2025002814•EEOC Appeal 2025002814
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Mack B.,1 Complainant, v. Adam R. Telle, Acting Secretary, Department of the Army, Agency. Appeal No. 2025002814 Hearing No. 430-2018-00142X Agency No. ARHQMSDDC17APR01216 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), pertaining to his equal employment opportunity (EEO) complaint of employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency’s Military Surface Deployment and Distribution Command, located in Southport, North Carolina. On June 23, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him based 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.
2025002814 2 on age (over 40) when, on April 3, 2017, he received notification he was not selected for a Supervisory Police Officer, GS-0083-8 position. Complainant left the Agency shortly after he was not selected for the position. He then took a position with the Department of Veterans Affairs (VA) and retired from that position. 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. Complainant timely requested a hearing but subsequently withdrew his request. Consequently, on November 27, 2023, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant’s non-selection was presumably influenced by prohibited discriminatory bias, because the resume ranking panel members failed to provide legitimate, nondiscriminatory explanations for their ranking decisions and the Agency failed to maintain records related to Complainant’s non-selection. Thus, the FAD concluded that the Agency was unable to overcome an adverse inference that age discrimination was a factor in the hiring decision. The record did not support a finding, however, that age discrimination was the “but-for” cause of the non-selection at issue. The FAD ordered the Agency to offer Complainant the position of Supervisory Police Officer, GS-0083-08, or a substantially equivalent position, with back pay and other benefits retroactive to April 2, 2017. Complainant declined the offer of reinstatement. Complainant files this appeal seeking enforcement of the FAD. While Complainant’s appeal lacks details, the record indicates that Complainant has not received his backpay award as of the date he filed his appeal. EEOC Jurisdiction The Commission’s regulations provide that a final action that has not been the subject of an appeal or civil action shall be binding on the Agency. 29 C.F.R. § 1614.504(a). If Complainant believes that the Agency has failed to comply with the terms of a decision, he shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when Complainant knew or should have known of the alleged noncompliance. 29 C.F.R. § 1614.504(b). The agency shall resolve the matter and respond to the complainant, in writing. Id. If the agency has not responded to the complainant, in writing, or if the complainant is not satisfied with the agency's attempt to resolve the matter, the complainant may appeal to the Commission for a
2025002814 3 determination as to whether the agency has complied with the terms of the settlement agreement or decision. Id. The complainant may file such an appeal 35 days after he or she has served the agency with the allegations of noncompliance but must file an appeal within 30 days of his or her receipt of an agency's determination. Id. If the Commission determines that the Agency is not in compliance with its decision, and the noncompliance is not attributable to acts or conduct of Complainant, it may order such compliance with the decision. 29 C.F.R. § 1614.504(c). Here, it is not clear that Complainant filed a formal notice of noncompliance with the Agency or that the Agency issued a determination on the matter, but since the Agency has extensively briefed this matter, in the interest of judicial economy, we will move forward with evaluating the instant appeal. See Stanton S. v. Dep’t. of Health and Hum. Ser’v., EEOC Apepal No. 2021001706 (Aug. 30, 2022). Efforts to Comply with Backpay Award The Agency asserts that it has diligently worked to determine the amount of backpay and other benefits due to Complainant and has done so in coordination with the Defense Finance and Accounting Service (DFAS). Specifically, following the issuance of the FAD, the Agency immediately sought clarification from DFAS on how to process Complainant’s backpay. The Agency was prepared to pay Complainant a lump sum payment, but DFAS advised that Complainant would need to agree to a lump sum payment in lieu of backpay because the FAD ordered backpay. The Agency discussed this option with Complainant in or around April 2024, but Complainant declined to agree to a lump sum payment in lieu of backpay. Based on Complainant’s decision, the Agency began creating the documents necessary to facilitate the calculation of backpay and benefits as directed by DFAS. The FAD ordered the Agency to pay Complainant backpay from April 2, 2017, until December 14, 2023 (i.e., the date Complainant declined reinstatement). DFAS advised that the Agency should submit a recreated work history for Complainant to cover the timeframe and that DFAS would process the offsets needed due to his VA salary and the retirement annuity he collected during that time, in coordination with the VA and the Office of Personnel Management. The Agency created all of the
2025002814 4 work history documents and submitted them to the Civilian Human Resources Agency (CHRA)2 on or about August 12, 2024. From on or about August 12, 2024, until the present, the Agency coordinated with CHRA and DFAS on numerous occasions to determine what additional information may be needed to effectuate the backpay payment and benefits to Complainant as ordered in the FAD. On April 17, 2025, the Agency was notified that the DFAS Civilian Pay Settlement Team was unable to determine the way forward for effectuating the payment and the issue was under review by the DFAS Office of General Counsel. As of June 10, 2025, there was still no response. We find that the Agency has sought to pay Complainant the backpay and benefits as awarded in the FAD, but DFAS is the only entity that is able to process the payment and the necessary offsets that are outside of the Agency’s control. The Agency asserts that it has and will continue to coordinate diligently with DFAS to effectuate the ordered backpay and benefits to Complainant. As the record demonstrates that the Agency has taken affirmative steps to comply, we find that Complainant has not established his allegations of noncompliance. The Agency’s final decision remains in place, and the Agency remains obligated to ensure Complainant receives all backpay and other benefits that are due to him. 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. 2 CHRA is responsible for managing, developing, and supporting the Agency’s civilian workforce and provides a full range of human resources services.
2025002814 5 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).
2025002814 6 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 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 28, 2026 Date
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