2025001479•EEOC Appeal 2025001479
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Agustin L.,1 Complainant, v. Adam Telle, Acting Secretary, Department of the Army, Agency. Appeal No. 2025001479 Hearing No. 480-2024-00223X Agency No. ARUIJONG22JUN02500 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 January 10, 2025 final decision concerning his equal employment opportunity (EEO) complaint of employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. At the time of events giving rise to this complaint, Complainant worked as an Equipment Specialist in the Agency’s U.S. Army Communications Electronics Command at Camp Case in Seoul, South Korea. 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.
2025001479 2 On September 1, 2022, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on disability (mental) when on June 7, 2022, he was notified that the Lab Chief and the Regional Operations Coordinators (ROCs) denied his return rights to Fort Bragg at the end of his overseas assignment. The pertinent record shows that one of the conditions of Complainant’s employment required him to sign a mobility agreement that governed deployments on a rotational basis outside the continental United States. The assignments are based on the needs of the mission. Complainant’s assignment at the relevant time was in Korea, but he previously was assigned to Fort Bragg. Complainant learned on June 7, 2022, that his next duty assignment was at Fort Drum, and that he was not being returned to Fort Bragg. 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 (AJ). Complainant requested a hearing; however, the AJ dismissed the request as untimely filed and remanded the matter to the Agency for a final decision. The Agency issued a final decision, pursuant to 29 C.F.R. § 1614.110(b), finding that Complainant was not subjected to discrimination as alleged. This appeal followed. The record demonstrates that Complainant received the report of investigation and notice of his right to request a hearing on February 14, 2023. A review of the notice reveals that the Agency properly advised Complainant that he had 30 calendar days after receipt of the report of investigation to request a hearing. Therefore, to be considered timely, Complainant’s hearing request had to be filed no later than March 16, 2024. Complainant claimed that had not received the notice of his rights issued on February 14, 2024, which had been sent to his work email, while he was on leave. The Agency attempted to follow up with Complainant on several occasions. Complainant did not file a request for a hearing until February 16, 2024. A complainant must act with due diligence in pursuit of his claim. Alice S. v. Soc. Sec. Admin., EEOC Appeal No. 2019002475 (Sept. 22, 2020) (finding that a complainant who stated she did not receive email inviting her to attend initial conference failed to provide adequate justification for failing to comply with an AJ's orders and that dismissal of hearing request was appropriate sanction).
2025001479 3 In Irene C. v. U.S. Postal Serv., EEOC Appeal Nos. 2021002236, 2021002238 (Sept. 8, 2022), the Commission found that due diligence includes “providing an email address at which one is likely to be reached” and that the complainant should have listed her work email address or checked the spam folder for her personal email address regularly while her hearing request was pending. Here, under the particular circumstances presented, we find that, in not providing an email at which he was likely to be reached to the Agency and in not regularly checking his work email, Complainant exhibited a lack of due diligence. Accordingly, the Agency properly issued a final decision. Turning to the merits of the instant complaint, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Director, Communications – Electronics Command, stated that Complainant worked as a Switch Logistics Assistance Representative (LAR). At the time, there were four Switch LARs at Fort Bragg and no Switch LARs at Fort Drum. As a result, management decided to assign Complainant to Fort Drum as there was a greater need there for a LAR. The Agency made every effort to assign employees to their desired locations; however, program requirements may require assignments to other locations other than previous locations. Complainant presented no evidence demonstrating that the Agency’s reasons for its actions were pretextual. Upon our thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we conclude that the preponderance of the evidence supports the Agency’s decision finding that Complainant was not subjected to discrimination as alleged. Accordingly, for the reasons and the analysis stated herein, we AFFIRM the Agency’s final 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
2025001479 4 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. 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).
2025001479 5 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 thetime 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 23, 2026 Date
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