EEOC Appeal 2025004447

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Lyman D.,1
Complainant,
v.
Sean Duffy,
Secretary,
Department of Transportation
(Office of Inspector General),
Agency.
Appeal No. 2025004447
Agency No. 2025-00097-OIG-06
DECISION
On September 17, 2025, Complainant filed an appeal with the Equal Employment
Opportunity 	Commission 	(EEOC 	or 	Commission), 	pursuant 	to 	29 	C.F.R. 	§
1614.403(a), from the Agency’s August 19, 2025, final decision 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a
Criminal 	Investigator/Special 	Agent, 	GS-1811-12 	at 	the 	Agency’s 	Office 	of
Inspector General, Cerritos Field Office in Oakland, California.
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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On January 7, 2025, Complainant filed an EEO complaint alleging that the Agency
discriminated 	against 	him 	on 	the 	basis 	of 	race 	(Asian) 	when, 	on 	or 	about
September 27, 2024, management issued him a formal declination of a promotion
to a GS-13 position.
At the conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation and notice of his right to request a hearing
before an Equal Employment Opportunity Commission Administrative Judge (AJ).
On August 19, 2025, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Commission should give no weight to the
affidavits in the record because they do not comply with 29 C.F.R. 1614.108(c)(2)
which 	requires 	that 	“Statements 	of 	witnesses 	shall 	be 	made 	under 	oath 	or
affirmation or, alternatively, by written statements under penalty of perjury.” 	He
also makes numerous arguments in support of his claim that his race motivated the
September 2024 denial of his career-ladder promotion to the GS-13 grade level. He
argues, 	among 	other 	things, 	that 	the 	Agency 	failed 	to 	meet 	its 	burden 	of
articulating a legitimate non-discriminatory reason for failing to promote him,
asserting that it failed to identify who made the decision, did not support its
explanation 	with 	admissible 	evidence, 	and 	attempted 	to 	rely 	on 	promotion
guidelines that were not yet adopted when the relevant decision was made. 	He
further asserts that all of the managers in the Western Regional offices at the
relevant time were white and that the Agency did not deny this assertion. These
arguments, as well as others made on appeal, will be addressed below, where
relevant.
The Agency did not file a brief in response to Complainant’s 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).

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See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, 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
As an initial matter, we find no reason to set aside the affidavits provided in the
Report of Investigation, each of which is signed by the relevant witness, as well as
the Investigator, and include a statement that they are “true, complete, and correct
to the best of [the witness’s] knowledge and belief.”
Turning to the merits of Complainant’s complaint, to prevail in a disparate
treatment claim, a complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 	(1973). 	A 	complainant 	must 	initially 	establish 	a 	prima 	facie 	case 	by
demonstrating that he/she 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, 441 U.S. at 802
n.13. 	The 	burden 	then 	shifts 	to 	the 	agency 	to 	articulate 	a 	legitimate, 	non-
discriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a
preponderance of the evidence, that the agency’s explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
(2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Here, assuming Complainant established a prima facie case of race discrimination,
the Agency articulated a legitimate non-discriminatory explanation for declining to
provide him with a career-ladder promotion to the GS-13 level on September 27,
2024; namely, that his managers felt he needed more time-in-grade (GS-12) to
develop his skills. Several management officials explained why they felt this to be
the case.

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Complainant’s second-line supervisor at the relevant time (SAC1) asserted that
when the Assistant Agent in Charge who served as Complainant’s first-line
supervisor (ASAC1) left the Agency in August 2024, a different individual became
the Acting Special Agent in Charge (ASAC2) and served as Complainant’s first-
line 	supervisor. 	SAC1 	explained 	that 	because 	ASAC1 	had 	not 	submitted 	a
recommendation for promotion memorandum concerning Complainant’s request to
be promoted to the GS-13 step before he left his position, SAC1 sought ASAC2’s
input and that ASAC2 informed him that after a review of Complainant’s case files
and other observations, she did not feel he was ready for the promotion. SAC1 also
noted that he had an interaction with Complainant during the relevant period which
highlighted Complainant’s immaturity, i.e., Complainant asked him in a “very
casual manner not expected when interacting with senior managers” whether
SAC1 was “going to do everything to get me my 13.” Moreover, the record
includes an email from SAC1 to Complainant explaining the decision not to
promote him on September 27, 2024, which references a prior conversation SAC1
had with Complainant in which the two went over Complainant’s cases and SAC1
explained that Complainant needed some cases with complexity to them and that
most of his existing docket included cases and complaints that were not likely to
meet 	“our 	high-impact 	results 	metrics.” 	This 	email 	highlighted 	positives
Complainant had demonstrated (such as attention to detail and helping other
agents’ work) but also referenced the above-described interaction which SAC1 felt
to be inappropriate and included an apology if ASAC1 had given Complainant the
wrong impression about how the promotion to the GS-13 level would occur. It
further indicated that SAC1 and ASAC2 would provide the avenues to give
Complainant a chance to accomplish the necessary goals for achieving the GS-13
promotion.
ASAC2 asserted that when Complainant told her he expected to be promoted to a
GS-13 position and that he believed ASAC1 had prepared a recommendation
memo for him, she first confirmed that ASAC1 had not prepared a memo before he
left 	and 	then 	conducted 	her 	own 	evaluation 	of 	Complainant’s 	abilities 	and
performance. She determined that he was not yet ready for the promotion and
provided him with a detailed email with advice and expectations about how to
achieve 	his 	goal. 	This 	email 	indicated, 	for 	example, 	that 	“with 	the 	right
adjustments and focus on certain areas” he would be able to reach his goals and
described the “level of independence, as well as consistent demonstration of
advanced knowledge and skills” expected of a GS-13 agent.

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It further explained that the advice previously given by ASAC1 as to how to obtain
the requisite level of performance provided examples (such as focusing on fraud-
centric cases), but that the overall expectation was “a body of exceptional and
advanced level work that shows leadership and investigative skills to take on big
high priority cases.” It ended by suggesting Complainant focus on working
investigations independently and working on more complex fraud cases.
Another 	Assistant 	Special 	Agent 	in 	Charge, 	who 	occasionally 	served 	as
Complainant’s first-line supervisor during the relevant period (ASAC3), asserted
that he had seen a lot of Complainant’s work product and agreed that he was not
performing at an independent level. He further stated that he met with SAC1 and
ASAC2 to discuss Complainant’s readiness for promotion and that they concluded
he was not ready yet.
In providing this explanation, the Agency has met its burden of articulating a
legitimate 	non-discriminatory 	reason 	for 	its 	decision. 	Although 	Complainant
asserts on appeal that the Agency failed to do so because it did not identify the
person who denied his promotion, did not support its explanation with “admissible
evidence,” and relied on promotion guidelines that were not applicable at the
relevant time, these assertions are not persuasive. Although the burden to articulate
a legitimate non-discriminatory reason is not an onerous, the Supreme Court has
indicated that the explanation must be “legally sufficient” to justify a judgment for
the Agency. 	Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255
(1981). The Commission has interpreted the term “legally sufficient” to mean that
the reason set forth is of sufficient clarity as to allow the employee a full and fair
opportunity to demonstrate pretext. See Parker v. U.S. Postal Serv., EEOC Request
No. 05900110 (Apr. 30, 1990).
As outlined above, the ROI includes affidavits from several people who, together,
determined that Complainant was not ready for promotion to the GS-13 position.
Although 	Complainant is correct 	that 	a statement was also 	provided by 	an
individual who had retired prior to the determination (former Special Agent in
Charge/FSAC), this statement made clear that FSAC had been told when she was
Complainant’s second-line supervisor that he sought a promotion to the GS-13
level and provided her explanation for why she felt he was not ready at that time.

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Even assuming that her input was considered when Complainant’s promotion was
denied after she retired, this does not suggest that the Agency did not articulate a
legitimate non-discriminatory reason for its decision or that it failed to identify the
appropriate decision-makers.
Similarly, although Complainant asserts that the Agency failed to support its
explanation with admissible evidence, a legitimate non-discriminatory reason is
legally sufficient if it sets forth an explanation for the decision in question with
sufficient clarity to allow the employee a full and fair opportunity to demonstrate
pretext. Here, the explanations provided by SAC1, ASAC2, and ASAC3 meet this
standard.
Complainant is correct that one of the management officials who provided a
statement was the individual who became his first-level supervisor (ASAC4) in
October 2024, after the September 27, 2024, decision not to promote him. Her
statement referenced guidelines for promotion adopted in January 2025, but it also
focused on events that took place after the events at issue in this complaint, i.e.,
Complainant’s subsequent request to ASAC4 that he be promoted. 	The fact that
the ROI included this information does not render the explanation provided by the
Agency 	for 	its 	decision 	not 	to 	promote 	Complainant 	in 	September 	2024
insufficient or questionable.
Given 	that 	the 	Agency 	therefore 	articulated 	a 	legitimate 	non-discriminatory
explanation for the decision in question, Complainant has the burden to establish
by a preponderance of the evidence that this explanation is a pretext for race
discrimination.
In attempting to meet this burden, Complainant offered the arguments described
above 	concerning 	the 	flaws 	in 	the 	Agency’s 	articulated 	legitimate 	non-
discriminatory reason. These arguments are unpersuasive, for the reasons provided
above. He further pointed out that although SAC1 asserted that ASAC1 told him
that he believed Complainant was not ready for promotion, the statement provided
by ASAC1 establishes otherwise. We agree with Complainant that ASAC1, before
he left his position as Complainant’s supervisor, had determined that he believed
Complainant was ready for a promotion and stated as such in his affidavit. SAC1’s
assertion 	that 	ASAC1 	told 	him 	otherwise 	during 	a 	phone 	call 	is 	therefore
questionable.

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But this does not establish that the detailed explanation provided by SAC1,
ASAC2, and ASAC3 for why they believed Complainant was not ready for
promotion is a pretext for race discrimination. 	In explaining to Complainant, the
decision not to promote him in September 2024, SAC1 himself acknowledged that
this determination and the reasons for it were perhaps contrary to information
provided to Complainant by ASAC1. Nor is there any evidence to suggest that the
decision not to promote Complainant was based on SAC1’s mistaken belief that
ASAC1 did not think Complainant was ready for promotion.
Complainant further asserts that because there is no official requirement that a
memo recommending promotion be provided by an ASAC, the Agency’s reliance
on the lack of such a memo establishes pretext. But the detailed explanation
provided by the management officials who determined that Complainant was not
ready for promotion does not focus on the lack of a recommendation memo.
Rather, SAC1 and ASAC2 pointed out that because ASAC1 did not write such a
memo 	before 	he 	left, 	ASAC2 	needed 	to 	do 	an 	independent 	evaluation 	of
Complainant’s work before determining whether he was ready for promotion.
Complainant’s reliance on the fact that there was either no official policy on how
promotions were to be granted or that the Agency erroneously allowed managers to
relay on a verbal policy likewise does not establish that the decision not to promote
him was based on his race. Several management officials testified that the career-
ladder promotion from GS-12 to GS-13 was not automatic and that it was based on
the discretion of the relevant ASAC. There is no evidence to suggest that different
procedures or policies were applied to other Special Agents seeking a career-ladder
promotion from the GS-12 to the GS-13 level.
Complainant makes much of the fact that at the relevant time, several management
officials who were not white had left their positions and were replaced by white
individuals. But he offered no evidence, other than his mere assertion, that any of
these personnel changes were motivated by a discriminatory animus. Moreover,
ASAC1, one of the African-American managers on whose decision to leave his
position Complainant relied in making this observation, himself testified that he
left for personal reasons and that “while current management may lack racial
diversity, hiring decisions are based on qualifications and performance, not race.”
Complainant failed to provide any evidence that the racial make-up of the office
had any impact on the decision not to promote him.

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As the Agency noted in its final decision, Complainant bears the ultimate burden to
establish by a preponderance of the evidence that the decision not to promote him
was motivated by his race. After a de novo review of the record, we find that he
failed to meet this burden.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we therefore AFFIRM the Agency’s final
decision finding that Complainant failed to establish by a preponderance of the
evidence that he was discriminated against as alleged.
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).
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.

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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.
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.

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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 __________ Chaudhry’s signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 23, 2026
Date