EEOC Appeal 2025000754

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Mathew R.,1
Complainant,
v.
Troy E. Meink,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 2025000754
Agency No. 6T0M2302937F24
DECISION
Complainant 	timely 	appealed 	with 	the 	Equal 	Employment 	Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s October 22, 2024, final agency decision (FAD) 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. 	For the following
reasons, the Commission MODIFIES the Agency’s final decision.
At the time of events giving rise to this complaint, Complainant was an applicant
for employment with the Agency’s 911th Air Force Support Squadron (FSS),
Military 	Family 	Readiness 	(FSFR), 	at 	Pittsburgh 	Air 	Reserve 	Station,
Pennsylvania.
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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Complainant previously worked for the 911th FSS/FSFR as an Airman & Family
Readiness Program Manager, GS-12, but his employment was terminated on
November 6, 2021.2
On April 7, 2023, Complainant filed a Formal EEO Complaint alleging that the
Agency subjected him to discrimination on the bases of sex (male), disability
(mental and physical), and reprisal for prior protected EEO activity when:
1. On February 6, 2023, Complainant was notified through USA Jobs
that 	he was 	not 	selected 	for 	the position 	of Airman 	& Family
Readiness Program Manager, GS-0101-12, (Program Manager), 911th
FSS/FSFR;
2. On February 14, 2023, Complainant was informed by the Total Force
Service Center that the Agency (falsely) stated that his disability
information was not included with the application materials; and
3. On January 30, 2023, Complainant was not provided the opportunity
to 	interview 	for 	the 	Program 	Manager 	position, 	as 	were 	other
applicants, 	even 	though 	he 	has 	a Veterans 	Administration 	(VA)
disability documented with Schedule A letter.
The Mission Support Group Commander (MSG Commander) was the hiring
officer for the Program Manager vacancy referenced in this complaint. 	MSG
Commander was also the deciding official for Complainant’s November 6, 2021,
termination, 	and 	she 	was 	named 	as 	a 	responding 	management 	official 	in
Complainant’s prior EEO complaint. At MSG Commander’s recommendation,
Complainant’s application was not considered for the Program Manager vacancy.
2 	The 	Commission 	takes 	judicial 	notice 	of 	the 	decision 	and 	case 	file 	for
Complainant’s prior EEO complaint, Theo B. v. Department of the Air Force,
EEOC 	Appeal 	No. 	2023001038 	(February 	13, 	2024) 	(Agency 	No.
6T0M2100478F22) reconsideration denied EEOC Request No. 2024002583 (April
2, 2025). The record for Theo B. contains the Notice of Decision to Remove, dated
November 3, 2021, and the allegations in the complaint are related to the stated
grounds for Complainant’s removal. The Commission found that Complainant
failed to prove discrimination as alleged.

2025000754	3
When Complainant filed the instant complaint, he included a claim that the Agency
implemented “a policy of blackballing or blacklisting [Complainant] from being
hired into any position.” When the Agency issued a Letter of Acceptance omitting
the blacklisting claim, Complainant notified the Agency multiple times, but the
Agency failed to investigate or render a decision regarding blacklisting.
Prior to the completion of the investigation, Complainant filed four requests to
amend his complaint. 	After initially failing to respond, the EEO Administrator
informed the EEO Investigator that the Agency did not accept Complainant’s
amendments due to “abuse of process.” The Agency did not issue an appealable
decision on Complainant’s amendments or forward the amendments for processing
as separate EEO complaints. Complainant filed a fifth request to amend the instant
complaint after the investigation concluded.
After investigating Claims 1, 2, and 3, the Agency provided Complainant with a
copy of the report of investigation (ROI) and notice of his right to request a hearing
before an Equal Employment Opportunity Commission Administrative Judge. 	In
accordance with Complainant’s request, the Agency issued a final agency decision
(FAD) pursuant to 29 C.F.R. § 1614.110(b).
The FAD concluded that Complainant failed to establish discrimination or reprisal
as 	alleged. 	In 	rendering 	its 	decision, 	the 	FAD 	noted 	extensive 	evidentiary
deficiencies in the ROI. For instance, there was no documentation regarding
interviews and scoring for the Program Manager position. The FAD also noted that
the Agency did not maintain interview records after selection. Nevertheless, the
FAD determined that the Agency established a legitimate nondiscriminatory reason
for 	its 	actions 	(termination/removal 	for 	cause), 	and 	Complainant 	offered 	no
evidence that the reason was pretext for discrimination.
However, the FAD also found the Agency liable for per se reprisal, citing the EEO
Office’s failure to process Complainant’s amendments. To resolve the per se
reprisal, the FAD drew the following adverse inference:
Had 	Complainant’s 	amendments 	been 	investigated, 	“such 	an
investigation may have shown that Complainant established a prima
facie case of reprisal and the Agency failed to articulate a legitimate
nondiscriminatory reason for its actions.”

2025000754	4
In other words, the Agency inferred that Complainant succeeded on the merits on
all 	four 	requested 	amendments 	raised 	during 	the 	investigation, 	including
nonselections. 	The FAD ordered the Agency to pay Complainant $9,000 in
nonpecuniary compensatory damages, and to provide the EEO Administrator with
2 hours of training that addresses “the EEO Process, acceptance and dismissal of
claims.” 	The 	FAD 	also 	found 	that 	Complainant 	was 	entitled 	to 	reasonable
attorney’s fees and costs. The Agency provided the Commission with documentary
evidence establishing that it fully complied with the FAD’s order.
Complainant raises numerous contentions on appeal:
Regarding the processing of his complaint, Complainant contends that he was
repeatedly 	prejudiced 	because 	the 	Agency 	delayed 	the 	investigation, 	his
blacklisting 	claim 	was 	not 	investigated, 	and 	Management 	“blocked 	the
investigation” by destroying documents. 	He asserts that the FAD’s “reminder” to
the Agency of its obligation to maintain documentation of personnel decisions was
insufficient because it failed to address the prejudicial impact on Complainant’s
case. Instead, the FAD should have applied an adverse inference that any missing
documents would have reflected unfavorably on the Agency.
Regarding the requested amendments and finding of per se reprisal, Complainant
contends that the FAD erred when it did not amend his complaint to include his
blackballing allegation and the five additional claims of discrimination. 	In the
alternative, Complainant argues that the FAD misapplied the adverse inference
intended to cure the EEO Administrator’s failure to process the amendments. 	He
reasons that because the requested amendments alleged nonselection, the FAD’s
adverse inference entitled Complainant to placement into one of the positions he
raised in his nonselection claims. 	As for compensatory damages, Complainant
contends that the FAD erred when it determined a monetary amount without first
providing him with an opportunity to submit evidence to support a larger award.
Regarding 	the 	merits 	of 	his 	complaint, 	Complainant 	contends 	that 	he 	was
wrongfully terminated, and the Agency is citing his termination as pretext for
continued discrimination and reprisal, including blacklisting. 	Complainant states
that he applied to five positions in December 2022, and was not interviewed for
any of them, despite his veteran and Schedule A status, and superior qualifications.

2025000754	5
Regarding the Program Manager position in Claim 1, Complainant maintains that
he was the most qualified candidate, having served in the position from 2017
through 	his 	termination 	in 	2021 	with 	demonstrated 	success. 	He 	received
performance ratings of “Outstanding” as well as cash awards, from 2019 through
2021, and, in 2021, he received a “Wingman Saves Award” for saving a service
member’s life in the performance of his duties. According to Complainant, the
termination 	was 	the 	first 	disciplinary 	action 	of 	his 	career, 	and 	multiple
management officials and colleagues opposed his termination. Moreover, the
selectee for his former Program Manager position was “objectively unqualified.”
As 	further 	indicia of 	discriminatory 	and 	retaliatory 	motivation, 	Complainant
provides examples where the Agency allegedly manipulated the hiring process and
violated protocol to avoid reinstating him to his former position. Complainant
recounts 	that 	his 	former 	second 	level 	supervisor, 	who 	allegedly 	believed
Complainant should be returned to his job, should have been the hiring official for
the Program Manager vacancy based on the organizational structure of the 911th
FSS/FSFR. Instead, MSG Commander, who approved Complainant’s termination,
and allegedly blacklisted him, was the hiring official. 	Complainant also contends
that the Agency was required to interview him when the original selectee declined
the Program Manager position because Complainant was the only other Schedule
A candidate. The Agency failed to do so and provided a false explanation (Claim
2) when he inquired about why he was not interviewed.
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). 	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”).
Sanctions – Failure to Maintain Records
The 	Commission, 	on 	appeal, 	may 	issue 	sanctions 	where 	an 	agency 	or 	its
employees fails without good cause shown to respond fully and in timely fashion

2025000754	6
to an investigator's requests. See 29 C.F.R. § 1614.108(c)(1); EEO MD-110, Ch. 6.
Such sanctions may include drawing an adverse inference that the requested
information would have reflected unfavorably on the party that fails to provide the
requested 	information. 	29 	C.F.R. 	§ 	1614.108(c)(3); 	James 	R. 	v. 	Dep’t 	of
Commerce, EEOC Appeal No. 2024000624 (May 30, 2025). 	The Commission's
regulations do not require a finding of willfulness or bad faith as a prerequisite to
the issuance of a sanction. Clayton v. United States Postal Serv., EEOC Appeal
No. 0720070042 (Jul. 26, 2007) (affirming AJ imposition of adverse inference
where the management official failed to retain interview notes, even though there
was no evidence that the Agency acted in bad faith.)
Here, despite the EEO Investigator’s requests, the Agency failed to provide
documentation of Complainant’s prior EEO activity, competitive selections made
during the prior two-year period, position description for the position at issue,
request 	for 	personnel 	action 	requesting 	the 	recruitment, 	merit 	promotion 	or
vacancy announcement for the position at issue, instructions given to the panel
members, evaluation criteria used by panel members and/or selecting official,
notification of personnel action SF-50, effecting the selection and documentation
of Complainant’s notification of nonselection. 	The Agency did not show good
cause for failing to provide the requested documents. 	Moreover, the MSG
Commander admitted that the interview notes and score sheets were not kept on
file after hiring, as is required under EEOC regulations.
Therefore, we will apply an adverse inference that the requested information would
have reflected unfavorably on the Agency. Specifically, we infer that Complainant
had substantially more knowledge and experience relevant to the position of
Program Manager for the 911 th than any other candidate, including the selectee.
We note that application of adverse inference does not guarantee a finding of
discrimination. Mana H. v. Dep’t of the Navy, EEOC Appeal No. 0120170670
(Apr. 27, 2018) citing Newbold-Reece v. Dep’t of Veterans Affairs, EEOC Appeal
No. 0120073324 (Nov. 17, 2009) (applying adverse inference due to failure to
preserve 	records 	from 	the 	selection 	process, 	did 	not 	result 	in 	a 	finding 	of
discrimination because the complainant did not establish that they would have been
chosen over the selectee for the position) and Clayton.

2025000754	7
Amendment Requests
Under 29 C.F.R. § 1614.106(d) a complainant may amend their complaint, at any
time prior to the conclusion of the investigation, to include issues or claims that are
like or related to those raised in their complaint. 	Upon receipt of a complainant’s
request, the agency must provide the complainant with a written acknowledgement
of the request, including the date on which the amendment was filed. See 29 C.F.R.
§ 1614.106(e); Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), at Ch. 5 § III.B (rev. Aug. 5, 2015). Then, the
agency, through 	its EEO 	Director or designee, must 	determine whether the
amendment request raises a new claim or issue, and if that claim or issue is “like or
related” to the pending complaint. 	If the agency determines that the amendment
request contains a claim that is “like or related,” the agency must amend the
pending complaint to include the “like or related” claim. 29 C.F.R. § 1614.108(f);
EEO MD-110 Ch. 5 § III.A. If the agency determines that the amendment request
contains a claim that is not “like or related,” that claim should be processed as a
separate complaint. Id.
Complainant’s requested amendments alleged discrimination and harassment on
the bases of sex (male), disability (mental and physical), and reprisal for prior
protected EEO activity when:
1. On May 3, 2023, Complainant became aware that his military ID was
flagged as “Yellow” and “Site warning,” although this occurred
multiple times when entering the 911th and the 171st bases, resulting
in one 30-minute delay, Complainant was ultimately permitted to
enter the bases each time;
2. On July 19, 2023, Complainant became aware that he was not selected
for the position of Human Resources Specialist;
3. Complainant became aware that he was referred to for the position of
Executive Staff Specialist, but not interviewed or selected;
4. In August 2023, Complainant became aware that with the Greater
Pittsburgh Airport, Pennsylvania, the Agency’s stated reason for not
offering an interview was that Complainant lacked the specialized

2025000754	8
experience required for the position, even though Complainant was
well qualified:
a. 	On August 25, 2023, Complainant became aware that he was
not selected for the position of Unit Deployment Manager, GS-
0301-9 	(Announcement 	No. 	6T-AFPC-12030332-064243-
MHS);
b. On August 27, 2023, Complainant became aware that he was
not selected for the position of Human Resources Specialist
(Recruitment & Placement), GS-0201-9 (Announcement No.
6T-AFPC-12090893-074390-FNA); and
5. On March 1, 2024, Complainant became aware that he was not
selected for the position of Prevention Specialist position 911th wing,
even though he was referred and interviewed.
Although 	they 	were raised 	prior to 	the conclusion of the investigation, the
amendment requests listed as Claims 1-4 should have been processed separately
because they 	are not 	sufficiently 	“like or related” to 	the instant 	complaint.
Specifically, claims 1-4 describe events that occurred months after Complainant’s
nonselection 	for 	the 	Program 	Manager 	position, 	and 	involved 	different
management officials. The requested amendment in Claim 5 occurred after the
investigation, so it cannot be included as part of the instant complaint. However,
the Agency does not dispute that Complainant raised Claim 5 with the EEO Office,
and the matter was not processed.
To the extent that it has not already done so, the Agency shall docket the requested
amendments, listed above as Claims 1-5, in a separate EEO complaint, and process
the complaint in accordance with 29 C.F.R. § 1614.108. 	If the Agency, due to its
initial 	failure 	to 	process 	these 	claims, 	is 	unable 	to 	develop 	an 	appropriate
investigative record, the deciding official (AJ or FAD) may consider applying an
adverse inference. See 29 C.F.R. §§ 1614.108(a)-(c).3
3 The parties may also resolve the matter through alternative dispute resolution
(ADR) at any stage of the EEO process. See 29 C.F.R. §§ 1614.102(b)(2), .108(b);
EEO MD-110 at Ch. 3 § 	III.B; Administrative Dispute Resolution Act of 1996
(ADRA) (encouraging federal agencies to adopt and promote the use of ADR).

2025000754	9
Per Se Reprisal
Comments that, on their face, discourage an employee from participating in the
EEO process violate the letter and spirit of the EEOC regulations and evidence a
per se violation of the law. See, e.g. Binseel v. Dep’t of the Army, EEOC Request
No. 0597054 (Oct. 8, 1998) (complainant told that filing an EEO suit was “wrong
way to go about getting a promotion”).
The FAD properly found the EO Administrator engaged in per se reprisal. By
falsely informing the EEO Investigator that Complainant’s requests to amend his
complaint amounted to “abuse of process,” the EEO Administrator discouraged
Complainant from participating in the EEO process.4 The FAD’s remedies of
compensatory damages, reasonable attorney’s fees, and training for the EEO
Administrator 	were 	appropriate. 	However, 	with 	respect 	to 	the 	amount 	of
compensatory damages, we agree with Complainant that additional evidence is
needed. 	We also recommend that the Agency consider taking disciplinary action
against the EEO Administrator.
The FAD also properly acknowledges that the EEO Administrator effectively
denied 	Complainant’s 	right 	to 	participate 	in 	the 	EEO 	process 	through 	the
prolonged lack of response to his amendment requests, and subsequent failure to
forward 	the 	requests 	for 	processing. 	As 	a 	remedy, 	the 	FAD 	inferred 	that
Complainant prevailed on the merits for the four requested amendments raised
during the investigation, including nonselections (i.e. default judgment). 	Given
that Complainant has already received at least $9,000 in compensatory damages
for per se reprisal, and that the claims in the requested amendments were not
processed at all, we find the adverse inference has the potential to exceed “make
whole” relief.
4 Dismissals for misuse or abuse of process under C.F.R. § 1614.107(a)(9) are rare
and require evidence demonstrating that the complainant specifically intended to
misuse the EEO process. See, e.g. Lyle P. v. Dep’t of Homeland Sec., EEOC
Appeal No. 2019005269 	(Sept. 11, 2020) (complainant 	not only 	filed 	EEO
complaints on 35 non-selections, but he also deliberately sought to relitigate claims
already litigated and closed, and to overwhelm the Agency’s EEO office as a tactic
to obtain a default judgment against the agency).

2025000754	10
See Thomas v. Dep’t of State, EEOC Appeal No. 01932717 (Jun. 10, 1994) (an
award outside the scope of make-whole relief would amount to a windfall to a
complainant 	and 	it 	is 	not 	required). 	As 	previously 	discussed, 	we 	find 	an
appropriate solution is to accept the requested amendments for processing. Upon
further development of the record, the deciding official may find that the Agency’s
actions prejudiced Complainant to such an extent that an adverse inference of other
sanction is warranted.
Compensatory Damages
Compensatory damages are awarded to compensate a complainant for losses or
suffering inflicted due to an agency’s discriminatory act or conduct. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Ch. 11 (rev. Aug. 5, 2015) citing Carey v. Piphus, 435 U.S. 247, 254
(1978). 	Compensatory damages “may be had for any proximate consequences
which can be established with requisite certainty.” EEO MD-110 at Ch. 11 § VII,
citing 22 Am Jur 2d Damages § 45 (1965). To support an amount with “requisite
certainty,” a complainant must demonstrate that (1) they were harmed because of
the Agency's discriminatory action (causal nexus); (2) the extent, nature, and
severity of the harm; and (3) the duration or expected duration of the harm. Rivera
v. Dep’t of the Navy, EEOC Appeal No. 01934157 (Jul. 22, 1994) reconsideration
denied Request No. 05940927 (Dec. 11, 1995).
Here, the Agency reasoned that the amount of $9,000 was appropriate because in
Fawn G. v. Department of Justice, EEOC Appeal No. 2022004711 (August 27,
2024), the Commission affirmed an AJ award of $9,000 in compensatory damages
for per se reprisal. 	However, in Fawn G., the award was supported by evidence
(Complainant’s testimony) identifying harm she experienced because of the per se
reprisal. 	The FAD does not identify any “proximate consequences” or harm
incurred by Complainant, nor does it discuss a causal nexus between the harm and
the per se reprisal.
Our guidance provides that the Commission may either set out the amount of
compensatory damages to be awarded by an agency, or remand the matter to the
agency for a determination of the amount of compensatory damages. EEO MD-110
at Ch. 11 § VII. In this case, the FAD did not explain how it established, with
requisite 	certainty, the amount of $9,000 in compensatory damages, and, on
appeal, Complainant disputes this amount.

2025000754	11
Therefore, we remand the matter to the Agency for a determination on whether
Complainant is entitled to more than $9,000 in compensatory damages for harm
arising from the per se reprisal.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the
three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie
case of discrimination by presenting facts that, if unexplained, reasonably give rise
to an inference of discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. 	McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. 	Texas
Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 	Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the
fact finder by a preponderance of the evidence that the Agency acted based on a
prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case, need not be
followed 	in 	all 	cases. 	Where 	the 	Agency 	has 	articulated 	a 	legitimate,
nondiscriminatory reason for the personnel action at issue, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis, the ultimate
issue of whether Complainant has shown by a preponderance of the evidence that
the Agency’s actions were motivated by discrimination. United States Postal Serv.
Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of
Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of
Health 	and 	Human 	Serv., 	EEOC 	Request 	No. 	05900467 	(June 	8, 	1990);
Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For purposes of this analysis, we assume Complainant can establish a prima facie
case for discrimination based on sex, disability, and reprisal. We also apply the
adverse inference, and assume Complainant had substantially more knowledge and
experience relevant to the position of Program Manager for the 911 th , than any
other candidate, including the selectee.

2025000754	12
Claims 1, 2, and 3, all relate to Complainant’s nonselection for the position of
Program Manager for the 911 th FSS/FSR. 	The Agency presented a legitimate
nondiscriminatory reason for its actions. Namely, Complainant was removed for
cause from the same position just over a year earlier. Having considered the
evidence of record, we find that Complainant has not established that the Agency’s
proffered reason is pretext for an underlying discriminatory or retaliatory animus.
In 	a 	non-selection 	case, 	pretext 	may 	be 	demonstrated 	by 	a 	showing 	that
complainant's qualifications are observably superior to those of the selectee. See
Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) citing
Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981). 	Complainant established,
through adverse inference, that his education and experience were observably
superior to that of the selectee. However, on its face, a prior termination from the
same position is reasonable justification to disqualify an applicant regardless of
their experience, knowledge, and prior success in the position. See Complainant v.
Dep’t of the Treas., EEOC Appeal No. 0120180306 (May 17, 2019) (complainant
was not selected for multiple positions after being placed on the best qualified list
when management officials recommended against selecting Complainant because
he was terminated twice from the same position). Therefore, Complainant cannot
establish pretext on the grounds that his qualifications are observably superior to
those of the selectee.
With respect to “blackballing” or “blacklisting,” Complainant has not offered any
evidence, aside from bare assertions, that Management acted in consort to deny
him employment opportunities. See Amie H. v. Dep’t of the Navy, EEOC Appeal
No. 	0120180695 	(Jul. 	2, 	2019). 	Considering 	the 	Agency’s 	legitimate
nondiscriminatory reason for its actions, the fact that Complainant was not hired
for other positions within the Agency is not sufficient to support a claim of
discriminatory or retaliatory blacklisting.
We 	are 	also 	unpersuaded 	by 	Complainant’s 	argument 	that 	the 	Agency’s
explanation 	was 	pretext 	because MSG Commander violated disability hiring
policy. Schedule A special hiring authority is not mandatory in any specific hiring
decision for federal agencies. See Hein v. Nat’l Archives & Records Admin.,
EEOC Appeal No. 0120123266 (Aug. 5, 2013) citing 5 C.F.R. §213.3102(u).
Moreover, the Commission’s role is to determine whether a complainant was
subjected to discrimination, not whether the agency effectively implemented its
Schedule A program.

2025000754	13
Complainant v. EPA, EEOC Appeal No. 0120081695 (Oct. 31, 2013), see, e.g.
Rumberg v. Dep’t of the Army, EEOC Appeal No. 0120091374 at 3 (Apr. 28,
2009) (the complainant failed to establish discrimination because, even if the
agency failed to properly consider Schedule A applicants, the record “does not
reflect 	that 	[the] 	agency’s 	misapplication 	of 	the 	Schedule 	A 	process 	was
undertaken with discriminatory animus.”) Regardless, Complainant’s Schedule A
status is irrelevant because Complainant’s termination rendered him unqualified
for the Project Manager position.
Complainant’s remaining appellate arguments are predicated on the assumption
that Complainant was wrongfully terminated. Regardless of whether Complainant
believes 	it 	was 	warranted, 	the 	record 	supports 	the 	Agency’s 	position 	that
Complainant was previously terminated for cause.
Accordingly, 	the 	Agency’s 	finding 	that 	Complainant 	failed 	to 	prove, 	by 	a
preponderance of the evidence, that he was subjected to discrimination or reprisal
as alleged is AFFIRMED. The Agency’s finding of per se reprisal is MODIFIED.
We 	hereby 	REMAND 	this 	matter 	to 	the 	Agency 	for 	further 	processing 	in
accordance with this Decision and the following Order.
ORDER
1. 	New Complaint of Discrimination. Within fifteen (15) calendar days
of the date this decision was issued, the Agency shall docket a new
EEO complaint comprised of the five amendment requests that the
EEO Administrator erroneously failed to forward for processing. The
Agency shall frame and process the complaint in accordance with the
section 	in 	this 	Decision 	entitled 	“Amendment 	Requests.” 	The
Agency shall include a copy of this Decision in the investigative
file for the new complaint.
a. 	In 	accordance 	with 	Equal 	Employment 	Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority
to this remanded case in order to comply with the time frames
contained in this Order. 	The Commission will issue sanctions
against 	agencies 	when 	it 	determines 	that 	agencies 	are 	not

2025000754	14
making reasonable efforts to comply with a Commission order
to investigate a complaint.
b. The Agency shall provide the EEO Counselor with a copy of
the Letter of Acceptance articulating the claims and the new
Agency docket number. If the Agency has already addressed
any of the five requested amendments in an EEO complaint, or
settlement 	agreement, 	the 	Agency 	shall 	provide 	the 	EEO
Compliance Officer with a Letter of Acceptance articulating the
claim(s) or a signed copy of the settlement agreement.
2. 	Compensatory Damages. Within sixty (60) calendar days of the date
this decision is issued, the Agency shall conduct and complete a
supplemental investigation to determine if Complainant is entitled to
compensatory damages for the per se reprisal, in addition to the
undisputed amount of $9,000. In so doing, the Agency shall:
a. 	Issue a notice to Complainant of his right to submit evidence
based our guidance in Carle v. Dep't of the Navy, EEOC
Appeal No. 01922369 (Jan. 5, 1993) and request evidence from
Complainant in support of compensatory damages.5 The Notice
shall provide Complainant with thirty (30) calendar days to
respond (with an option and instructions to request an extension
in the case of extenuating circumstances). Complainant has a
duty to cooperate with Agency’s investigation to determine
compensatory 	damages, 	including 	responding 	to 	agency
requests for documentation or completing agency forms.
5 Information on evidence to support compensatory damages: EEOC Management
Directive 	110, 	Ch. 	11 	§ 	VII 	(Aug. 	5, 	2015), 	available 	at
https://www.eeoc.gov/federal-sector/management-directive/chapter-11-remedies
(provides the types of compensatory damages available under EEOC statutes and
“Objective Evidence” of entitlement); and N. Thompson, Compensatory Damages
in the Federal Sector: An Overview, EEOC Digest Vol. XVI, No. 1 (Winter 2005)
available at https://www.eeoc.gov/federal/digest/xvi-1.cfm#article 	(explains Carle
v. Dep’t of the Navy under the subsection “Proof of Damages”).

2025000754	15
b. Issue a new final agency decision (“Compensatory Damages
FAD”) based on the findings of the supplemental investigation.
The Compensatory Damages FAD shall state the amount of
compensatory damages owed to Complainant and explain how
the 	Agency 	determined 	that 	amount. 	The 	Compensatory
Damages FAD shall include appeal rights to the Commission.
c. 	Within sixty (60) calendar days of the date the Compensatory
Damages FAD is issued, the Agency shall, to the extent that it
has not 	already 	done so, pay 	Complainant 	the amount 	of
compensatory damages it determined are owed. If there is a
dispute over the exact amount of compensatory damages owed,
the Agency shall pay the undisputed amount to Complainant. If
Complainant 	disagrees 	with 	the 	agency’s 	award, 	he 	may
challenge 	the 	Agency’s 	decision 	on 	the 	amount 	of
compensatory 	damages 	by 	filing 	an 	appeal 	of 	the
Compensatory 	Damages 	FAD 	with 	the 	Commission.
Instructions on how to appeal, including the deadline to file,
will 	be 	included 	in 	the 	appeal 	rights 	portion 	of 	the
Compensatory Damages FAD.
3. 	Consider Disciplinary Action. Within one hundred twenty (120)
calendar days from the date this decision is issued, the Agency shall
consider taking the following disciplinary action. The Commission
does not consider training to be disciplinary action.
a. 	Consider disciplining the individual identified in this decision
as 	“EEO 	Administrator” 	for 	violating 	Complainant’s 	EEO
rights by causing egregious delays forwarding the complaint for
investigation, 	and 	by 	failing 	to 	process 	the 	requested
amendments.
b. Consider disciplining the individual identified in this decision
as 	“MSG Commander” for failing to retain interview notes for
the Program Manager position and failing to furnish requested
documentation to the EEO Investigator.

2025000754	16
c. 	The Agency shall report its decision to the Compliance Officer.
If the Agency decides to 	take disciplinary 	action, it shall
identify the action taken. If the Agency decides not to take
disciplinary 	action, 	it 	shall 	set 	forth 	the 	reason(s) 	for 	its
decision not to impose discipline. If the individual(s) has left
the Agency’s employ, the Agency shall furnish documentation
of their departure dates.
4. 	Posting Notice. Within thirty (30) calendar days of the date this
decision is issued, the Agency shall post a notice in accordance with
the section listed below, entitled “Posting Order.” The Agency shall
provide the Compliance Officer with the original signed and dated
notice, reflecting the dates that the notice was posted, along with
evidence that the notice was physically posted at the facility and
electronically.
5. 	Attorney’s Fees. 	To the extent that Complainant is the prevailing
party, 	Complainant 	is 	entitled 	to 	attorney’s 	fees 	and 	costs 	in
accordance with the section listed below, entitled “Attorney’s Fees.”
The Agency is further directed to submit a report of compliance in digital format as
provided in the statement entitled "Implementation of the Commission's Decision."
The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29
C.F.R. § 1614.403(g). The report must include supporting documentation that the
corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Agency’s 911th Air Force Support Squadron
(FSS), Military Family Readiness (FSFR), at Pittsburgh Air Reserve Station,
Pennsylvania, copies of the attached notice. 	Copies of the notice, after being
signed by the Agency's duly authorized representative, shall be posted both in
hard copy and electronic format by the Agency within 30 calendar days of the
date this decision was issued, and shall remain posted for 60 consecutive days, in
conspicuous 	places, 	including 	all 	places 	where 	notices 	to 	employees 	are
customarily posted. 	The Agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.

2025000754	17
The original signed notice is to be submitted to the Compliance Officer as directed
in the paragraph entitled "Implementation of the Commission's Decision," within
10 calendar days of the expiration of the posting period. 	The report must be in
digital format and must be submitted via the Federal Sector EEO Portal (FedSEP).
See 29 C.F.R. § 1614.403(g).
ATTORNEY'S FEES (H1125)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. §
1614.501(e)(1)(iii)), they are entitled to an award of reasonable attorney's fees
incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of
attorney's fees shall be paid by the Agency. The attorney shall submit a verified
statement of fees to the Agency -- not to the Equal Employment Opportunity
Commission, Office of Federal Sector -- within thirty (30) calendar days of receipt
of this decision. The Agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. § 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1125)
The Commission may, in its discretion, reconsider this appellate decision if
Complainant or the Agency submits a written request that contains arguments or
evidence that tend to establish that:
1. 	The appellate decision involved a clearly erroneous interpretation of
material fact or law; or
2. 	The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests for reconsideration must be filed with EEOC’s Office of Federal Sector
(OFS) within thirty (30) calendar days of receipt of this decision. 	If the party
requesting reconsideration elects to file a statement or brief in support of the
request, that statement or brief must be filed together with the request for
reconsideration. 	A party shall have twenty (20) calendar days from receipt of
another party’s request for reconsideration within which to submit a brief or
statement 	in 	opposition. 	See 	29 	C.F.R. 	§ 	1614.405; 	Equal 	Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at
Chap. 9 § VII.B (Aug. 5, 2015).

2025000754	18
Complainant should submit their request for reconsideration, and any statement or
brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx. 	Alternatively, Complainant can
submit their request and arguments to the Director, Office of Federal Sector, Equal
Employment Opportunity Commission, via regular mail addressed to P.O. Box
77960, Washington, DC 20013, or by certified mail addressed to 131 M Street,
NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s
request to reconsider shall be deemed timely filed if OFS receives it by mail within
five days of the expiration of the applicable filing period. 	See 29 C.F.R. §
1614.604.
An agency’s request for reconsideration must be submitted in digital format via the
EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. § 1614.403(g).
Either party’s request and/or statement or brief in opposition must also include
proof of service on the other party, unless Complainant files their request via the
EEOC Public Portal, in which case no proof of service is required.
Failure to file within the 30-day time period will result in dismissal of the party’s
request 	for 	reconsideration 	as 	untimely, 	unless 	extenuating 	circumstances
prevented the timely filing of the request. 	Any supporting documentation must
be submitted together with the request for reconsideration. 	The Commission
will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124)
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 their 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.

2025000754	19
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:
T. Gimbrere 	_________ 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 22, 2026
Date