EEOC Appeal 2020000147

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alfonso C., 1
Complainant,
v.
Matthew P. Donovan,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 2020000147
Hearing No. 570-2016-01075X
Agency No. 9N0D15006
DECISION
On October 4, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s March 28, 2019 final order concerning an equal employment opportunity (EEO)
complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Cashier, NF-0530-1, at the Agency’s 86 th
Force Support Squadron, Ramstein Air Base in Germany.
On October 16, 2015, Complainant filed a formal complaint alleging that the Agency discriminated
against him based on disability and in reprisal for prior EEO activity (Docket No. 9NOD12005)
when, on August 28, 2015, he became aware three other employees were converted to regular
positions from flex positions and he was not.
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.

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After its investigation into the formal complaint, the Agency provided Complainant with a copy
of the report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely
requested a hearing. The Agency submitted a motion for a decision without a hearing. Complainant
did not respond. 2 The AJ subsequently issued a decision by summary judgment in favor of the
Agency.
The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove
discrimination as alleged. The instant appeal followed.
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 	In
rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. 	See 29 C.F.R. § 1614.405(a)(stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).
To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant has failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.
In his decision, the AJ noted that that Complainant was employed as NF-01 Cashier with the 86 th
Force Support Squadron at Ramstein Air Base, Germany, operating in flex status.
On or about August 28, 2015, Complainant learned that three employees were converted to regular
part-time status from flex status. Upon learning other employees were converted to regular part-
time positions, Complainant did not ask management why he was not converted.
2 The record reflects that instead of responding to the Agency’s Motion for Summary Judgment,
Complainant filed a Motion to Strike on January 12, 2018, in which he did not contest that fifteen
(15) days from the close of discovery was January 11, 2018, and that his Motion to Strike was
dated January 12, 2018. In response to Complainant’s appeal, the Agency argued that even if the
Commission considered the Agency’s motion without a hearing submitted on December 27, 2017,
Complainant failed to timely respond to the Agency’s motion.

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The AJ noted that for a party to be considered for a regular position, the position is posted and
identified as a regular position when applications are accepted, or an individual must work 780
hours (30 hours/per week) prior to the semi-annual review. One of the three employees (Employee
1) applied for a different position title, Mobile Equipment Servicer, and the position was identified
as a regular position. 	Employee 1 was not converted into a regular Cashier. 	The other two
employees both worked in the Auto Hobby Shop while Complainant worked in the Auto Hobby
Recycling Center.
The AJ further noted that from September 2013 through September 2015, Complainant had
worked no more than 531.75 hours during the six-month period for the semiannual flexible
workforce review.
Complainant applied and took a downgrade position from being a flex Tool and Parts Attendant
to be appointed as a flex Cashier in July 2014. Complainant’s pay decreased from $12.88 per hour
to $8.00 per hour. He chose to apply for and accept a lower paying job to avoid an impact on his
disability payments. In addition, Complainant’s medical condition only allowed him to be able to
work three days per week.
Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the
evidence did not establish that Complainant was discriminated against by the Agency as alleged.
We AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing, finding no
discrimination. 3
3 In response to Complainant’s appeal, the Agency argues that Complainant’s appeal should be
dismissed because it was untimely filed. Because we affirm the Agency’s final order adopting the
AJ’s finding of no discrimination, we find it unnecessary to address this matter.

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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.
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.

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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
September 3, 2020
Date