U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Amado C.,1
Complainant,
v.
Mark Esper,
Acting Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120181840
Hearing No. 450-2016-00106X
Agency No. DeCA-00113-2015
DECISION
On May 11, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), concerning his equal
employment opportunity (EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The
decision of the EEOC Administrative Judge (AJ) became the final order of the Agency by
operation of law. For the following reasons, the Commission AFFIRMS the Agency’s final order.
ISSUES PRESENTED
The issues presented are whether the AJ’s issuance of summary judgment was proper and whether
Complainant has established by a preponderance of the evidence that the Agency discriminated
against him.
BACKGROUND
At the time of the complaint, Complainant worked as a Meat Cutter, WG-7407-07, at the Agency’s
Randolph Air Force Base Commissary (Commissary) in Texas. He sustained an injury to his hand,
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
01201818402
unrelated to his work, in December 2014. He returned to full duty work in January 2015.
Complainant retired from his position in May 2015.
On May 18, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Hispanic)2 and sex (male) when: (1) it denied him light duty
work; and (2) it failed to restore 152 hours of leave to him.3
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing. The AJ issued a Notice of Intent to Issue
Summary Judgment (Notice of Intent). The AJ indicated in his decision that Complainant filed a
response to the Notice of Intent, but that the Agency did not file a response.4 The AJ issued a
Decision and Order Entering Judgment, April 11, 2018. On April 18, 2018, the AJ also issued an
Order Entering Judgment. The Certificate of Service indicates that there was a five-day
presumption of receipt. When the Agency failed to issue a final order within forty days of receipt
of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R.
§ 1614.109(i).5
CONTENTIONS ON APPEAL
Neither of the parties submitted briefs on appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
2 The Commission has consistently held that “Hispanic” is not a racial classification but one of
national origin. Nevertheless, we find that Complainant's identification of race as “Hispanic” does
not affect the disposition of this case.
3 In a submission to the AJ, Complainant specifically expressed that he was not claiming
discrimination on the basis of disability.
4 We note that although the Agency may not have responded to the Notice of Intent, the record
contains the Agency’s Motion for a Decision without a Hearing, dated September 18, 2017, and
filed on September 22, 2017, with service on the AJ previously assigned the hearing request,
although he was not the AJ who was subsequently assigned to this complaint.
5 EEOC Regulation 29 C.F.R. § 1614.109(i) provides that if an agency does not issue a final order
within 40 days of receipt of the AJ’s decision in accordance with § 1614.110, the decision of the
AJ shall become the final action of the Agency. The Agency did not issue a final order until July
9, 2018. Using the rebuttable presumption of receipt of the AJ’s April 2018 decision within five
days of mailing, the AJ’s decision in this matter became the Agency’s decision by operation of
law in June 2018. Also, Complainant’s appeal, premature when filed in May 2018, is now cured
and ripe for adjudication.
01201818403
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, (EEO MD-
110), at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires
that the Commission examine the record without regard to the factual and legal determinations of
the previous decision maker,” and that EEOC “review the documents, statements, and testimony
of record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).
ANALYSIS AND FINDINGS
This matter was decided on summary judgment. Therefore, we determine whether it was
appropriate for the AJ to have issued a decision without a hearing on this record. The
Commission’s regulations allow an AJ to issue a decision without a hearing when no genuine issue
of material fact exists. 29 C.F.R. § 1614.109(g); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could
find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v.
Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential
to affect the outcome of the case.
The AJ’s function is not to weigh the evidence but rather to determine whether there are genuine
issues for trial. Id. at 249. In considering whether summary judgment is proper, the evidence of
the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Anderson v. Liberty Lobby, 477 U.S.
at 255.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding
a hearing is not appropriate. In addition, in the context of an administrative proceeding, an AJ
may properly consider issuing a decision without holding a hearing only upon a determination that
the record has been adequately developed for summary disposition. See Petty v. Dep’t of Def.,
EEOC Appeal No. 01A24206 (July 11, 2003).
Upon our de novo review of the record as a whole, the AJ’s decision and the timely submissions
of the parties, we find that summary judgment was appropriate and the Agency was entitled to a
grant of summary judgment as a matter of law. There exists no genuine issue of material fact; the
record is adequately developed; and no findings of fact need be made by weighing conflicting
evidence or assessing witness credibility.
Complainant alleged that the Agency unlawfully discriminated against him by allegedly subjecting
him to disparate treatment. To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by
demonstrating that he was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13.
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The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is
pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Where the Agency has articulated legitimate, nondiscriminatory reasons for its actions, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas analysis. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
We find that Complainant has failed to show that others similarly situated, outside of his protected
groups, were treated more favorably than he was. Further, assuming that Complainant established
a prima facie case of discrimination based on national origin and sex, the Agency articulated
legitimate, non-discriminatory reasons for its actions. The record reveals that Complainant
sustained a fractured hand on December 19, 2014, unrelated to his work. He returned to work on
December 29, 2014, with his hand in a cast and with a lifting restriction of two pounds. He
requested light duty work consistent with the lifting restriction. The Meat Department Manager,
Complainant’s first level supervisor, explained that Complainant was not provided light duty
because there was no light duty work available within Complainant’s restrictions in the Meat
Department. He also explained that as a Manager, he knew that other positions in other
departments of the Commissary required some degree of training which Complainant had not
received. Complainant, he stated, had worked as a Meat Cutter for the past 35 years. The Meat
Department Manager noted that Meat Department employees were specialized laborers, unlike
Store Workers or Store Associates, and were not cross-trained to work in other departments. He
explained that there were no other employees in the Meat Department given light duty outside of
the Meat Department and, also, there were no other employees on light duty who had suffered a
non-work-related injury. Complainant’s leave was not restored to him because he used leave when
he could not work as a Meat Cutter and light duty work was not available. Complainant returned
to full duty approximately within a month of injuring his hand.
Complainant has failed to show that the reasons articulated by the Agency for not providing him
with light duty work were pretextual, that is, not the true reason for its actions. Complainant
compared himself to two female employees that he claimed were treated more favorably by being
provided light duty. However, one was a Hispanic, as was Complainant. Additionally, both
women were not similarly situated because they worked as Store Associates and were not
supervised by the Meat Department Manager. Complainant also identified two males that he
alleged received more favorable treatment. However, although both were Meat Cutters, both were
of the same sex as Complainant; one was Hispanic; and the Meat Department Manager had not
supervised them. Complainant has also not shown that the Agency’s reason for not restoring his
leave was pretextual.
01201818405
Construing the evidence in a light most favorable to Complainant, he has failed to show by a
preponderance of the evidence that it was discriminatory animus that motivated the Agency’s
actions. At all times, the ultimate burden remains with Complainant to demonstrate by a
preponderance of the evidence that the Agency's reasons were not the real reasons and that the
Agency acted on the basis of discriminatory animus. He has not done so.
CONCLUSION
Based on a thorough review of the record, including evidence not specifically addressed herein,
we AFFIRM the finding of the Administrative Judge that the Agency did not discriminate against
Complainant when it did not provide him with light duty work and did not restore his leave.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
01201818406
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
July 19, 2019
Date
