EEOC Appeal 2025000426

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Marina A.,1
Complainant,
v.
Markwayne Mullin,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 2025000426
Hearing No. 570-2023-01262X
Agency No. HS-CIS-00617-2023
DECISION
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
September 30, 2024 final order concerning her equal employment opportunity
(EEO) complaint of 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.
At the time of events, giving rise to this complaint, Complainant worked as a
Management Program Analyst with the Agency’s Office of Chief Financial Officer,
Financial Management Division in Camp Springs, Maryland.
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 February 28, 2023, Complainant filed an EEO complaint alleging that the
Agency discriminated against her and subjected her to a hostile work environment
on 	the 	bases 	of 	race 	(African 	American), 	sex 	(female/sexual
orientation(unspecified)), disability (mental), parental status (single mother)2 and
reprisal (prior protected EEO activity) when:3
1. From October 2021 through December 2022, she was subjected to sexual
harassment and retaliatory harassment, creating a hostile and offensive work
environment. Some incidents included the following:
a. 	In 	October 	2021, 	her 	supervisor 	informed 	her 	that 	management
withheld a promotion to GS-13 because she settled a prior EEO
complaint,
b. From November 2021 through April 	2022, her supervisor made
inappropriate comments such as “he was trying to break you out of your
shell, figure you out, he saw and understood you, and that he enjoyed
unpacking the many layers of you; forcing you to socialize in ways that
were not required to perform your duties,”
c. 	In April 2022, her supervisor requested to meet in person at a Party City
parking lot, which she felt forced to do. He told her that he wanted to
check on how she was doing and pressed her until she began to cry and
then embraced her,
d. In May 2022, her supervisor contacted her more frequently, asking
questions about her personal life and telling her to send him photos of
her trip to Mexico. In May 2022, her supervisor told her that her
promotion was on hold, and to look for other opportunities considering
management did not value her,
2 The EEOC does not have jurisdiction over claims of discrimination based on
parental status; thus, that basis of discrimination will not be discussed herein. See
Angeles C. v Dep’t of Justice, EEOC Appeal No. 2023001525 (Jan. 24, 2024); Ward
B. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019004740 (Feb. 20, 2020).
3 We have revised the claims below for clarity.

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e. 	In the summer of 2022, her supervisor asked her to meet him at
Starbucks multiple times, once meeting in his car, where he played
music and asked what she was thinking, about her mental health and
about online dating,
f. 	In the summer of 2022, her supervisor reported to work on her in-person
days, requested she report for meetings where the two of them were the
only employees in-person, asked her to lunch, pressured her to play
childhood games to loosen up and pressured her to use profanity where
she felt compelled to comply,
g. In the summer of 2022, her supervisor required her to be on camera in
meetings, on one occasion insisting, even after she said she was not in
the appropriate condition for camera. He then said about her hair “oh it
is not that bad,”
h. On August 1, 2022, her supervisor came to her home, wherein he asked
for a tour, hovered over her shoulder, turned on her TV to Black Bird
to discuss a scene he asked her about, sat directly next to her on the
couch, told 	her cheerleaders 	were women 	dancing 	for men 	and
compared them to strippers, told her to ask him personal questions,
asked about her tattoos and said she must love hard, said he loved her
eyebrows because they made her look like a super villain, asked if she
was ticklish and tickled her belly, said “If I could be here all the time I
would”, grabbed her hand, pressured her to go on a walk where he sat
with her on a bench making physical contact with his leg and shoulder,
and hugged her when he left,
i. 	The week after August 1, 2022, her supervisor started micromanaging
her sending daily emails about work deliverables and items overdue,
scolding her about not immediately returning his calls and texts during
and outside work hours,
j. 	In August 2022, her supervisor insisted she send him photos of a photo
shoot she had done for her brother’s clothing line,

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k. In the fall of 2022, her supervisor began to point out shortcomings in
performance that he had never previously brought to her attention, and
her work expectations were contingent on communicating with him in
the manner he preferred. When she confronted him about this, he
thought her responses were “cute” and “funny,” and he said he enjoyed
these battles,
l. 	On September 16, 2022, her supervisor requested she go to lunch with
him where he said she was like a squirrel and asked her what kind of
animal she thought he was like. Later that night around 8:30 p.m. he
texted using What’s App trying to continue this animal conversation,
m. In October 2022, her supervisor forced her to change her Alternative
Work Schedule day,
n. In October 2022, her supervisor said upper management did not
promote her because she did not respond to their welcome emails,
o. In November 2022, her supervisor sent her an email on a Sunday with
items due on Monday knowing that she does not work on Monday. The
email contained items new to Complainant and her supervisor failed to
provide direction,
p. On November 15, 2022, her supervisor sent her an email reprimanding
her 	for 	insubordinate 	behavior 	and 	other 	comments 	about 	her
performance, copying his supervisor. He later referred to the reprimand
email during a team meeting, scolding, and humiliating her in front of
her peers,
q. At a branch wide meeting on November 15, 2022, her supervisor kept
texting her to turn her camera on, even though others did not have their
cameras on. He then called her after the meeting and said she looked
somber, upset, and gloomy,

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r. 	Complainant 	informed 	her 	performance 	coach 	and 	second-line
supervisor of the harassment on November 15, 2022. On November 16,
2022, she requested reassignment away from her chain of command
during the harassment investigation, but this did not occur for over a
month, so she was forced to take medical leave;
2. On October 26, 2022, her supervisor issued her a lower Fiscal Year 2022
performance rating than she deserved; and
3. In October 2022, her supervisor informed her that management would not
promote her directly to GS-13 without posting even though she requested
promotion on multiple occasions, and she has done higher graded work since
her transfer in early 2021.
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 timely requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s motion
and issued a summary judgment decision finding that Complainant was not
subjected to discrimination or reprisal as alleged. The Agency subsequently issued
a final order fully adopting the AJ’s decision. The instant appeal followed.
Having thoroughly reviewed the record and construing any inferences raised by the
undisputed facts in favor of Complainant, we find that a reasonable factfinder could
not find in Complainant’s favor. Assuming the facts in the light most favorable to
Complainant, there is no dispute that Complainant failed to take advantage of the
Agency’s anti-harassment procedures by delaying her report of the alleged harassing
conduct. The undisputed record shows that Complainant initially discussed being
uncomfortable with her supervisor’s conduct during a coaching session with the
Supervisory Staff Accountant on or around November 15, 2022. Complainant raised
among other things, several incidents of her supervisor giving her a hug; tickling her
belly; and grabbing her hand. However, Complainant indicated during this coaching
session that she did not want to report the conduct. Notwithstanding, after following
up with Complainant, the Supervisory Staff Accountant reported the allegations to
the Agency’s Anti-Harassment Program on December 9, 2022.

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By 	December 	16, 	2022, 	the 	Chief 	Financial 	Officer 	ordered 	Complainant’s
supervisor to have no contact with Complainant and informed him that he was being
reassigned pending an investigation. 	Based on the circumstances present, the
Commission finds that the Agency took prompt corrective action to separate the
parties and remove Complainant from her supervisor’s supervisory chain. There is
no evidence demonstrating that any similar conduct recurred after Complainant
reported the alleged harassment. Accordingly, the Commission finds that there is no
basis to impute liability on the Agency.
We also find that Complainant failed to establish that the explanations for the
employment actions at issue herein were a pretext for discriminatory or retaliatory
animus. 	For example, the full performance of Complainant’s position was GS-12
and management could not promote her to a GS-13 without issuing a vacancy
announcement for which she could apply. 	Complainant was rated as “Exceeded
Expectations” and her supervisor provided comments to develop and improve as an
employee. Finally, Complainant’s supervisor explained that he engaged with all his
subordinates for lunches, meetings and visits to their homes, especially during the
pandemic when employees were working remotely. 	Complainant’s supervisor
affirmed that he was encouraged to engage in team-building activities with his
subordinates to maintain interpersonal contact.
Upon careful review of the AJ’s decision and the evidence of record, including
arguments on appeal, we conclude that the AJ correctly determined that the
preponderance of the evidence did not establish that Complainant was subjected to
discrimination or reprisal as alleged. Accordingly, we AFFIRM the Agency’s final
order implementing the AJ’s decision.
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.

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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).
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.

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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 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 14, 2026
Date