EEOC Appeal 2026002460

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Tess W.,1
Complainant,
v.
Markwayne Mullin,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 2026002460
Hearing No. 443-2024-00020X
Agency No. HS-FEMA-02019-2023
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
April 16, 2026, 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. For the
following reasons, the Commission AFFIRMS the Agency’s final order.
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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BACKGROUND
From February 1, 2020, to February 1, 2024, Complainant served as a Public
Affairs 	Specialist 	at 	the 	Agency’s 	Region 	8 	facility 	located 	in 	Lakewood,
Colorado. She also served as the Regional Tribal Liaison. As the Region 8 Tribal
Liaison, Complainant served as the “FEMA representative for tribal-related issues
and requirements.”
On September 18, 2023, Complainant filed an EEO complaint alleging she was
subjected to discrimination on the basis of race (Native American) and in reprisal
for engaging in prior protected EEO activity when:
1) On or about September 6, 2023, management removed her from all
contact with the tribe and has not provided correspondence or updates
to her;
2) On or about August 25, 2023, management did not allow her to
take over the district annexes entirely as requested;
3) On or about August 23, 2023, management verbalized complaints
made by the Tribal Emergency Manager about her involvement in
events during December 2022;
4) 	On 	or 	about 	July 	26, 	2023, 	management 	entered 	negative
comments on her Quarter 2 Performance Review; and
5) From May 2023 to August 31, 2023, management assigned her job
duties to other employees, failed to provide her with a requested
reason for job reassignments and did not address a co-worker’s
negative interactions and statements to Complainant.
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 for Summary Judgment and issued a decision without a hearing
finding no discrimination. Subsequently, the Agency issued a final order adopting
the AJ’s decision. The instant appeal followed.

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Regarding claim 1, the AJ found that Complainant’s own statement indicated that
she attended key tribal meetings on May 26, June 22, July 12, and July 15, 2023,
either in person or virtually. The AJ further noted that, while Complainant voiced
concerns 	during 	some 	of 	these 	tribal 	meetings, 	the 	evidence 	disputed 	her
contention that she was excluded. The AJ found that the record showed that any
decrease in engagement was not related to Complainant’s protected classes but
because 	other 	staff 	had 	pre-existing 	relationships 	with 	the 	tribes, 	and
Complainant’s role as the Triable Liaison was not required.
The record also showed that Complainant was pulled back from the Emergency
Operations Plan (EOP) development process because there were a multitude of
tribunal issues in the region. Complainant, however, continued with the Cross-
Divisional Team, and was provided the opportunity to partner with someone to
develop the District Annex EOP component. According to the record, Complainant
declined the opportunity. While Complainant disagreed with not being made the
lead for the EOP project, the AJ found that the evidence supported the Agency’s
contention that its actions were based on management discretion and business
needs and not discriminatory or retaliatory intent.
Regarding claim 2, after management was informed that Complainant would be
virtually supporting the District Engagement on August 25, 2025, a decision was
made to have someone else handle it. 	The Agency stated that this decision was
made, in part, because of the importance of having face-to-face engagement. The
AJ found that beyond pure speculation, “there is not a scintilla of evidence the
Agency’s actions were motivated by anything other than management’s discretion
and business needs.”
Regarding claim 3, the AJ noted that the preponderance of the evidence indicated
that this matter never took place, i.e., the alleged comments were never made. If,
however, there were complaints made to management about Complainant and
various managers had discussions about the issues raised, the AJ found there was
no evidence it was motivated by discriminatory or retaliatory intent.
Regarding 	claim 4, Complainant 	alleged 	that 	management included negative
comments in her 2023, Quarter 2 Performance Review. The AJ found that although
Complainant 	disagreed 	with 	some 	of 	the 	comments 	that 	were 	made 	in 	the
performance review, there was no evidence that they were motivated by any
discriminatory or retaliatory intent.

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Regarding claim 5, Complainant alleged that management assigned her job duties
to 	other 	employees, 	failed 	to 	provide 	her 	with 	explanations 	for 	her 	job
assignments, and failed to address negative interactions and statements that were
made to her. 	The AJ noted the determination regarding claims 1 and 2 that there
was no evidence that any change in Complainant’s job duties were motivated by
discriminatory or retaliatory intent or pretext. The AJ further found that the
preponderance of evidence supported the Agency’s assertion that Complainant’s
responsibilities for field operations did not change as Tribal Liaison during the
period at issue. Regarding Complainant’s concerns not being addressed, the AJ
noted 	the evidence indicating 	that 	management 	took 	many 	steps 	to 	address
Complainant’s 	concerns. 	To 	that 	end, 	the 	record 	indicates 	Complainant 	had
multiple discussions with managers, and that various management officials held
discussions about Complainant’s concerns and told her the concerns were being
taken seriously.
As this is an appeal from a decision issued without a hearing, 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 Chap. 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”); see also EEO MD-110, at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an
administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).
The Commission’s regulations allow an AJ to grant summary judgment when they
find that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An
issue of fact is “genuine” if the evidence is such that a reasonable fact finder could
find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). A fact is
“material” if it has the potential to affect the outcome of the case. Id. When
considering summary judgment, facts and inferences must be viewed in the light
most favorable to the non-moving party. See Ricci v. DeStefano, 557 U.S. 557,
586 (2009).

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To successfully oppose a decision by summary judgment, a complainant must
identify, with specificity, facts in dispute either within the record or by producing
further supporting evidence and must further establish that such facts are material
under applicable law. 29 C.F.R. § 1614.109(g)(2); Celotex, 477 U.S. at 322-24; see
also EEO MD-110, at Chap. 7, § III.E. Such a dispute would indicate that a hearing
is necessary to produce evidence to support a finding that the Agency was
motivated by discriminatory animus. Here, however, Complainant has failed to
establish such a dispute.
Having 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. Upon careful review of the AJ’s decision and the evidence of
record, as well as the parties’ arguments on appeal, we conclude that the AJ
correctly determined that the preponderance of the evidence did not establish that
Complainant was discriminated against by the Agency 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.
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.

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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 14, 2026
Date