EEOC Appeal 2025001499, 2025002667

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Clelia W,1
Complainant,
v.
Christopher Wright,
Secretary,
Department of Energy,
Agency.
Appeal Nos. 2025001499; 2025002667
Agency No. 20-0069-HQ-ED
Hearing No. 570-2021-01449X
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission
(EEOC or Commission) regarding her allegations that the Agency failed to comply
with the terms of the Agency’s November 12, 2024 final order. 	See 29 C.F.R.
§ 1614.504.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a
Program Manager at the Agency’s Office of Economic Impact and Diversity in
Washington D.C. 	On September 1, 2020, Complainant filed a formal EEO
complaint alleging discrimination and harassment on the bases of race, sex, and
reprisal.
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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At the conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation and notice of her right to request a hearing
before an EEOC Administrative Judge (AJ). Complainant requested a hearing. On
July 6, 2023, the AJ granted the Agency’s Motion for Summary Judgment, in part,
and denied it in part. 	Thereafter, the AJ held a hearing on August 4, 7, and 9,
2023.
On September 30, 2024, the AJ issued a decision finding that Complainant
established that the Agency discriminated against her in reprisal for prior protected
EEO activity when the Agency did not select Complainant for the position of
Deputy Director, Office of Minority Programs. 	The AJ also found that Agency
engaged in per se reprisal and that the Agency subjected Complainant to retaliatory
harassment. 	To remedy the violation, the AJ ordered, in pertinent part, that the
Agency take the following actions within 60 days of the date the order became
final:
The Agency is ORDERED to retroactively promote Complainant to
the position of Deputy Director, Office of Minority Programs within
the Office of Economic Impact and Diversity (ED), effective February
3, 2020, at the EJ-level salary that she would have received absent the
discrimination, or a substantially equivalent position. 	See 29 C.F.R.
§ 1614.501(a)(3). 	The substantially equivalent position shall contain
comparable duties and titles provided to [Comparator], such that
Complainant has supervisory authority and reports to the Director.
The Agency shall determine the appropriate amount of back pay plus
interest and other benefits (including lost TSP benefits, retirement
contributions 	and 	the 	loss 	of 	bonuses, 	increases, 	etc.) 	due 	to
Complainant 	pursuant 	to 	29 	C.F.R. 	§ 1614.501 	and 	5 	C.F.R.
§ 550.805, including any contributions by the Agency during the
relevant back pay period, together with interest or earnings would
have accrued and the method for calculating interest and earnings.
On November 12, 2024, the Agency issued a final order wherein it accepted and
agreed to fully implement the AJ’s Decision and relief ordered.

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On November 13, 2024, the Agency offered Complainant the Chief, Energy Justice
Policy Division position. 	Within an email discussion related to the job offer, the
Agency explained that the Deputy Director, Office of Minority Programs position
had materially changed from its previous iteration in 2020. The Agency noted that
the present Deputy Director position was no longer an EJ-level position, but an
Senior 	Executive 	Service 	(SES) 	position 	because 	it 	supervised 	an 	EJ-level
(excepted service) employee and a supervisory GS-15 level employee as well as
multiple other non-supervisory employees. 	On November 29, 2024, Complainant
declined the offer.
First Allegation of Non-Compliance
By letter to the Agency dated December 12, 2024, Complainant alleged that the
Agency failed to comply with its final order, and Complainant requested that the
Agency 	specifically 	implement 	its 	terms 	by 	offering 	Complainant 	a Deputy
Director position within an office that involves substantially similar policy areas as
the Deputy Director, Office of Minority Programs position. Complainant reported
a belief that the current Deputy Director, Office of Minority Programs position
would satisfy the Agency’s obligation.
On January 16, 2025, the Agency acknowledged receipt of Complainant’s letter
alleging noncompliance. 	The Agency declined to make a determination on the
allegations of noncompliance because it determined there was an ongoing conflict
of interest for the Agency’s Office of Civil Rights and Equal Employment
Opportunity.
Thereafter, Complainant filed an appeal (EEOC Appeal No. 2025001499) on
January 29, 2025.
Complainant 	submitted 	an 	appellate 	brief 	on 	February 	28, 	2025. 	First,
Complainant contends that the offered position does not have the same level of
responsibilities as the Deputy Director, Office of Minority Programs. Complainant
relies on the title of the offered position being “Chief” rather than Deputy Director
and that the AJ’s order indicating that the offered position must report to the
Director. 	Second, Complainant contends that the offered position does not have
the same or similar duties as the Deputy Director, Office of Minority Programs.

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Complainant states that the offered position focuses on environmental justice
policy analysis (i.e., how energy policy affects underrepresented communities)
rather than the impact of Agency regulations and policies on minority educational
institutions and programs. 	Third, Complainant contends that the offered position
“was located in an office that no longer exists.” 	Complainant states that the
offered position was designed to implement two executive orders signed by
President Biden, which were likely to be rescinded based on the results of the
presidential election. Complainant characterizes her placement in the position as a
continuation of the Agency’s retaliation against her because it appeared designed
to ensure that she would be removed from the Agency.
The Agency filed its appellate brief on March 31, 2025. 	First, the Agency
contends that the offered position is substantially similar because the position
responsibilities include supervising a similar number of subordinates with similar
GS levels as the position for which Complainant was not selected. 	In particular,
the Agency states that the Deputy Director, Office of Minority Programs, as
constituted in 2020, supervised three GS-15 level employees, two GS-14 level
employees, and one GS-13 administrative specialist, while the offered position
supervises 	three 	GS-15 	level 	employees 	and 	three 	GS-14 	level 	employees.
Second, the Agency contends that the duties, responsibilities, and location are
similar because both positions focus on achieving policy objectives, are within the
same Office of Energy Justice and Equity and have the same duty location. Third,
in response to Complainant’s third contention, the Agency states that the offered
position existed when the Agency offered the position and when Complainant
declined the offer. 	The Agency also states that as of the foregoing dates the
Agency was not informed of any Executive Order that would have eliminated the
offered 	position. 	The 	Agency 	notes 	that 	the 	underlying 	change 	on 	which
Complainant bases her third contention did not occur until January 20, 2025, under
the new Administration, by which time the Agency had already substantially
complied with its order.
Complainant filed a reply brief on April 2, 2025, which contends that the Agency’s
appellate brief was untimely pursuant to 29 C.F.R. § 1614.504(b).
Second Allegation of Non-Compliance
On January 29, 2025, Complainant sent a notice of non-compliance regarding
damages.

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The record shows that the parties engaged in back and forth communications
whereby the only outstanding issue in dispute relating to damages was whether
Complainant had received an appropriate amount related to lost bonus awards.
The Agency’s communications indicated that the Agency had not issued bonus
awards to similarly situated employees, thus Complainant was not owed any bonus
payments.
Thereafter, 	Complainant 	filed 	a 	second 	appeal 	(EEOC 	Appeal 	Number
2025002667) on May 1, 2025.
In her appellate brief, Complainant contends that the Agency failed to provide
Complainant with payment for the lost bonuses. 	Complainant states that the
Commission has held that calculation of bonuses should be based upon the average
amount received by similarly situated employees. 	Based on such standard,
Complainant contends that the Agency should be ordered to provide a list of
bonuses awarded to similarly situated employees during the relevant period.
Complainant 	requests 	that 	once 	the 	Agency 	has 	satisfied 	the 	foregoing,
Complainant should then have the opportunity to present calculations to the
Agency related to her increased tax liability.
In response, the Agency admitted that its previous conclusion that the similarly
situated employee (Comparator) did not receive any bonus was in error. 	The
Agency notes that Comparator, who was selected for the Deputy Director, Office
of Minority Programs instead of Complainant, did receive bonuses during the
relevant 	period, 	however, 	the 	Agency 	provided 	documentation 	showing 	that
Complainant earned greater bonuses for every year during the relevant period with
the sole exception of 2024. 	The record shows that Comparator earned a greater
award in 2024 where the difference between Comparator and Complainant’s bonus
awards equaled $4,430. 	Agency states that as of the filing of its brief, it has
initiated the process to pay Complainant $4,430. 	Agency states that Complainant
is now in possession of all the necessary information to present the Agency with
calculations related to her increased tax liability.
Complainant filed a reply brief which contends that the Agency’s appellate brief
was untimely pursuant to 29 C.F.R. § 1614.504(b). 	Complainant also repeats its
original contention that Agency failed to pay Complainant bonuses commensurate
with an average of similarly situated employees and that the Agency must provide
a list of such employees.

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STANDARD OF REVIEW
As this is an appeal from decisions2 issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decisions are 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, 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
Timeliness of Briefs
EEOC Regulation 29 C.F.R. § 1614.504(b) states, in part, “the agency may submit
a response to the Commission within 30 days of receiving notice of the appeal.”
EEOC Regulation 29 C.F.R. § 1614.504(c) states, in part, “prior to rendering its
determination, 	the 	Commission 	may 	request 	that 	parties 	submit 	whatever
additional information or documentation it deems necessary.” 	Regardless of the
timeliness of the Agency’s briefs, we find the information within the briefs,
including the Agency’s contentions with supporting exhibits, to be necessary for
the Commission to reach its determination. Accordingly, we consider the contents
of the Agency’s appellate briefs.
Offered Retroactive Promotion
We find the Agency substantially complied with the ordered relief by offering
Complainant retroactive promotion to a substantially similar position to the Deputy
Director, Office of Minority Programs position.
2 Although the Agency failed to issue a determination on Complainant’s first
noncompliance 	letter, 	we 	construe 	the 	Agency’s 	briefs 	in 	opposition 	to
Complainant’s appeals as the Agency’s final decisions finding that it has complied
with the Agency’s November 12, 2024 decision.

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We do not agree with Complainant’s first contention, which is focused on the title
of the offered position, rather than a nuanced evaluation of whether the totality of
the factors demonstrate that the offered position is a substantially equivalent
position. The Agency has established that the Deputy Director, Office of Minority
Programs position is no longer an appropriate position for the ordered relief
because it is currently an SES-level position whereas the AJ ordered Complainant
to be placed in an EJ-level position. 	For the same reasons, the Agency has
demonstrated that it cannot comply with the totality of the AJ’s order because the
relevant position that reports to the Director is not an EJ-level position.
At this point, the evaluation must determine whether the remaining factors support
that the Chief, Energy Justice Policy Division position is a substantially equivalent
position. 	We find that the Agency has demonstrated that the Chief position is
substantially equivalent to the previous iteration of the Deputy Director position.
The Agency has demonstrated that the Chief position supervises a similar number
of subordinates with similar GS levels and responsibilities. 	Furthermore, we do
not accept Complainant’s second contention that the offered position does not have
same or similar duties. 	In effect, Complainant is requesting that we find her role
must be within minority education. 	We find, however, that the offered position
that 	evaluates 	how 	energy 	policy 	affects 	underrepresented 	communities 	is
substantially 	similar 	to 	a 	position 	that 	provides 	technical 	assistance 	to
underrepresented communities in showing how to do business with the Agency.
The Agency also made a binding statement that the Chief position is at the EJ-level
and the remaining factors such as working conditions are not disputed as being
substantially inequivalent.
We find Complainant failed to present evidence that could establish her third
contention. 	As the Agency highlighted, the Chief position was in existence both
when the Agency offered it and when Complainant declined the offer 16 days later.
Complainant failed to present evidence that establishes that the Agency knew the
position was going to be eliminated. 	Rather, Complainant relies on speculation.
The burden is on Complainant to establish that the Agency knew the position was
going to be eliminated and that its offer of the position was a bad faith offer not
intended to provide the ordered relief for Complainant to establish the substance of
her third contention. Complainant has failed to satisfy that burden.

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Bonus Award
We find the Agency substantially complied with the ordered relief related to bonus
awards. The sole issue in dispute on appeal regarding the bonus award is whether
Comparator’s bonus award data is sufficient to establish that the Agency is
complying. 	We find that Comparator’s bonus data is sufficient. Complainant was
discriminatorily non-selected for the Deputy Director, Office of Minority Programs
position while Comparator was selected and served in that position during the
relevant period. 	Furthermore, no other individual performed that job function
within 	the 	relevant 	period 	making 	Comparator 	the 	sole 	similarly 	situated
employee. 	As such, the difference between Comparator’s bonus award and
Complainant’s bonus award is the appropriate amount to award to Complainant to
make her whole. 	The record shows that the difference between bonus awards
equals $4,430 and that the Agency was in the process of disbursing this amount to
Complainant. Accordingly, the Agency has substantially complied with the bonus
award 	component 	of 	the 	ordered 	relief. 	We 	agree 	with 	the 	Agency 	that
Complainant is now in possession of all necessary information to present the
Agency with calculations related to her increased tax liability.
CONCLUSION
We AFFIRM the Agency’s decisions finding that it has complied with the
Agency’s November 12, 2024 decision and its ordered relief.
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.

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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. 	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.

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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:
T. Gimbrere 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 21, 2026
Date