EEOC Appeal 2026000876

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Minh W.,1
Complainant,
v.
Pete Hegseth,
Secretary,
Department of War2
(Defense Intelligence Agency),
Agency.
Appeal No. 2026000876
Hearing No. 570-2024-00248X
Agency No. DIA-2023-00030
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
February 13, 2026 final order concerning an equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil
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.
2 Pursuant to Executive Order 14347, Restoring the United States Department of
War, issued on September 5, 2025, the Department of Defense is to be known as the
Department of War. Any references in the record or decision to the Department of
Defense should be read interchangeably as the Department of War.

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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.
During the period at issue, Complainant worked for the Agency as a Senior Defense
Intelligence Analyst (SDIA).
On May 5, 2023, Complainant filed a formal EEO complaint alleging that the
Agency discriminated against him based on national origin (spousal association with
Ukraine).
The Agency accepted Complainant’s complaint for investigation and determined
that it was comprised of the following claims:
1. 	On or about February 3, 2023, Chief, Europe Eurasia Regional Center
(EERC) a named Agency official removed his responsibilities of leading
weekly analytical exchanges.
2. 	On or about February 14, 2023, Complainant first gained reasonable
suspicion that he had been subjected to discrimination based on his
association with Ukraine when on September 15, 2022, Deputy Chief of
Analysis, EERC, [named Agency official] removed his responsibilities as
Senior Defense Intelligence Analyst for Ukraine and Belarus.
3. On or about March 2, 2023, a named Agency official former EERC Deputy
Chief of Operations (DCO) and the named Chief, EERC did not select him
for the position of EERC DCO. Complaint File (CF) Part I at 177.3
After an 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 (AJ). 	Complainant
timely requested a hearing.
3 Our citations to the Complaint File reference the page number of the pdf document
before us on appeal.

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On September 11, 2024, the Agency filed a Motion for Summary Judgment
(Agency’s Motion). 	CF Part I at 11-32. 	Therein, the Agency asserted that even
assuming that Complainant established a prima facie case of discrimination, the
Agency articulated legitimate, nondiscriminatory reasons for its actions. CF Part I
at 23-29. 	The Agency further found that Complainant failed to establish that the
articulated reasons were pretext for discrimination. Id. at 29-30.
On January 14, 2026, the EEOC AJ issued a decision granting the Agency’s Motion.
The AJ issued a decision without a hearing finding no discrimination. 	Id. at 4-8.
The AJ adopted the Agency’s Motion in its entirety. 	Id. at 7. 	The AJ found that
assuming that Complainant established a prima facie case of discrimination,
Complainant failed to present evidence to link his protected class to the Agency’s
actions. 	Id. 	The AJ found Complainant’s response to the Agency’s Motion to be
untimely filed reasoning that it was filed approximately one year after the initial
deadline. Id. The AJ also found that Complainant, in his untimely response, raised
the basis of reprisal, which was not an accepted basis in the instant matter. 	In
addition, the AJ found that Complainant, in his response, raised issues which were
not accepted for investigation, such as a suspension of his security clearance and his
placement on an indefinite suspension. Id.
The instant appeal followed.4 On appeal, Complainant asserts that the AJ erred in
adopting 	the 	Agency’s 	Motion 	in 	its 	entirety. 	Complainant’s 	Brief 	at 	3.
Complainant 	further 	asserts 	that 	AJ 	failed 	to 	rule 	on 	a 	Motion 	to 	Strike.5
Complainant asserts that he raised additional incidents in response to the Agency’s
Motion solely to establish pretext. Id. at 7.
In response, the Agency’s requests that we affirm the AJ’s decision. 	The Agency
sets forth that it was Complainant’s burden to prove his case at the hearing phase,
which he did not do. Agency’s Brief at 4.
4 While Complainant’s appeal was initially prematurely filed, on February 13, 2026,
the 	Agency 	issued 	a 	final 	action 	implementing 	the 	AJ’s 	decision. 	Thus,
Complainant’s appeal is now properly before us.
5 The Agency filed a Motion to Strike requesting that the AJ not consider
Complainant’s submissions in October 2025. 	The Agency reasoned that these
submissions were untimely filed.

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The Agency asserts that Complainant’s untimely response to its Motion for
Summary Judgment focused on claims that had not been accepted for investigation.
Id.
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).
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.
As an initial matter, we find Complainant’s Response to the Agency’s Motion for
Summary Judgment to be untimely.

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The AJ’s July 22, 2024, Order provided that the deadline to file a Motion for
Summary Judgment was September 11, 2024, and the deadline to file an Opposition
to Summary Judgment was September 25, 2024. Complainant filed his opposition
to the Agency’s Motion on October 10, 2025. 	Thus, we find the Complainant’s
response to be untimely filed.6
The AJ properly found that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. 	Regarding claims (1) and (2), the end of Complainant’s
temporary assignment/duties to EERC and return to his home unit (ATTC), the
record contains an affidavit from his supervisor/rater (S1) of record. 	Therein, S1
asserted that he consistently communicated with EERC officials that he would like
Complainant returned to ATTC as soon as possible. S1 asserted that Complainant’s
rotation to EERC was temporary and was never intended to be long-term. CF Part I
at 323.
The record also contains an affidavit from the Chief, EERC (Chief). 	Therein, he
asserted that Complainant was temporarily assigned to EERC in 2022, due to matters
pertaining to the Ukraine-Russia conflict. The Chief stated that officers frequently
rotated in and out for ninety days, but that Complainant remained supporting the
department longer than most. CF Part I at 243-244.
The record contains an affidavit from another Agency official (A1). 	Therein, A1
asserted that he believed Complainant was relieved of his temporary position due to
the demand from other departments to have their personnel on rotation return to their
home 	units. 	In 	addition, 	A1 	asserted 	that 	an 	unresolved 	conflict 	between
Complainant and another Agency employee may have contributed to this decision.
CF Part I at 283. A1 expressly asserted that “at no time did [the Chief] suggest that
Complainant’s spouse’s association with Ukraine was a factor.” 	Id. at 284. 	The
record also contains an email from S1 to A1, dated August 30, 2022, inquiring as to
when Complainant would return to his home unit. Id. at 294-295.
6 Nevertheless, even assuming arguendo that Complainant’s opposition to the
Agency’s Motion was timely, this would not alter our decision herein. We concur
with the AJ that Complainant, in his untimely response, raised a basis (reprisal) and
numerous other matters which were not accepted as part of the instant matter. See
CF Part 1 at 177.

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Complainant failed to establish that the Agency’s articulated reasons for its actions
regarding claims (1) and (2) were pretext for national origin discrimination (based
on Complainant’s spousal association with Ukraine).
Regarding claim (3), a non-selection claim, the Agency articulated legitimate,
nondiscriminatory reasons for Complainant’s non-selection. 	A three-person panel
conducted interviews for the position at issue. The panel unanimously agreed that
Complainant be selected for the position at issue. The Chair of the panel referenced
Complainant’s “extensive regional expertise.”7 CF Part II at 7. However, the Chief
found that Complainant was not the best qualified candidate. CF Part I at 252. The
Chief stated that “the most important expertise is knowledge of the Agency’s
Directorate of Operations [DO] how it is organized and how it functions...” Id. at.
253. 	The Chief, in his deposition set forth that the selection panel focused too much
on Complainant’s geographic expertise rather than the candidate’s understanding of
the DO. Agency’s Motion, Exhibit (Ex). B 9-B 10.
The record contains statements from other Agency officials corroborating that this
was the Chief’s concern with possibly selecting Complainant for the position at
issue. 	One Agency official asserted that he believed the Chief was looking for
someone that had been in DO for a significant length of time. Agency’s Motion Ex.
D 10. The Chair of the selection panel asserted that the Chief indicated to him that
he preferred the selectee’s DO functional experience. 	CF Part II at 3. 	One of the
members of the selection panel noted that Complainant’s “currency within the DO
is dated…” Id. at 106.
The selectee’s resume reflects that he possessed significant experience in DO. Id. at
76-81. 	One panel member noted 	that 	the selectee has excellent 	functional
competence and a strong understanding of DO integration. Id. at 102. 	Complainant
failed to establish that the Agency’s articulated reasons for his non-selection was
pretext for discrimination.
7 The Chair of the panel acknowledged that the vacancy announcement for the
position at issue did not set forth regional expertise as part of the selection criteria.
The Chair set forth that the emphasis in the vacancy announcement was on functional
experience. CF Part II at 5.

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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.
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. 	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.

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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.
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.

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