EEOC Appeal 2025001479

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Agustin L.,1
Complainant,
v.
Adam Telle,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 2025001479
Hearing No. 480-2024-00223X
Agency No. ARUIJONG22JUN02500
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
January 10, 2025 final decision concerning his equal employment opportunity
(EEO) complaint of employment discrimination in violation of 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 worked as an
Equipment Specialist in the Agency’s U.S. Army Communications Electronics
Command at Camp Case in Seoul, South Korea.
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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On September 1, 2022, Complainant filed an EEO complaint alleging that the
Agency discriminated against him based on disability (mental) when on June 7,
2022, he was notified that the Lab Chief and the Regional Operations Coordinators
(ROCs) 	denied 	his 	return 	rights 	to 	Fort 	Bragg 	at 	the 	end 	of 	his 	overseas
assignment.
The 	pertinent 	record 	shows 	that 	one 	of 	the 	conditions 	of 	Complainant’s
employment required him to sign a mobility agreement that governed deployments
on a rotational basis outside the continental United States. The assignments are
based on the needs of the mission. Complainant’s assignment at the relevant time
was in Korea, but he previously was assigned to Fort Bragg. Complainant learned
on June 7, 2022, that his next duty assignment was at Fort Drum, and that he was
not being returned to Fort Bragg.
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 (AJ). 	Complainant requested a hearing;
however, the AJ dismissed the request as untimely filed and remanded the matter
to the Agency for a final decision. The Agency issued a final decision, pursuant to
29 	C.F.R. 	§ 1614.110(b), 	finding 	that 	Complainant 	was 	not 	subjected 	to
discrimination as alleged. This appeal followed.
The record demonstrates that Complainant received the report of investigation and
notice of his right to request a hearing on February 14, 2023. A review of the
notice reveals that the Agency properly advised Complainant that he had 30
calendar days after receipt of the report of investigation to request a hearing.
Therefore, to be considered timely, Complainant’s hearing request had to be filed
no later than March 16, 2024. Complainant claimed that had not received the
notice of his rights issued on February 14, 2024, which had been sent to his work
email, 	while 	he 	was 	on 	leave. 	The 	Agency 	attempted 	to 	follow 	up 	with
Complainant on several occasions. Complainant did not file a request for a hearing
until February 16, 2024.
A complainant must act with due diligence in pursuit of his claim. Alice S. v. Soc.
Sec. Admin., EEOC Appeal No. 2019002475 (Sept. 22, 2020) (finding that a
complainant who stated she did not receive email inviting her to attend initial
conference failed to provide adequate justification for failing to comply with an
AJ's orders and that dismissal of hearing request was appropriate sanction).

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In Irene C. v. U.S. Postal Serv., EEOC Appeal Nos. 2021002236, 2021002238
(Sept. 8, 2022), the Commission found that due diligence includes “providing an
email address at which one is likely to be reached” and that the complainant should
have listed her work email address or checked the spam folder for her personal
email address regularly while her hearing request was pending. Here, under the
particular circumstances presented, we find that, in not providing an email at which
he was likely to be reached to the Agency and in not regularly checking his work
email, Complainant exhibited a lack of due diligence. Accordingly, the Agency
properly issued a final decision.
Turning to the merits of the instant complaint, we find that the Agency articulated
legitimate, nondiscriminatory reasons for its actions. 	Specifically, the Director,
Communications – Electronics Command, stated that Complainant worked as a
Switch Logistics Assistance Representative (LAR). At the time, there were four
Switch LARs at Fort Bragg and no Switch LARs at Fort Drum. As a result,
management decided to assign Complainant to Fort Drum as there was a greater
need there for a LAR. The Agency made every effort to assign employees to their
desired locations; however, program requirements may require assignments to
other locations other than previous locations. 	Complainant presented no evidence
demonstrating that the Agency’s reasons for its actions were pretextual.
Upon our thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we conclude that the preponderance of the
evidence 	supports 	the 	Agency’s 	decision 	finding 	that 	Complainant 	was 	not
subjected to discrimination as alleged.
Accordingly, for the reasons and the analysis stated herein, we AFFIRM the
Agency’s final 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

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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.
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).

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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
thetime 	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 23, 2026
Date