2025000754•EEOC Appeal 2025000754
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Mathew R.,1 Complainant, v. Troy E. Meink, Secretary, Department of the Air Force, Agency. Appeal No. 2025000754 Agency No. 6T0M2302937F24 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 22, 2024, final agency decision (FAD) 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 MODIFIES the Agency’s final decision. At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency’s 911th Air Force Support Squadron (FSS), Military Family Readiness (FSFR), at Pittsburgh Air Reserve Station, Pennsylvania. 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.
2025000754 2 Complainant previously worked for the 911th FSS/FSFR as an Airman & Family Readiness Program Manager, GS-12, but his employment was terminated on November 6, 2021.2 On April 7, 2023, Complainant filed a Formal EEO Complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), disability (mental and physical), and reprisal for prior protected EEO activity when: 1. On February 6, 2023, Complainant was notified through USA Jobs that he was not selected for the position of Airman & Family Readiness Program Manager, GS-0101-12, (Program Manager), 911th FSS/FSFR; 2. On February 14, 2023, Complainant was informed by the Total Force Service Center that the Agency (falsely) stated that his disability information was not included with the application materials; and 3. On January 30, 2023, Complainant was not provided the opportunity to interview for the Program Manager position, as were other applicants, even though he has a Veterans Administration (VA) disability documented with Schedule A letter. The Mission Support Group Commander (MSG Commander) was the hiring officer for the Program Manager vacancy referenced in this complaint. MSG Commander was also the deciding official for Complainant’s November 6, 2021, termination, and she was named as a responding management official in Complainant’s prior EEO complaint. At MSG Commander’s recommendation, Complainant’s application was not considered for the Program Manager vacancy. 2 The Commission takes judicial notice of the decision and case file for Complainant’s prior EEO complaint, Theo B. v. Department of the Air Force, EEOC Appeal No. 2023001038 (February 13, 2024) (Agency No. 6T0M2100478F22) reconsideration denied EEOC Request No. 2024002583 (April 2, 2025). The record for Theo B. contains the Notice of Decision to Remove, dated November 3, 2021, and the allegations in the complaint are related to the stated grounds for Complainant’s removal. The Commission found that Complainant failed to prove discrimination as alleged.
2025000754 3 When Complainant filed the instant complaint, he included a claim that the Agency implemented “a policy of blackballing or blacklisting [Complainant] from being hired into any position.” When the Agency issued a Letter of Acceptance omitting the blacklisting claim, Complainant notified the Agency multiple times, but the Agency failed to investigate or render a decision regarding blacklisting. Prior to the completion of the investigation, Complainant filed four requests to amend his complaint. After initially failing to respond, the EEO Administrator informed the EEO Investigator that the Agency did not accept Complainant’s amendments due to “abuse of process.” The Agency did not issue an appealable decision on Complainant’s amendments or forward the amendments for processing as separate EEO complaints. Complainant filed a fifth request to amend the instant complaint after the investigation concluded. After investigating Claims 1, 2, and 3, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. In accordance with Complainant’s request, the Agency issued a final agency decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to establish discrimination or reprisal as alleged. In rendering its decision, the FAD noted extensive evidentiary deficiencies in the ROI. For instance, there was no documentation regarding interviews and scoring for the Program Manager position. The FAD also noted that the Agency did not maintain interview records after selection. Nevertheless, the FAD determined that the Agency established a legitimate nondiscriminatory reason for its actions (termination/removal for cause), and Complainant offered no evidence that the reason was pretext for discrimination. However, the FAD also found the Agency liable for per se reprisal, citing the EEO Office’s failure to process Complainant’s amendments. To resolve the per se reprisal, the FAD drew the following adverse inference: Had Complainant’s amendments been investigated, “such an investigation may have shown that Complainant established a prima facie case of reprisal and the Agency failed to articulate a legitimate nondiscriminatory reason for its actions.”
2025000754 4 In other words, the Agency inferred that Complainant succeeded on the merits on all four requested amendments raised during the investigation, including nonselections. The FAD ordered the Agency to pay Complainant $9,000 in nonpecuniary compensatory damages, and to provide the EEO Administrator with 2 hours of training that addresses “the EEO Process, acceptance and dismissal of claims.” The FAD also found that Complainant was entitled to reasonable attorney’s fees and costs. The Agency provided the Commission with documentary evidence establishing that it fully complied with the FAD’s order. Complainant raises numerous contentions on appeal: Regarding the processing of his complaint, Complainant contends that he was repeatedly prejudiced because the Agency delayed the investigation, his blacklisting claim was not investigated, and Management “blocked the investigation” by destroying documents. He asserts that the FAD’s “reminder” to the Agency of its obligation to maintain documentation of personnel decisions was insufficient because it failed to address the prejudicial impact on Complainant’s case. Instead, the FAD should have applied an adverse inference that any missing documents would have reflected unfavorably on the Agency. Regarding the requested amendments and finding of per se reprisal, Complainant contends that the FAD erred when it did not amend his complaint to include his blackballing allegation and the five additional claims of discrimination. In the alternative, Complainant argues that the FAD misapplied the adverse inference intended to cure the EEO Administrator’s failure to process the amendments. He reasons that because the requested amendments alleged nonselection, the FAD’s adverse inference entitled Complainant to placement into one of the positions he raised in his nonselection claims. As for compensatory damages, Complainant contends that the FAD erred when it determined a monetary amount without first providing him with an opportunity to submit evidence to support a larger award. Regarding the merits of his complaint, Complainant contends that he was wrongfully terminated, and the Agency is citing his termination as pretext for continued discrimination and reprisal, including blacklisting. Complainant states that he applied to five positions in December 2022, and was not interviewed for any of them, despite his veteran and Schedule A status, and superior qualifications.
2025000754 5 Regarding the Program Manager position in Claim 1, Complainant maintains that he was the most qualified candidate, having served in the position from 2017 through his termination in 2021 with demonstrated success. He received performance ratings of “Outstanding” as well as cash awards, from 2019 through 2021, and, in 2021, he received a “Wingman Saves Award” for saving a service member’s life in the performance of his duties. According to Complainant, the termination was the first disciplinary action of his career, and multiple management officials and colleagues opposed his termination. Moreover, the selectee for his former Program Manager position was “objectively unqualified.” As further indicia of discriminatory and retaliatory motivation, Complainant provides examples where the Agency allegedly manipulated the hiring process and violated protocol to avoid reinstating him to his former position. Complainant recounts that his former second level supervisor, who allegedly believed Complainant should be returned to his job, should have been the hiring official for the Program Manager vacancy based on the organizational structure of the 911th FSS/FSFR. Instead, MSG Commander, who approved Complainant’s termination, and allegedly blacklisted him, was the hiring official. Complainant also contends that the Agency was required to interview him when the original selectee declined the Program Manager position because Complainant was the only other Schedule A candidate. The Agency failed to do so and provided a false explanation (Claim 2) when he inquired about why he was not interviewed. 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 Chapter 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”). Sanctions – Failure to Maintain Records The Commission, on appeal, may issue sanctions where an agency or its employees fails without good cause shown to respond fully and in timely fashion
2025000754 6 to an investigator's requests. See 29 C.F.R. § 1614.108(c)(1); EEO MD-110, Ch. 6. Such sanctions may include drawing an adverse inference that the requested information would have reflected unfavorably on the party that fails to provide the requested information. 29 C.F.R. § 1614.108(c)(3); James R. v. Dep’t of Commerce, EEOC Appeal No. 2024000624 (May 30, 2025). The Commission's regulations do not require a finding of willfulness or bad faith as a prerequisite to the issuance of a sanction. Clayton v. United States Postal Serv., EEOC Appeal No. 0720070042 (Jul. 26, 2007) (affirming AJ imposition of adverse inference where the management official failed to retain interview notes, even though there was no evidence that the Agency acted in bad faith.) Here, despite the EEO Investigator’s requests, the Agency failed to provide documentation of Complainant’s prior EEO activity, competitive selections made during the prior two-year period, position description for the position at issue, request for personnel action requesting the recruitment, merit promotion or vacancy announcement for the position at issue, instructions given to the panel members, evaluation criteria used by panel members and/or selecting official, notification of personnel action SF-50, effecting the selection and documentation of Complainant’s notification of nonselection. The Agency did not show good cause for failing to provide the requested documents. Moreover, the MSG Commander admitted that the interview notes and score sheets were not kept on file after hiring, as is required under EEOC regulations. Therefore, we will apply an adverse inference that the requested information would have reflected unfavorably on the Agency. Specifically, we infer that Complainant had substantially more knowledge and experience relevant to the position of Program Manager for the 911 th than any other candidate, including the selectee. We note that application of adverse inference does not guarantee a finding of discrimination. Mana H. v. Dep’t of the Navy, EEOC Appeal No. 0120170670 (Apr. 27, 2018) citing Newbold-Reece v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120073324 (Nov. 17, 2009) (applying adverse inference due to failure to preserve records from the selection process, did not result in a finding of discrimination because the complainant did not establish that they would have been chosen over the selectee for the position) and Clayton.
2025000754 7 Amendment Requests Under 29 C.F.R. § 1614.106(d) a complainant may amend their complaint, at any time prior to the conclusion of the investigation, to include issues or claims that are like or related to those raised in their complaint. Upon receipt of a complainant’s request, the agency must provide the complainant with a written acknowledgement of the request, including the date on which the amendment was filed. See 29 C.F.R. § 1614.106(e); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 5 § III.B (rev. Aug. 5, 2015). Then, the agency, through its EEO Director or designee, must determine whether the amendment request raises a new claim or issue, and if that claim or issue is “like or related” to the pending complaint. If the agency determines that the amendment request contains a claim that is “like or related,” the agency must amend the pending complaint to include the “like or related” claim. 29 C.F.R. § 1614.108(f); EEO MD-110 Ch. 5 § III.A. If the agency determines that the amendment request contains a claim that is not “like or related,” that claim should be processed as a separate complaint. Id. Complainant’s requested amendments alleged discrimination and harassment on the bases of sex (male), disability (mental and physical), and reprisal for prior protected EEO activity when: 1. On May 3, 2023, Complainant became aware that his military ID was flagged as “Yellow” and “Site warning,” although this occurred multiple times when entering the 911th and the 171st bases, resulting in one 30-minute delay, Complainant was ultimately permitted to enter the bases each time; 2. On July 19, 2023, Complainant became aware that he was not selected for the position of Human Resources Specialist; 3. Complainant became aware that he was referred to for the position of Executive Staff Specialist, but not interviewed or selected; 4. In August 2023, Complainant became aware that with the Greater Pittsburgh Airport, Pennsylvania, the Agency’s stated reason for not offering an interview was that Complainant lacked the specialized
2025000754 8 experience required for the position, even though Complainant was well qualified: a. On August 25, 2023, Complainant became aware that he was not selected for the position of Unit Deployment Manager, GS- 0301-9 (Announcement No. 6T-AFPC-12030332-064243- MHS); b. On August 27, 2023, Complainant became aware that he was not selected for the position of Human Resources Specialist (Recruitment & Placement), GS-0201-9 (Announcement No. 6T-AFPC-12090893-074390-FNA); and 5. On March 1, 2024, Complainant became aware that he was not selected for the position of Prevention Specialist position 911th wing, even though he was referred and interviewed. Although they were raised prior to the conclusion of the investigation, the amendment requests listed as Claims 1-4 should have been processed separately because they are not sufficiently “like or related” to the instant complaint. Specifically, claims 1-4 describe events that occurred months after Complainant’s nonselection for the Program Manager position, and involved different management officials. The requested amendment in Claim 5 occurred after the investigation, so it cannot be included as part of the instant complaint. However, the Agency does not dispute that Complainant raised Claim 5 with the EEO Office, and the matter was not processed. To the extent that it has not already done so, the Agency shall docket the requested amendments, listed above as Claims 1-5, in a separate EEO complaint, and process the complaint in accordance with 29 C.F.R. § 1614.108. If the Agency, due to its initial failure to process these claims, is unable to develop an appropriate investigative record, the deciding official (AJ or FAD) may consider applying an adverse inference. See 29 C.F.R. §§ 1614.108(a)-(c).3 3 The parties may also resolve the matter through alternative dispute resolution (ADR) at any stage of the EEO process. See 29 C.F.R. §§ 1614.102(b)(2), .108(b); EEO MD-110 at Ch. 3 § III.B; Administrative Dispute Resolution Act of 1996 (ADRA) (encouraging federal agencies to adopt and promote the use of ADR).
2025000754 9 Per Se Reprisal Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law. See, e.g. Binseel v. Dep’t of the Army, EEOC Request No. 0597054 (Oct. 8, 1998) (complainant told that filing an EEO suit was “wrong way to go about getting a promotion”). The FAD properly found the EO Administrator engaged in per se reprisal. By falsely informing the EEO Investigator that Complainant’s requests to amend his complaint amounted to “abuse of process,” the EEO Administrator discouraged Complainant from participating in the EEO process.4 The FAD’s remedies of compensatory damages, reasonable attorney’s fees, and training for the EEO Administrator were appropriate. However, with respect to the amount of compensatory damages, we agree with Complainant that additional evidence is needed. We also recommend that the Agency consider taking disciplinary action against the EEO Administrator. The FAD also properly acknowledges that the EEO Administrator effectively denied Complainant’s right to participate in the EEO process through the prolonged lack of response to his amendment requests, and subsequent failure to forward the requests for processing. As a remedy, the FAD inferred that Complainant prevailed on the merits for the four requested amendments raised during the investigation, including nonselections (i.e. default judgment). Given that Complainant has already received at least $9,000 in compensatory damages for per se reprisal, and that the claims in the requested amendments were not processed at all, we find the adverse inference has the potential to exceed “make whole” relief. 4 Dismissals for misuse or abuse of process under C.F.R. § 1614.107(a)(9) are rare and require evidence demonstrating that the complainant specifically intended to misuse the EEO process. See, e.g. Lyle P. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019005269 (Sept. 11, 2020) (complainant not only filed EEO complaints on 35 non-selections, but he also deliberately sought to relitigate claims already litigated and closed, and to overwhelm the Agency’s EEO office as a tactic to obtain a default judgment against the agency).
2025000754 10 See Thomas v. Dep’t of State, EEOC Appeal No. 01932717 (Jun. 10, 1994) (an award outside the scope of make-whole relief would amount to a windfall to a complainant and it is not required). As previously discussed, we find an appropriate solution is to accept the requested amendments for processing. Upon further development of the record, the deciding official may find that the Agency’s actions prejudiced Complainant to such an extent that an adverse inference of other sanction is warranted. Compensatory Damages Compensatory damages are awarded to compensate a complainant for losses or suffering inflicted due to an agency’s discriminatory act or conduct. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 11 (rev. Aug. 5, 2015) citing Carey v. Piphus, 435 U.S. 247, 254 (1978). Compensatory damages “may be had for any proximate consequences which can be established with requisite certainty.” EEO MD-110 at Ch. 11 § VII, citing 22 Am Jur 2d Damages § 45 (1965). To support an amount with “requisite certainty,” a complainant must demonstrate that (1) they were harmed because of the Agency's discriminatory action (causal nexus); (2) the extent, nature, and severity of the harm; and (3) the duration or expected duration of the harm. Rivera v. Dep’t of the Navy, EEOC Appeal No. 01934157 (Jul. 22, 1994) reconsideration denied Request No. 05940927 (Dec. 11, 1995). Here, the Agency reasoned that the amount of $9,000 was appropriate because in Fawn G. v. Department of Justice, EEOC Appeal No. 2022004711 (August 27, 2024), the Commission affirmed an AJ award of $9,000 in compensatory damages for per se reprisal. However, in Fawn G., the award was supported by evidence (Complainant’s testimony) identifying harm she experienced because of the per se reprisal. The FAD does not identify any “proximate consequences” or harm incurred by Complainant, nor does it discuss a causal nexus between the harm and the per se reprisal. Our guidance provides that the Commission may either set out the amount of compensatory damages to be awarded by an agency, or remand the matter to the agency for a determination of the amount of compensatory damages. EEO MD-110 at Ch. 11 § VII. In this case, the FAD did not explain how it established, with requisite certainty, the amount of $9,000 in compensatory damages, and, on appeal, Complainant disputes this amount.
2025000754 11 Therefore, we remand the matter to the Agency for a determination on whether Complainant is entitled to more than $9,000 in compensatory damages for harm arising from the per se reprisal. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted based on a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). For purposes of this analysis, we assume Complainant can establish a prima facie case for discrimination based on sex, disability, and reprisal. We also apply the adverse inference, and assume Complainant had substantially more knowledge and experience relevant to the position of Program Manager for the 911 th , than any other candidate, including the selectee.
2025000754 12 Claims 1, 2, and 3, all relate to Complainant’s nonselection for the position of Program Manager for the 911 th FSS/FSR. The Agency presented a legitimate nondiscriminatory reason for its actions. Namely, Complainant was removed for cause from the same position just over a year earlier. Having considered the evidence of record, we find that Complainant has not established that the Agency’s proffered reason is pretext for an underlying discriminatory or retaliatory animus. In a non-selection case, pretext may be demonstrated by a showing that complainant's qualifications are observably superior to those of the selectee. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) citing Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant established, through adverse inference, that his education and experience were observably superior to that of the selectee. However, on its face, a prior termination from the same position is reasonable justification to disqualify an applicant regardless of their experience, knowledge, and prior success in the position. See Complainant v. Dep’t of the Treas., EEOC Appeal No. 0120180306 (May 17, 2019) (complainant was not selected for multiple positions after being placed on the best qualified list when management officials recommended against selecting Complainant because he was terminated twice from the same position). Therefore, Complainant cannot establish pretext on the grounds that his qualifications are observably superior to those of the selectee. With respect to “blackballing” or “blacklisting,” Complainant has not offered any evidence, aside from bare assertions, that Management acted in consort to deny him employment opportunities. See Amie H. v. Dep’t of the Navy, EEOC Appeal No. 0120180695 (Jul. 2, 2019). Considering the Agency’s legitimate nondiscriminatory reason for its actions, the fact that Complainant was not hired for other positions within the Agency is not sufficient to support a claim of discriminatory or retaliatory blacklisting. We are also unpersuaded by Complainant’s argument that the Agency’s explanation was pretext because MSG Commander violated disability hiring policy. Schedule A special hiring authority is not mandatory in any specific hiring decision for federal agencies. See Hein v. Nat’l Archives & Records Admin., EEOC Appeal No. 0120123266 (Aug. 5, 2013) citing 5 C.F.R. §213.3102(u). Moreover, the Commission’s role is to determine whether a complainant was subjected to discrimination, not whether the agency effectively implemented its Schedule A program.
2025000754 13 Complainant v. EPA, EEOC Appeal No. 0120081695 (Oct. 31, 2013), see, e.g. Rumberg v. Dep’t of the Army, EEOC Appeal No. 0120091374 at 3 (Apr. 28, 2009) (the complainant failed to establish discrimination because, even if the agency failed to properly consider Schedule A applicants, the record “does not reflect that [the] agency’s misapplication of the Schedule A process was undertaken with discriminatory animus.”) Regardless, Complainant’s Schedule A status is irrelevant because Complainant’s termination rendered him unqualified for the Project Manager position. Complainant’s remaining appellate arguments are predicated on the assumption that Complainant was wrongfully terminated. Regardless of whether Complainant believes it was warranted, the record supports the Agency’s position that Complainant was previously terminated for cause. Accordingly, the Agency’s finding that Complainant failed to prove, by a preponderance of the evidence, that he was subjected to discrimination or reprisal as alleged is AFFIRMED. The Agency’s finding of per se reprisal is MODIFIED. We hereby REMAND this matter to the Agency for further processing in accordance with this Decision and the following Order. ORDER 1. New Complaint of Discrimination. Within fifteen (15) calendar days of the date this decision was issued, the Agency shall docket a new EEO complaint comprised of the five amendment requests that the EEO Administrator erroneously failed to forward for processing. The Agency shall frame and process the complaint in accordance with the section in this Decision entitled “Amendment Requests.” The Agency shall include a copy of this Decision in the investigative file for the new complaint. a. In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Commission will issue sanctions against agencies when it determines that agencies are not
2025000754 14 making reasonable efforts to comply with a Commission order to investigate a complaint. b. The Agency shall provide the EEO Counselor with a copy of the Letter of Acceptance articulating the claims and the new Agency docket number. If the Agency has already addressed any of the five requested amendments in an EEO complaint, or settlement agreement, the Agency shall provide the EEO Compliance Officer with a Letter of Acceptance articulating the claim(s) or a signed copy of the settlement agreement. 2. Compensatory Damages. Within sixty (60) calendar days of the date this decision is issued, the Agency shall conduct and complete a supplemental investigation to determine if Complainant is entitled to compensatory damages for the per se reprisal, in addition to the undisputed amount of $9,000. In so doing, the Agency shall: a. Issue a notice to Complainant of his right to submit evidence based our guidance in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993) and request evidence from Complainant in support of compensatory damages.5 The Notice shall provide Complainant with thirty (30) calendar days to respond (with an option and instructions to request an extension in the case of extenuating circumstances). Complainant has a duty to cooperate with Agency’s investigation to determine compensatory damages, including responding to agency requests for documentation or completing agency forms. 5 Information on evidence to support compensatory damages: EEOC Management Directive 110, Ch. 11 § VII (Aug. 5, 2015), available at https://www.eeoc.gov/federal-sector/management-directive/chapter-11-remedies (provides the types of compensatory damages available under EEOC statutes and “Objective Evidence” of entitlement); and N. Thompson, Compensatory Damages in the Federal Sector: An Overview, EEOC Digest Vol. XVI, No. 1 (Winter 2005) available at https://www.eeoc.gov/federal/digest/xvi-1.cfm#article (explains Carle v. Dep’t of the Navy under the subsection “Proof of Damages”).
2025000754 15 b. Issue a new final agency decision (“Compensatory Damages FAD”) based on the findings of the supplemental investigation. The Compensatory Damages FAD shall state the amount of compensatory damages owed to Complainant and explain how the Agency determined that amount. The Compensatory Damages FAD shall include appeal rights to the Commission. c. Within sixty (60) calendar days of the date the Compensatory Damages FAD is issued, the Agency shall, to the extent that it has not already done so, pay Complainant the amount of compensatory damages it determined are owed. If there is a dispute over the exact amount of compensatory damages owed, the Agency shall pay the undisputed amount to Complainant. If Complainant disagrees with the agency’s award, he may challenge the Agency’s decision on the amount of compensatory damages by filing an appeal of the Compensatory Damages FAD with the Commission. Instructions on how to appeal, including the deadline to file, will be included in the appeal rights portion of the Compensatory Damages FAD. 3. Consider Disciplinary Action. Within one hundred twenty (120) calendar days from the date this decision is issued, the Agency shall consider taking the following disciplinary action. The Commission does not consider training to be disciplinary action. a. Consider disciplining the individual identified in this decision as “EEO Administrator” for violating Complainant’s EEO rights by causing egregious delays forwarding the complaint for investigation, and by failing to process the requested amendments. b. Consider disciplining the individual identified in this decision as “MSG Commander” for failing to retain interview notes for the Program Manager position and failing to furnish requested documentation to the EEO Investigator.
2025000754 16 c. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the individual(s) has left the Agency’s employ, the Agency shall furnish documentation of their departure dates. 4. Posting Notice. Within thirty (30) calendar days of the date this decision is issued, the Agency shall post a notice in accordance with the section listed below, entitled “Posting Order.” The Agency shall provide the Compliance Officer with the original signed and dated notice, reflecting the dates that the notice was posted, along with evidence that the notice was physically posted at the facility and electronically. 5. Attorney’s Fees. To the extent that Complainant is the prevailing party, Complainant is entitled to attorney’s fees and costs in accordance with the section listed below, entitled “Attorney’s Fees.” The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The report must include supporting documentation that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Agency’s 911th Air Force Support Squadron (FSS), Military Family Readiness (FSFR), at Pittsburgh Air Reserve Station, Pennsylvania, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material.
2025000754 17 The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1125) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), they are entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Sector -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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).
2025000754 18 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.
2025000754 19 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 22, 2026 Date
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