2026002628•EEOC Appeal 2026002628
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Eric S.,1 Complainant, v. Markwayne Mullin, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2026002628 Hearing No. 451-2025-00017X Agency No. HS-ICE-00519-2024 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 May 11, 2026, final order concerning his equal employment opportunity (EEO) complaint of 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. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. At the time of events giving rise to this complaint, Complainant worked as a Probationary Supervisory Detention and Deportation Officer at the Agency’s Enforcement and Removal Operations in Harlingen, Texas. 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 2026002628 On January 29, 2024, Complainant filed a complaint alleging that the Agency discriminated against him based on race (African American) and color (black) when he was demoted during his probationary period from a Supervisory Detention and Deportation Officer to a Deportation Officer. 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. On February 11, 2026, the Agency motioned for summary judgment. Over Complainant’s objections, 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 accurately stated the facts in its motion for summary judgment, and that Complainant failed to identify similarly situated employees outside of his protected classes who were treated more favorably than himself. The AJ found no evidence, beyond Complainant’s own speculation, that the Agency acted with discriminatory motives. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. We find that the record is adequately developed. Upon review of the record, we find that the Agency stated legitimate, nondiscriminatory reasons for demoting Complainant from a Supervisory Detention and Deportation Officer to a Deportation Officer. During his probationary period, Complainant refused to follow direct orders from his supervisor, the Assistant Field Office Director (AFOD), to cancel the simultaneous leave requests of five subordinates due to operational needs. Complainant also failed to communicate with the AFOD regarding this decision, leading to all five subordinates taking leave at the same time and management discovering this on the day the leave began. While Complainant argued that he failed to cancel leave requests because he believed it to be an unlawful order, this did not explain his failure to communicate this with the AFOD. Complainant’s disagreement with the AFOD’s instructions is not evidence of discrimination.
3 2026002628 Complainant argues that Coworkers 1 and 2 were treated more favorably than him. We find that Complainant is not similarly situated to Coworker 1. The conduct for which Coworker 1 was issued a letter of counseling was an unintentional failure to ensure his subordinate followed procedures. In contrast, Complainant’s conduct was an intentional refusal to follow orders and failure to communicate his intention to do so with the AFOD. Likewise, we find no evidence that Coworker 2 refused to follow direct instructions or communicate with leadership as Complainant. Therefore, Complainant has not shown that he was treated less favorably than similarly situated individuals outside of his protected classes. We find no evidence in the record from which to draw an inference that the Agency acted with discriminatory motives. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision finding no discrimination. 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).
4 2026002628 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). 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.
5 2026002628 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 23, 2026 Date
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