EEOC Appeal 2026002171

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Felipa A.,1
Complainant,
v.
Markwayne Mullin,
Secretary,
Department of Homeland Security
(Cybersecurity and Infrastructure Security Agency),
Agency.
Appeal No. 2026002171
Hearing No. 550-2025-00208X
Agency No. HS-CISA-01096-2024
DECISION
On April 24, 2026, 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 final action concerning her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final action.
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.

2026002171	2
At the time of events giving rise to this complaint, Complainant worked remotely
as a GS-1101-13 Infrastructure Analyst in the Agency’s Stakeholder Engagement
Division (SED), Chief of Staff’s Office, which was based in Arlington, Virginia.
Effective April 21, 2024, Complainant was assigned to a new position description
(PD) as a GS-0343-13 Management Analyst.
On May 28, 2024, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the basis of reprisal for prior protected EEO activity
under Title VII, the Rehabilitation Act, and the ADEA when, on March 6, 2024,
the 	Chief 	for 	Budget 	Acquisition 	and 	Oversight 	(Supervisor-1) 	notified
Complainant that she was not eligible for the Cyber Retention Incentive.
Complainant previously engaged in protected EEO activity, including by filing a
prior EEO complaint.
Complainant had received two Letters of Reprimand, including on April 28, 2022.2
Prior to receiving the Letters of Reprimand, Complainant received cyber pay based
on her PD. In order to receive cyber pay, the employee needed to have 30%
cybersecurity duties in their job functions. An employee was ineligible for the
cyber pay retention incentive program if they had been reprimanded in the past 12
months. Under the Agency’s policy, Complainant was expected to be eligible to
reapply for the program on or about April 29, 2023.
In mid-2022, SED supervisors were directed by the Office of the Chief Human
Capital Officer (OCHCO) to determine if employees’ PDs were up to date. The
SED Chief of Staff stated that OCHCO required that all PDs be less than five years
old and that 25 employees in the Chief of Staff’s Office had their PDs updated.
Supervisor-1 	determined 	that 	five 	of 	the 	seven 	employees 	she 	supervised,
including 	Complainant, 	needed 	an 	updated 	PD. 	Complainant’s 	PD, 	for 	an
Infrastructure 	Analyst 	position 	in 	the 	National 	Protection 	and 	Programs
Directorate, Office of Infrastructure Protection, was from 2014. Between 2014 and
2022, 	Complainant 	had 	undergone 	a 	management-directed 	reassignment, 	and
Supervisor-1 determined that the PD did not reflect her current duties.
2 The Letters of Reprimand were part of a prior EEO complaint, which is the
subject of Appeal No. 2024000534.

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On March 30, 2023, Supervisor-1 informed Complainant that she was updating her
PD but that the process would take some time. Supervisor-1 also stated that
Complainant would not be able to reapply for the cyber pay program until her PD
was updated. Most employees whose PDs were being updated were allowed to
keep their existing cyber pay during the review process. In order to receive cyber
pay, Complainant’s new PD would have to meet the requirements of the program.
On March 6, 2024, Supervisor-1 informed Complainant that she determined that,
based on the duties and work requirements of her position, she did not qualify for
cyber pay. Complainant’s new PD was finalized on April 21, 2024.
At the conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation and notice of her right to request a hearing
before an EEOC Administrative Judge (AJ). Complainant timely requested a
hearing before an AJ.
The 	Agency 	submitted 	a 	motion 	for 	a 	decision 	without 	a 	hearing, 	which
Complainant opposed. The AJ granted the Agency’s motion and issued a decision
by summary judgment in favor of the Agency, finding no discrimination.
The AJ found that the Agency articulated a legitimate, nondiscriminatory reason
for its 	action, which 	was 	that 	Complainant’s duties were not 	at 	least 	30%
cybersecurity related. The AJ determined that there was nothing in the record to
indicate that the Agency’s reason was false or that it was otherwise a pretext for
discrimination or retaliation. With respect to Complainant’s argument that she
should have received cyber pay while her position description was being updated,
the AJ found that she was ineligible for cyber pay. Although Complainant averred
that 	the 	Agency’s 	delay 	was 	evidence 	of 	retaliation, 	the 	AJ 	found 	that
Complainant’s belief, no matter how sincere, was insufficient to establish pretext.
The record does not contain a final order. When the Agency failed to issue a final
order within forty days of receipt of the AJ’s decision, the AJ’s decision finding
that Complainant failed to prove that the Agency subjected her to discrimination as
alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The
instant appeal followed.
On appeal, Complainant argues that the AJ did not rule on her motion to compel
discovery before issuing summary judgment. According to Complainant, she was
treated 	differently 	than 	other 	SED 	employees 	with 	respect 	to 	cyber 	pay.

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Complainant contends that her new PD did not match her skills and abilities. We
will address Complainant’s arguments below.
The Agency did not submit a statement or brief on appeal.
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).
Complainant contends that the AJ failed to address her motion to compel. On
December 5, 2025, Complainant emailed the AJ, stating that she would like to file
a motion to compel. On December 11, 2025, the AJ provided Complainant with
instructions for filing a motion to compel, noting that Complainant needed to make
a good faith effort to resolve her discovery disputes with the other party before
filing the motion and describe those efforts in the motion. On December 15, 2025,
Complainant sent an email to the AJ, which she requested be considered a motion
to compel the Agency to respond to three discovery questions. In her email,
Complainant stated that she made a good faith effort to get her questions answered
but that Agency Counsel did not adequately answer these questions. Complainant
reiterated some of her arguments from the motion to compel in her response to the
Agency’s motion for summary judgment.
Administrative 	Judges 	have 	full 	responsibility 	for 	the 	adjudication 	of 	the
complaint, including overseeing the development of the record, and have broad
discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). This gives an
AJ wide latitude in directing the terms, conduct, or course of EEO administrative
hearings. EEO MD-110 at Chapter 7, § III.D; Chere S. v. Gen. Serv. Admin.,
EEOC Appeal No. 0720180012 (Nov. 30, 2018) (citations omitted).

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Accordingly, such determinations by the AJ are reviewed based on an abuse of
discretion standard. In not ruling on Complainant’s motion to compel prior to
issuing a decision without a hearing, the AJ essentially denied Complainant’s
motion to compel. We find that it was not an abuse of discretion for the AJ to not
rule on Complainant’s motion to compel.
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.
We find that Complainant established a prima facie case of discrimination based
on reprisal, as she was engaged in ongoing protected EEO activity when she was
told she could not reapply for cyber pay in 2023 and when she was found ineligible
for cyber pay in 2024. The Agency provided legitimate, nondiscriminatory reasons
for its actions. Complainant was not receiving cyber pay in 2023 based on her
disciplinary history. Because her PD was being updated when she would have
otherwise been able to reapply for cyber pay, she was required to wait until her
new PD was finalized to determine if her position was eligible for cyber pay.
Because Complainant’s new PD did not reflect that she performed 30% or more
cyber duties, she was ineligible for cyber pay.

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Complainant argues that her new PD did not accurately reflect her skills and
abilities. However, she does not dispute that her 2014 PD was written for a
position in a different directorate and predated her reassignment to the SED Chief
of Staff’s Office. Complainant has not identified a genuine issue of material fact
that would show that the review process, which affected four of Supervisor-1’s
other subordinates and 25 employees in the Chief of Staff’s Office, was undertaken
based on Complainant’s engagement in protected activity. To the extent that
Complainant contends that she was the only SED employee who was not provided
cyber pay during the review process, she has not identified a similarly situated
comparator who was temporarily ineligible for cyber pay due to discipline yet was
permitted to reapply for cyber pay while their PD was in the process of being
updated. Even viewing the evidence in the light most favorable to Complainant and
drawing all justifiable inferences, a reasonable finder of fact could not conclude
that she established that the Agency’s legitimate, nondiscriminatory explanations
were a pretext for reprisal.
Having thoroughly reviewed the record, and construing any inferences raised by
the undisputed facts in favor of Complainant, we find that a reasonable factfinder
could not find in Complainant’s favor. Upon careful review of the AJ’s decision
and the evidence of record, as well as the parties’ arguments on appeal, including
those 	not 	specifically 	addressed 	herein, 	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.
Accordingly, we AFFIRM the Agency’s final action 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.

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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 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 21, 2026
Date