EEOC Appeal 2026001029

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Kennith M.,1
Complainant,
v.
Daniel Driscoll,
Secretary,
Department of the Army,
Agency.
Appeal No. 2026001029
Agency No. ARCEFED25JAN000597
DISMISSAL
Complainant filed an appeal with the Equal Employment Opportunity Commission
(EEOC or Commission) from the Agency's decision dated January 20, 2026,
regarding his complaint of unlawful 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.
At the time of events giving rise to this complaint, Complainant worked as an
Information Technology Specialist, GS-2210-11, for the U.S. Army Corps of
Engineers – Far East District in South Korea. 	On January 24, 2025, Complainant
filed a complaint, which was subsequently amended, alleging that the Agency
subjected him to a hostile work environment on the bases of race (Asian), national
origin (Sri Lankan), disability (Post Traumatic Stress Disorder), and in reprisal for
prior protected EEO activity when:
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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a. 	Between November 27, 2024 through October 15, 2023, Chief Information
Management Officer exhibited unprofessional behavior during interactions
by raising his voice and denying a training;
b. On 	February 	18, 	2025, 	Person 	A, 	Complainant’s 	current 	supervisor,
requested 	that 	Complainant 	withdraw 	his 	EEO 	complaint 	and 	assured
Complainant of assistance in maintaining a paid status;
c. 	On February 20, 2025, Person B, Assistant District Counsel engaged in
discussions regarding a potential settlement; and
d. Complainant was constructively discharged from his role as GS-2210-11
Information Technology Specialist when he decided to participate in the
Deferred 	Resignation 	Program 	on 	March 	2, 	2025, 	and 	placed 	on
administrative leave since March 6, 2025.
In its January 20, 2026 final decision, the Agency found no discrimination and
provided Complainant with appeal rights to the Merit Systems Protection Board
(MSPB or Board) and not the EEOC.
A mixed case complaint is a complaint of employment discrimination filed with a
federal agency, related to or stemming from an action that can be appealed to the
MSPB. 	29 C.F.R. 	§1614.302(a)(1). 	An aggrieved person may initially file a
mixed case complaint with an agency or may file a mixed case appeal directly with
the MSPB, but not both. 	29 C.F.R. 	§1614.302(b). 	As a general matter, if
Complainant is dissatisfied with the Agency's final decision on a mixed case
complaint, Complainant may appeal the matter to the MSPB (not EEOC) within 30
days of receipt of the Agency's final decision. 29 C.F.R §1614.302(d)(l)(ii).
In the present matter, the Agency determined that Complainant's claim was a
mixed case complaint and issued a final decision finding no discrimination. 	The
final decision gave Complainant mixed case appeal rights and instructed him to file
with the MSPB, not the EEOC. The Agency notes Complainant filed an appeal on
the subject final decision with the MSPB which is still pending before the Board.

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Despite the Agency’s instructions, Complainant filed his appeal from the Agency's
final decision on a mixed case complaint with the EEOC, and the appeal is
DISMISSED.2
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.
2 We note that the Commission's regulations require that should the MSPB dismiss
an 	appeal 	for 	lack 	of 	jurisdiction, 	the 	Agency 	is 	required 	to 	recommence
processing the matter as a non-mixed case. 29 C.F.R. § 1614.302(c)(2)(ii).

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