EEOC Appeal 2025002814

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Mack B.,1
Complainant,
v.
Adam R. Telle,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 2025002814
Hearing No. 430-2018-00142X
Agency No. ARHQMSDDC17APR01216
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission
(EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), pertaining to his equal
employment 	opportunity 	(EEO) 	complaint 	of 	employment 	discrimination 	in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for
employment with the Agency’s Military Surface Deployment and Distribution
Command, located in Southport, North Carolina. On June 23, 2017, Complainant
filed an EEO complaint alleging that the Agency discriminated against him based
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 age (over 40) when, on April 3, 2017, he received notification he was not selected
for a Supervisory Police Officer, GS-0083-8 position. Complainant left the Agency
shortly after he was not selected for the position. He then took a position with the
Department of Veterans Affairs (VA) and retired from that 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 EEOC Administrative Judge. Complainant timely requested a hearing but
subsequently withdrew his request. Consequently, on November 27, 2023, the
Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant’s non-selection was presumably influenced by
prohibited discriminatory bias, because the resume ranking panel members failed to
provide legitimate, nondiscriminatory explanations for their ranking decisions and
the Agency failed to maintain records related to Complainant’s non-selection.
Thus, the FAD concluded that the Agency was unable to overcome an adverse
inference that age discrimination was a factor in the hiring decision. The record did
not support a finding, however, that age discrimination was the “but-for” cause of
the non-selection at issue. The FAD ordered the Agency to offer Complainant the
position of Supervisory Police Officer, GS-0083-08, or a substantially equivalent
position, with back pay and other benefits retroactive to April 2, 2017. Complainant
declined the offer of reinstatement.
Complainant 	files 	this 	appeal 	seeking 	enforcement 	of 	the 	FAD. 	While
Complainant’s appeal lacks details, the record indicates that Complainant has not
received his backpay award as of the date he filed his appeal.
EEOC Jurisdiction
The Commission’s regulations provide that a final action that has not been the
subject of an appeal or civil action shall be binding on the Agency. 29 C.F.R.
§ 1614.504(a). If Complainant believes that the Agency has failed to comply with
the terms of a decision, he shall notify the EEO Director, in writing, of the alleged
noncompliance within 30 days of when Complainant knew or should have known of
the alleged noncompliance. 29 C.F.R. § 1614.504(b). The agency shall resolve the
matter and respond to the complainant, in writing. Id. If the agency has not responded
to the complainant, in writing, or if the complainant is not satisfied with the agency's
attempt to resolve the matter, the complainant may appeal to the Commission for a

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determination as to whether the agency has complied with the terms of the settlement
agreement or decision. Id. The complainant may file such an appeal 35 days after he
or she has served the agency with the allegations of noncompliance but must file an
appeal within 30 days of his or her receipt of an agency's determination. Id. If the
Commission determines that the Agency is not in compliance with its decision, and
the noncompliance is not attributable to acts or conduct of Complainant, it may order
such compliance with the decision. 29 C.F.R. § 1614.504(c).
Here, it is not clear that Complainant filed a formal notice of noncompliance with
the Agency or that the Agency issued a determination on the matter, but since the
Agency has extensively briefed this matter, in the interest of judicial economy, we
will move forward with evaluating the instant appeal. See Stanton S. v. Dep’t. of
Health and Hum. Ser’v., EEOC Apepal No. 2021001706 (Aug. 30, 2022).
Efforts to Comply with Backpay Award
The Agency asserts that it has diligently worked to determine the amount of backpay
and other benefits due to Complainant and has done so in coordination with the
Defense Finance and Accounting Service (DFAS). Specifically, following the
issuance of the FAD, the Agency immediately sought clarification from DFAS on
how to process Complainant’s backpay.
The Agency was prepared to pay Complainant a lump sum payment, but DFAS
advised that Complainant would need to agree to a lump sum payment in lieu of
backpay because the FAD ordered backpay. The Agency discussed this option with
Complainant in or around April 2024, but Complainant declined to agree to a lump
sum payment in lieu of backpay. Based on Complainant’s decision, the Agency
began creating the documents necessary to facilitate the calculation of backpay and
benefits as directed by DFAS.
The FAD ordered the Agency to pay Complainant backpay from April 2, 2017, until
December 14, 2023 (i.e., the date Complainant declined reinstatement). DFAS
advised that the Agency should submit a recreated work history for Complainant to
cover the timeframe and that DFAS would process the offsets needed due to his VA
salary and the retirement annuity he collected during that time, in coordination with
the VA and the Office of Personnel Management. The Agency created all of the

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work history documents and submitted them to the Civilian Human Resources
Agency (CHRA)2 on or about August 12, 2024.
From on or about August 12, 2024, until the present, the Agency coordinated with
CHRA and DFAS on numerous occasions to determine what additional information
may be needed to effectuate the backpay payment and benefits to Complainant as
ordered in the FAD. On April 17, 2025, the Agency was notified that the DFAS
Civilian Pay Settlement Team was unable to determine the way forward for
effectuating the payment and the issue was under review by the DFAS Office of
General Counsel. As of June 10, 2025, there was still no response.
We find that the Agency has sought to pay Complainant the backpay and benefits as
awarded in the FAD, but DFAS is the only entity that is able to process the payment
and the necessary offsets that are outside of the Agency’s control. The Agency
asserts that it has and will continue to coordinate diligently with DFAS to effectuate
the ordered backpay and benefits to Complainant.
As the record demonstrates that the Agency has taken affirmative steps to comply,
we find that Complainant has not established his allegations of noncompliance. The
Agency’s final decision remains in place, and the Agency remains obligated to
ensure Complainant receives all backpay and other benefits that are due to him.
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.
2 CHRA is responsible for managing, developing, and supporting the Agency’s
civilian workforce and provides a full range of human resources services.

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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. 	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).

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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. 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
___________________________ 	Gul Chaudhry’s signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 28, 2026
Date