EEOC Appeal 2025004087

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Alex L.,1
Complainant,
v.
Markwayne Mullin,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 2025004087
Agency No. HS-ICE-02234-2023
DECISION
Complainant filed an appeal to the Equal Employment Opportunity Commission
(EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
July 23, 2025, final decision concerning his equal employment opportunity (EEO)
complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.
At the time of events giving rise to this complaint, Complainant was employed by
the 	Agency 	as 	a 	Special 	Agent 	(Criminal 	Investigator), 	Homeland 	Security
Investigations (HSI), GS-1811-13, at the Agency’s Field Office in San Diego,
California. Report of Investigation (ROI) at 212.
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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Complainant, male, engaged in prior protected EEO activity, having filed a formal
complaint on or about December 14, 2021. Complainant’s first-line supervisors
(Supervisors 1A, 1B, and 1C) consecutively were three Supervisory Special Agents.
ROI at 213, 441, 522, 536, 752-53, and 756. Complainant’s second-line supervisor
(Supervisor 2) was an Assistant Special Agent in Charge. ROI at 213. Complainant’s
third-line supervisor (Supervisor 3) was the Deputy Special Agent in Charge.
Complainant stated that he informed Supervisor 1A of his stress-related condition
(which he described as “actual” disability) during a meeting on July 13, 2021. He
asserted that his symptoms were evident during this interaction, citing physical
manifestations such as shaking hands, a cracking voice, and watering eyes.
Complainant also stated that he discussed his condition with a former Assistant
Special Agent in Charde in 2018, during which he requested a transfer due to
exacerbation of his stress. He alleged that that individual dismissed his concerns,
made derogatory comments, and suggested that he take on additional cases as a
solution.
Complainant asserted that he was able to perform all duties associated with his role
as a law enforcement officer and criminal investigator. He contended that being
reassigned to the Gangs and Weapons Group in 2021 exacerbated his stress-related
condition. He alleged that false accusations, denial of assignments, and career
impediments contributed to the worsening of his condition. He also expressed a
desire to avoid future assignments to the Gangs and Weapons Group or under
Supervisor 1A’s supervision at any level, citing these as necessary accommodations
for 	his 	medical 	condition. 	Complainant 	also 	asserted 	that 	he 	submitted
documentation to the Office of Workers’ Compensation Programs (OWCP) in
support of his claim. He noted that his physician recommended a 12-week leave in
2015 and additional accommodations in 2023, including avoiding reminders of the
traumatic events.
On October 30, 2023, Complainant filed an EEO complaint alleging discrimination
and subjected to harassment by the Agency on the bases of sex (male), disability
(actual), and reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when:
1. On July 27, 2022, Supervisor 2 issued Complainant a Proposal of Suspension
for seven days without pay, which was initiated by Supervisor 1A;

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2. On October 28, 2022, Supervisor 2 gave Complainant a performance appraisal
with a numeric rating of 3.0 (Achieved Expectations);
3. On May 17, 2023, Supervisor 3 gave Complainant a Notice of Decision Letter
upholding the proposed suspension, resulting in a three-day suspension
without pay; and
4. On or around August 11, 2023, Supervisor 2 and Supervisor 1A spoke
negatively about Complainant to Supervisor 1C, resulting in Supervisor 1C
stating: “We are starting with a clean slate.”
Citing to the Agency’s Appeal Brief Exhibit (Exh.) B at 2 (Final Agency Decision
dated February 26, 2024, for Agency Case no. HS-ICE-01988-2021), the Agency
noted that Claims 1 and 3 involving Complainant’s July 27, 2022 proposed
suspension and his subsequent three-day suspension had already been adjudicated in
his prior EEO complaint. See also Agency’s Appeal Brief Exh. A at 1-5 for EEOC
Appeal No. 2024002765 (July 30, 2025) upholding the Agency’s 2024 final decision
on all 32 claims. Specifically, the Agency found, and the Commission upheld that
finding, that Complainant was appropriately disciplined for continuing to be
disrespectful to his supervisor and for failing to follow her instructions. As such, this
decision will not readdress Claims 1 and 3 based on the doctrines of collateral
estoppel and res judicata. 2
2 Under the doctrine of collateral estoppel, once an issue is actually and necessarily
determined by a court of competent jurisdiction, that determination is conclusive in
subsequent suits based on a different cause of action involving a party to the prior
litigation. The Commission has previously held that the doctrine of collateral
estoppel is applicable to discrimination claims.” Veronica B. v. Dep’t of Army,
EEOC Doc. No. 0120180181, *4 (May 3, 2019). In other words, final judgment on
the merits of an action precludes the parties or their privies from relitigating issues
that were or could have been raised in that action. As courts have often recognized,
res judicata and collateral estoppel relieve parties of the cost and vexation of multiple
lawsuits, conserve judicial resources, and, by preventing inconsistent decisions,
encourage reliance on adjudication.

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We, however, note Complainant’s appeal argument regarding Claims 1 and 3 that
he was deprived of procedural due process rights because the deciding official in the
three-day suspension considered his prior misconduct as an aggravating factor in
determining 	the 	penalty 	without 	giving 	him 	an 	opportunity 	to 	respond.
Complainant’s Appeal Brief at 10. Yet, as the Agency observed, Complainant raised
the fact that he had prior discipline in his written response to the proposed discipline.
See ROI at 634-35. Complainant also acknowledged in that response that the
proposed discipline followed a previous disciplinary action for “same type of
allegations contained this proposed seven-day suspension.” See ROI at 635. As such,
we concur with the Agency’s conclusion that the deciding official properly
considered information that Complainant provided.
The Agency conducted an investigation into Claims 2 and 4. The investigation
revealed that on or about October 31, 2022, Complainant received his fiscal year
2022 (FY22) Performance Work Plan (PWP). ROI at 407. Complainant received an
overall rating of 3.0, which is an “Achieved Expectations” rating of record. ROI at
407. Complainant alleged that this rating was too low and that he should have
received a 5.0 rating, which is a perfect rating and a rating category of “Achieved
Excellence.” ROI at 228 and 407.
According to management, however, Complainant did not perform at a level
warranting a rating of greater than 3.0. A named Acting Supervisor (Supervisor 1B)
noted that Complainant’s “performance was on par with the minimum expectations
of the job.” ROI at 213, 224, and 757. Supervisor 1B came to this conclusion even
though he and Supervisor 2 gave Complainant the “benefit of the doubt.” ROI at
757. Supervisor 1B also noted that Complainant “was not seeking to do anything to
contribute to the group’s activities if it was not asked of him. When he did contribute,
it was with minimum effort, and everyone had to hear him explain five reasons why
what we were doing was stupid and why he didn’t want to do it.” ROI at 757.
Supervisor 1B further noted that Complainant “had been counseled about making
better use of his time instead of wasting it on something that was not required and
had a better solution which was provided but he repeatedly refused to use” with
regards to the uploading of interview DVDs (undefined acronym) for old cases,
which was no longer needed. Complainant’s refusal to properly use his time “kept
him from being able to use his time completing other assignments and being
available to help others in the group with their cases.” ROI at 759.

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Complainant also “was very passive aggressive when it came to communicating
some of his expertise,” as Complainant would “rant about why the government was
stupid or wrong before, during, or, after the expert advice, which took away from
the value of what he was providing.” ROI at 760. Supervisor 2 also told Supervisor
1B to give Complainant “a clean slate” and not to let any of his ongoing management
issues affect the way “I treated him.” ROI at 756.
Supervisor 1A had similar experiences with Complainant’s performance. Supervisor
1A stated that “Complainant was made aware of performance deficiencies in writing,
consistently throughout the FY22 performance period”, and that “as his first-line
supervisor during that time, [Supervisor 1A] informed Complainant of performance
deficiencies 	as 	they 	occurred.” 	ROI 	at 	448. 	Supervisor 	1A 	recounted 	that
Complainant “consistently failed to follow the instructions provided, did not
complete tasks by the imposed deadlines (even after being granted extensions), and
did not take advantage of the many opportunities [she] offered to help.” Id.
Supervisor 1C, who supervised Complainant about a year later in 2023, had similar
observations of Complainant, noting that Complainant’s “performance as a case
agent was not great” and that he “seemed to lack motivation” in running his own
investigations and being proactive. ROI at 527. According to Supervisor 1C, the
information 	he 	received 	from 	Supervisor 	2 	and 	Supervisor 	1A 	regarding
Complainant was related to Complainant’s work performance, which is something
a supervisor monitors. ROI at 526.
Supervisor 1C also asserted that these conversations took place around the time he
was selected to be the new Group Supervisor for the Weapons and Gang group. At
that time, Supervisor 2 spoke to Supervisor 1C about the group, and they discussed
each agent and what cases they were working on. It was in this context that
Supervisor 2 noted to Supervisor 1C that Complainant was performing poorly and
had his collateral duties taken away. Supervisor 1C also had a brief conversation
with Supervisor 1A shortly after he assumed his supervisory role over the Weapons
and Gang group.
Supervisor 1A informed Supervisor 1C that Complainant’s performance was below
average and that he “had particular trouble with his administrative tasks, such as
managing his cases in the Case Management System and inputting his time correctly
into WebTA [the Agency’s Time and Attendance system].” Supervisor 1A discussed
these issues with Supervisor 1C because she believed Complainant would raise them

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and did not want Supervisor 1C to be unaware. Supervisor 1C believed this
information was beneficial to know as an incoming supervisor.
According to Supervisor 1C, when he first met with Complainant in his Group
Supervisor role, Complainant stated that he assumed Supervisor 2 and Supervisor
1A had spoken to Supervisor 1C about Complainant’s performance issues. It was in
this context that Supervisor 1C informed Complainant that he wanted a fresh start
with Complainant. Supervisor 1C asserted that the information he received from
Supervisor 2 and Supervisor 1A did not influence his treatment of Complainant. ROI
at 451 and 525-26.
Complainant alleged that gender was a factor in management’s actions because,
among other things, “I am male and [Supervisor 1A] is female.” ROI at 229-30. He
also alleged that a female investigator received a higher rating than him, though he
admitted that she also received a lower rating than usual in FY22; and that another
female investigator had policy violations overlooked. Complainant did not identify
who these female investigators were, how they were similarly situated to him, or
what policies they allegedly violated. ROI at 230.
Complainant asserted that his disability, and prior protected EEO activity, were
factors because the U.S. Attorney’s Office (which is a separate federal agency)
placed him on a “blacklist” that amplified his disability. ROI at 231-32. Complainant
asserted that Supervisor 1C’s alleged statement that “we are starting with a clean
slate,” was based on his gender, disability, and/or prior EEO activity, because “it
was a factor in their ongoing treatment of me.” ROI at 243-44 and 523.
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 Equal Employment Opportunity Commission Administrative Judge, or a final
decision from the agency. After Complainant requested a decision, the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded
that Complainant did not prove that the Agency subjected him to discrimination as
alleged. Complainant then filed the instant appeal.

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On appeal, Complainant, among other things, reiterates his allegations. He argues
that he identified three female employees who had received more favorable
treatment. We will address Complainant’s arguments below.3
The Agency, in pertinent part, argued that its final decision should be affirmed.
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), 	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 9-16 (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”).
To prevail in a disparate treatment claim, a complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie
case by demonstrating that he/she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination. 	Furnco
Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at
802 n.13. 	The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a
preponderance of the evidence, that the agency’s explanation is a pretext for
discrimination. 	Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
(2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
At the outset, we assume but do not find that Complainant is an individual with
disability who was qualified to perform the essential functions of his position.
3 We note that Complainant submitted a 238-page response to the Agency’s appeal
brief. We however decline to review that document because such added pleadings
are not authorized under our regulations.

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Complainant 	stated 	that 	he had 	a stress-related 	condition, and 	he 	described
symptoms associated with that condition. Supervisor 1A and a former management
official 	were 	also 	aware 	of 	Complainant’s 	“actual” 	disability. 	Complainant
referenced 	“accommodations” 	he 	received 	through 	the 	Office 	of 	Workers’
Compensation Program that is administered by the federal Department of Labor, a
different agency. However, Complainant did not allege, and the record does not
reflect, 	that 	Complainant 	requested 	reasonable 	accommodations 	under 	the
Rehabilitation Act that is within the purview of the Commission or that the Agency
denied such a request. Therefore, we do not consider whether or not the Agency
failed to accommodate Complainant in violation of the Rehabilitation Act.
We find that the Agency provided legitimate, non-discriminatory explanations for
the challenged actions. However, Complainant provided no evidence to show that
the explanations were pretextual; and the record does not reflect that management’s
actions in Claims 2 and 4 were motivated by discriminatory or retaliatory animus.
Moreover, as the Agency observed in its appeal brief, though Complainant alleged
on appeal that he identified two named female Special Agents as comparators the
portion of the ROI to which he cited do not include their names. See Complainant’s
Appeal Brief at 3 and ROI at 141-42 and 190. Nor is there any evidence that the first
named female Special Agent received a higher rating or violated policy. ROI at 519.
As to Complainant’s appeal assertion that he identified a third comparator who
received an award for attending certain training, he failed to identify her by name or
explain how they are similarly situated. See Complainant’s Appeal Brief at 13. Nor
did Complainant state that that individual had instructions from her supervisor that
she needed to complete all her taskings before she could participate in that training
or failed to complete the assigned taskings yet attended the training. ROI at 255 and
475.
Regarding 	Claim 	2, 	management 	explained, 	and 	the 	record 	reflects, 	that
Complainant properly received a FY22 PWP rating of 3.0 Achieved Expectations
and not the 5.0 perfect rating of Achieved Excellence that he desired based on his
performance and unaddressed deficiencies of which he was made aware. ROI at 228
and 407. Multiple supervisors noted that Complainant did not perform at a level
warranting a perfect score.
As to Claim 4, Complainant himself admitted that he was not present for any
conversations between his previous supervisors. ROI at 241.

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It is therefore unclear how Complainant knew that Supervisors 2 and 1A spoke
negatively about him to his incoming supervisor, Supervisor 1C. Complainant also
admitted that his assertion was based entirely on a conversation he had with
Supervisor 1C. ROI at 242. Moreover, the record reflects, and Complainant did not
refute with any evidence, that Supervisor 1C’s statement that they were starting with
a “clean slate,” was only made because Complainant had stated that he assumed
Supervisors 1A and 2 had spoken to Supervisor 1C about his performance issues.
ROI at 526. As such, Complainant’s fail and he does not prevail.
To the extent that Complainant is alleging harassment, a finding of a hostile work
environment is precluded by our determination that Complainant did not establish
that the incidents alleged in Claims 2 and 4 occurred due to discrimination or
retaliation based on his sex, disability or any prior protected activity.
Therefore, based on our review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency’s final
decision finding no discrimination.
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. 	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).

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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. 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.

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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 24, 2026
Date