in retribution for her attempts
to leave the section. (id. WM 114, 115; Ex. Z to Army Facts.) Allen read the entire four-page
document in Goodum's presence and asked her questions as he went through it. In response to
Goodum’s request for a transfer, Allen told her the procedure for filling vacancies at the Division.
With respect to her discrimination complaint, Allen stated that he would take her concerns under

advisement but that based on his training, he did not think the items she listed tose to the level of
ee
10

Burnett became Chief of Staff of the 85th Division in July 2000. (Army Fact Resp.
192.)

7



q 2.7 In July 1999, she was promoted to a Level 11 Budget Analyst and assigned to the 85th
Training Support Division in Arlington Heights, Illinois. (id. J 2.) In that position, Goodum was
tesponsible for the Operation Maintenance Army (“OMA") fund and was expected to assist and
manage this fund for both the 85th Division and the First Brigade, which did not have a separate
budget analyst. (PI. Facts 18.) She was also required to maintain membership in the United
States Army Reserve, which meant that she worked as a civilian employee during the week and
as a soldier during drill weekends. (Army Facts 713.) Bryan Edwards, a trainee with no prior
budgetary experience, worked as the other budget analyst for the 85th Division. Given his lack of
experience, Edwards was assigned to the Reserve Personnel Army (“RPA”) fund, which entailsless
detailed objectives than the OMA fund. (ld. J 6-8; Army Fact Resp. | 10.)*

On October 25, 1999, Charles Petron became the Resource Management Officer for the
85th Division and Goodum’s and Edwards’ immediate Supervisor. (Id. I] 4, 5; Pl. Facts 135.)
Shortly before Petron's arrival, the 85th Division was reorganized to become an “active component
headquarters” and one of five training facilities in the country. (/d. 1] 9, 10.) As a result of the
integration of the active duty component and the Army reserve system, the pace of work at the
Division “escalated unbelievably.” (id, 9111.)

B. Goodum’s Pregnancy and Telecommute

On November 11, 1999, Goodum learned that she was pregnant, (PI. Facts 37.)

Approximately two weeks later, Goodum told Petron that her doctor had diagnosed her with a high-

2 Defendant's Local Rule 56.1 Statement of Uncontested Facts is cited as “Army

Facts f]__.” Plaintiff's F.R.C.P. Rule 56 Statement of Undisputed Facts in Support of Motion for
Summary Judgment is cited as “Pl. Facts ]__.”

s Goodum is a Major in the Reserves. (Pl. Facts 24.)

4 Defendant's Response to Plaintiff's Rule 56 Statement of Facts is cited as “Army

Fact Resp. J _"



In any event, the change in PT policy is not evidence of discrimination because Silva issued
a policy on January 9, 2002 stating that it applied equally to all employees in the section. (Ex. V
to Army Facts.) Goodum believes that all employees except her were in fact exempt from the
Policy. Edwards testified, however, that he was no longer allowed to perform PT away from the
facility after that date. Constance Storer did testify that she never had to perform her PT on the
premises, but she also stated that she left the 85th Division in November 2000, long before Silva
issued the policy. (Storer Dep., at 165.)

7. Medical Leave

Goodum finally argues that “Petron’s denials of medical leave is an adverse employment
decision.” (PI. Reply, at 6.) The court disagrees. Goodum began a medical leave of absence on
January 29, 2002, and she remained on leave at least until the date of her deposition on March 16,
2004, more than two years later. Goodum has not provided any basis for her assertion that she
was denied medical leave, much less that she was discriminated against for requesting the leave.

In sum, Goodum has not established claims for either sex or pregnancy discrimination and
the Army's motion for summary judgment on these claims is granted.
Vv. Harassment

Both parties next seek summary judgment on Goodum’s claim that Petron subjected her
to a hostile work environment because of her gender in violation of Title VII. To be actionable,
harassment must occur “because of” the plaintiff's sex, and “must be sufficiently severe or
pervasive to alter the conditions of [plaintiff's] employment and create an abusive working
environment.” Rizzo v. Sheahan, 266 F.3d 705, 711-12 (7th Cir. 2001) (quoting Cooke v. Stefani
Mgmt. Servs., Inc., 250 F.3d 564, 566 (7th Cir. 2001)). Title Vil “is not a ‘general civility code’
designed to purge the workplace of all boorish or even harassing conduct.” Berry v. Delta Airlines,

Inc., 260 F.3d 803, 808 (7th Cir. 2001). “Inappropriate conduct that is ‘inflicted regardless of sex

38



‘she suffers from a variety of conditions that cause her Severe pain and prevent her from working
as a budget analyst. Goodum stated that her eye twitches so badly that she cannot read for hours
at a time. She also has muscle spasms in her hands that prevent her from writing or using a
computer, which constitutes 80% of a budget analyst's job. Goodum stated that she finds
everything overwhelming and spends most of her days going to the doctor and sleeping. As of
March 16, 2004, Goodum felt absolutely incapable of performing the duties of a full-time budget
analyst and could not anticipate any date in the future when she might feel capable of returning to
work. (Army Facts J 132-34; Pl. Facts ] 372.)

Goodum responds that her “testimony regarding her condition was only related to her then
current position” as of the date of her deposition. (PI. Resp., at 31.) Significantly, however,
Goodum has not offered any evidence regarding her current medical condition, much less evidence
that demonstrates her ability to perform the essential functions of her job. Nor does Goodum
indicate that she is capable of returning to work if she is “remove[d] . . . from the wrath of Mr.
Petron.” (id. at 37.) Goodum’s doctor’s notes consistently confirmed that she was unable to return
to work under any circumstances. Most recently, Dr. Hong wrote a September 10, 2004 note
stating that Goodum “suffers from multiple medical conditions that have prevented her from
working full-time.” (Ex. 257 to Pl. Facts, at 47.) Moreover, the Army granted Goodum a medical
leave of absence for more than two years, from January 29, 2002 until at least March 16, 2004.
(Army Facts | 131.) This satisfies any requirement that the Army provide Goodum a reasonable
accommodation. Basith, 241 F.3d at 932 (medical leave of absence qualified as a reasonable
accommodation); Corder v. Lucent Technologies Inc., 162 F.3d 924, (7th Cir. 1998) (medical leave
of absence is a reasonable accommodation even if not the accommodation the employee requests
or prefers); Byrne v. Avon Prods., inc., 328 F.3d 379, 381 (7th Cir. 2003) (‘Inability to work for a

multi-month period removes a person from the class protected by the [Rehabilitation Act].”); Foley

26



‘though the Army sent it in the same Federal Express Package as the supporting memorandum.
The court instructed Goodum’s attorney to submit a sworn affidavit regarding the document by
June 21, 2005. (Minute Order of 6/15/05, Doc. No. 47.)

Rather than submitting a sworn affidavit, Goodum's attorney filed an unsworn Response
to Defendant's Motion to Deem Facts Admitted, in which he again maintained that he had never
received the Rule 56.1 Statement of Facts and wanted the Army to serve it on him in open court.
Even assuming this unlikely assertion is true, the supporting memorandum refers extensively to
the Army's statement of facts, yet Goodum's attorney apparently made no effort to obtain a copy
of that document. Significantly, to this date, Goodum has still not submitted any response to the
Army's statement of facts. As a result, those facts are deemed admitted in their entirety. See
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“We have Consistently held that a failure to
respond by the nonmovant as mandated by the local rules results in an admission.”); Washington
v. City of Chicago, No. 04 C 4502, 2005 WL 2322431, at *1 (N.D. Ill. Sept. 20, 2005) (“By failing
to respond to defendants’ LR 56.1(a) Statement, Washington has admitted all of the properly
supported facts set forth in it”) Nevertheless, the court will also review Goodum’s statement of
facts in assessing the merits of summary judgment, and will consider all relevant, admissible, non-
hearsay statements that are Properly supported in the record,’

A. Plaintiff's Employment

Goodum, a Hispanic female, was hired to work for the Army on April 17, 1994 as a Level

9 Budget Analyst with the 416th Engineer Command in Darien, Illinois. (Army Facts J 1; Pl. Facts

1 The court notes that Goodum’s statement of facts includes 374 separate
Paragraphs, many of which are duplicative or not Supported by the record. In a proposed

will be more than sufficient to determine whether the case is appropriate for summary judgment.”
(Proposal to Amend the Local Rules, Committee Comments) (emphasis added).

2



3. Transfer to Personnel Section

In November 2001, Goodum learned about an opening at her level in the personnel section
of the 85th Division. Goodum talked to Audrey Strubbe, the top civilian employee in the personnel
section, and the person who, according to Goodum, would make the hiring decision. Goodum
claims that Strubbe was very excited about her interest and stated that she “would love for
[Goodum] to come downstairs” and work in her section. Goodum also admits, however, that
Strubbe told her that she would have to “rate out” for the position —i.e., “fill out a packet with all of
[her] qualifications.” (Goodum Dep., at 130.) As Strubbe explained, employees who want to
“lateral into a position” must submit a packet in order to get qualified, and employees who fail to
submit a packet “can't get lateraled into that position.” (Army Facts {| 78.)

To establish a prima facie case of failure to transfer or hire, Goodum must show, among
other things, that she applied for the position sought and that the position went to someone outside
the protected class who was not better qualified. Rabinovitz v. Pena, 89 F.3d 482, 486 (7th Cir.
1996). “If an employer has a ‘formal system of posting job openings and allowing employees to
apply for them,’ then the employee’s failure to apply for an open position ‘would prevent her from
establishing a prima facie case.” Coleman v. City of Chicago, No. 02 C 4141, 2003 WL 22057018,
at “6 (N.D. Ill. Sept. 4, 2003) (quoting Box v, A & P Tea Co., 772 F.2d 1372, 1376 (7th Cir, 1985)).
Here, employees seeking a lateral transfer were required to “rate out” for the open position by
submitting a packet with their qualifications. Goodum never submitted such a packet; Beverly
Kozlowski, the person ultimately hired for the personnel position, did submit a packet. On these
facts, the Army's decision not to transfer Goodum to the personnel department does not support

her discrimination claim.

34



get to stay home”; “Yeah, well, we have to stay here later, and you don’t”; “Must be nice that as a
woman . . . you get to take these kinds of privileges”; and the problem with Goodum’s leave “is that
you said you were going to come back right after [the baby] was born, and now you're just abusing
my — you know, generosity.” As a preliminary matter, it is not clear how Petron’s statements relate
to any adverse employment decision. See Venturelli v. ARC Community Servs., Inc., 350 F.3d
592, 602 (7th Cir. 2003) (“For . . . a statement to be sufficient circumstantial evidence under the
direct method, the remark in question must be ‘directly related to the employment decision.”) It
is undisputed that Marlett approved Goodum's request to work from home, and that she received
her FMLA leave.

Goodum claims that Petron engaged in a “smear campaign” against her at work by referring
to her pregnancy as a “show stopper,” and by telling her co-workers that she was abusing the
FMLA and was “not a team player.” Again, Goodum has not explained how she suffered any
adverse employment action as a result of these statements. Even assuming she did, Lynn Barden
is the only person who testified that Petron said Goodum was “nota team player, wasn’t supporting
the unit, and was not doing her job.” (PI. Facts 171; Transcript of Factfinding Conference, at 177.)
None of these statements relates in any way to Goodum's gender or pregnancy, nor do they create
an inference of intentional discrimination. See, e.g., Somerville v. City of Chicago, 291 F. Supp.
2d 737, 744 (N.D. Ill. 2003) (statement that the plaintiff had “a hurdle to get over” because she was
black did not indicate that the decision-maker “was inclined to discriminate against [her] because
of her race.”); Koszola v. Board of Ed. of City of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004)
(internal quotations omitted) (circumstantial evidence of discrimination under the direct method
“must point directly to a discriminatory reason for the employer's action.”)

Aside from Barden’s testimony, Goodum’s only evidence of a “smear campaign” is her own
testimony recounting hearsay statements from co-workers who purportedly told her that they heard
Petron make negative statements about her. Such hearsay testimony is not sufficient to establish

29



ears: bladder infections; and diabetes. (Id. $291.) Goodum talked to Strubbe about the personnel
Position and claims that Strubbe was very excited about her interest and stated that she “would love
for [Goodum] to come downstairs” and work in her section. Goodum asked Strubbe whether she
could wait to fill the position because Goodum had not yet heard about the RMO position. Strubbe
told Goodum that she could wait about a month, but that Goodum would have to “rate out” for the
Position —i.e., “fill out a packet with all of [her] qualifications.” (Id. Il 72-76; Goodum Dep., at 130.)
Strubbe testified that employees who want to “lateral into a position” must submit a packet in order
to get qualified, and that employees who fail to submit a Packet “can't get lateraled into that
Position.” (/d. 78.)

Goodum claims that when she told Petron and Silva that she wanted to transfer, both men
became upset. (PI. Facts 1220-23.) In any event, Goodum never submitted a packet containing
her qualifications for the personnel position and Beverly Kozlowski, who did submit such a packet,
was ultimately hired. Goodum insists that Strubbe told her she did not need to submit a
qualifications packet but, as Noted, she also admits that Strubbe told her she had to “rate out” for
the position. (/d. 1] 231, 232; Goodum Dep., at 130.) Strubbe Says that if Goodum had submitted
a qualification packet, Strubbe would have had no problem Placing her in the position. (/d. 9979,
80.) Indeed, Burnett told Goodum that she “deserve[d]" the position if she wanted it. (Pl. Facts |
219.) On February 4, 2002, Goodum learned that the RMO position at the 446th Engineer
Command went to Debra McDonald, Goodum believes she did not get the job because of Petron’s
comments to Gieb about her lack of supervisory skills, but she admits that she does not know what

criteria the hiring official at the 416th used to select the successful candidate. (Army Facts I] 68,
69; Pl. Facts J 255, 285.)

13



to Army Facts.) Later that day, Goodum sent an email message to Major General Allen to request
“a possible lateral transfer" to the personnel section. (/d. f[ 100; Ex. R to Army Facts.) Two days
later on January 2, 2002, Goodum contacted the Army’s EEO office about filing a complaint of
discrimination. (/d. | 101.) Renee Johnson from EEO contacted Goodum the next day to inform
her of her rights and to interview her about her claims. (PI. Facts ] 309.) Goodum filed a formal
EEO complaint on February 12, 2002, alleging race, sex, and physical handicap discrimination, as
well as reprisal. (Ex. 165 to Pl. Facts.)

On January 7, 2002, Petron sent Goodum an email message inquiring why she had left the
office at 2:00 p.m. that day. (Army Facts J 102; Ex. S to Army Facts.) Goodum responded the
next day, stating that she had left for PT. Petron replied to Goodum’s email message stating that
Goodum had to conduct her PT on the premises, and attaching a “Memo for the Record” to that
effect he had prepared on December 31, 2001. (/d. §¥]} 103, 104; Exs. S and U to Army Facts.)
In response, Goodum emailed Petron accusing him of discriminating against her with respect to
her PT and attempting to “harass [her] because [she] want[ed] to leave the section.” (id. 1 105; Ex.
S.)

Also on January 8, 2002, Petron asked Audrey Strubbe to act as a witness while he issued
Goodum’s counseling statement, even though he knew Goodum was trying to transfer to Strubbe’s
section. (Id. | 107; Pl. Facts J 239.) According to Strubbe, the meeting was very uncomfortable
for all three individuals, and though Petron kept his temper, Goodum did not. (/d. J] 108, 109.)
Strubbe also indicated that if she were an impartial observer, “not knowing Mr. Petron or Ms.
Goodum prior to counseling,” she would have thought Goodum was “totally out of control and
insubordinate.” (Pl. Facts 4 240.)

The counseling statement noted that civilian employees could only leave early if they had
Permission from a supervisor, and that Goodum did not have permission on the date in question
because she had not yet completed a project. Petron indicated that one Purpose of the counseling

16