EEOC Appeal 2024001746

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Fletcher E.,1
Complainant,
v.
Markwayne Mullin,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 2024001746
Hearing No. 550-2023-00161X
Agency No. HS-ICE-02069-2022
DECISION
On January 10, 2024, 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 December 19, 2023, final order concerning his
equal 	employment 	opportunity 	(EEO) 	complaint 	alleging 	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 order.
At the time of events giving rise to this complaint, Complainant was a GL-1801-7
Deportation Officer (Trainee) who was assigned to the Agency’s San Francisco,
California Field Office and was enrolled in the Basic Immigration Enforcement
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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Training Program (BIETP) at the Federal Law Enforcement Training Center
(FLETC) in Glynco, Georgia.
On June 28, 2022, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the basis of disability (perceived) when:
1. 	On May 12, 2022, Complainant’s Acting Unit Chief:
a. 	accused 	him 	of 	making 	false 	statements, 	failing 	to 	follow
directives and/or policies, demonstrating a lack of integrity, and
knowingly endangering others; and
b. denied him the opportunity to explain that the accusations were the
result of misinformation he had received from the FLETC medical
unit.
2. 	On May 13, 2022, Complainant:
a. 	resigned in lieu of termination following dismissal from FLETC;
and
b. was informed that he was ineligible to attend a future Enforcement
Removal Operations (ERO) Basic Training Program, leading to his
being ineligible for employment as an ERO law enforcement
officer.
Complainant identified his perceived disability as Covid-19. Complainant stated
that he did not experience any limitations in his personal life or any work-related
restrictions as a result of Covid-19. Report of Investigation (ROI) at 84.
On May 9, 2022, Complainant reported to the FLETC Health Unit for symptoms
including a hoarse voice, and a Health Unit Nurse placed him in quarantine in an
isolation dorm room based on his symptoms. The record contains a FLETC Health
Unit Isolation Information handout, which stated that FLETC personnel would
contact Complainant with the results of his Covid-19 test and that Complainant
would need to report to the Health Unit for assessment in order to be cleared to
return to training. The Health Unit informed Complainant’s instructors that he was
restricted from training and had been placed in isolation for five days.
According to Complainant, on the morning May 10, 2022, he called the Health
Unit to ask about his test results and was told they were negative. Complainant was
unable to identify the person from the Health Unit he spoke with, but he provided
phone records, which show a 25-second outgoing call at 7 a.m. on May 10, 2022.

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Complainant subsequently left isolation and reported to training. An instructor
notified the Course Developer that Complainant reported to class despite being
placed 	in 	isolation 	the 	day 	earlier. 	According 	to 	the 	Course 	Developer,
Complainant stated that he had been verbally cleared to return to training, but the
Health Unit stated that Complainant had not been cleared to return to training and
should return to his isolation room. At 12:57 p.m. on May 10, 2022, an outside
laboratory reported that Complainant’s May 9, 2022, Covid-19 test was positive.
ROI at 106.
Complainant provided management with a memorandum, which stated that he
participated in training on May 10, 2022, after the Health Unit informed him that
his test results were negative. ROI at 337. Complainant stated, “I have learned
from this experience to always request physical documentation as proof, so that
such miscommunication will not occur.” Id. On May 10, 2022, the Course
Developer 	issued 	Complainant 	a 	Student 	Conduct 	Reporting 	Form 	for
unacceptable conduct. The Course Developer stated that Complainant failed to
provide honest and complete information when he told staff that he had been
medically cleared to leave isolation, displaying a lack of candor. According to the
Course Developer, Complainant willingly withheld or concealed information with
the potential to compromise the health and welfare of others.
On May 11, 2022, the Health Unit called Complainant to monitor his symptoms.
Based on Complainant’s reported symptoms, he was directed to report to the
Health Unit on May 12, 2022, for possible clearance to return to training. On May
12, 2022, the Health Unit cleared Complainant to resume training. The Course
Developer directed Complainant to remain in his dorm pending further instruction.
On May 12, 2022, the Acting Unit Chief issued Complainant a memorandum
notifying him that he was being removed from the BIETP for unsatisfactory
conduct. The memo noted that, on February 16, 2022, and March 16, 2022, he was
verbally counseled for failure to follow instructions and violations of policy and
procedure and that, on March 24, 2022, and April 14, 2022, he received student
conduct 	reports 	for 	failing 	to 	follow 	instructions 	and 	violating 	policy 	and
procedure. The Acting Unit Chief stated that, on May 10, 2022, Complainant
violated policy and procedure, failed to follow instruction, demonstrated a lack of
integrity and candor, and put the health and safety of others at risk. According to
the Acting Unit Chief, a student who failed to meet the conduct standards of the
BIETP was ineligible for employment as an ERO law enforcement officer.

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The memorandum concluded by stating that, unless other arrangements were
made, Complainant was directed to return to his official duty station on May 16,
2022. Complainant averred that he was not provided the opportunity to explain
himself, and he flew back to San Francisco on the evening of May 12, 2022. On
May 13, 2022, Complainant reported to the San Francisco Field Office.
On May 13, 2022, the Acting Deputy Field Office Director informed Complainant
that the Acting Field Office Director had decided not to consider him for a lateral
reassignment to a non-law enforcement position and that he could choose to
voluntarily resign by the close of business on May 17, 2022. According to the
Acting Deputy Field Office Director, if Complainant chose not to resign, the ERO
Training Division Deputy Assistant Director would notify him of the Agency’s
intent regarding his termination from the BIETP due to unsatisfactory performance
or conduct.
On May 13, 2022, Complainant submitted a memorandum to the Acting Field
Office Director, tendering his resignation. Complainant stated that he resigned
because he believed a termination for misconduct would likely disqualify him from
future employment with a law enforcement agency.
The 	Agency 	notified 	Complainant 	that 	it 	had 	not 	timely 	completed 	the
investigation within the time period set forth in 29 C.F.R. § 1614.108 and provided
notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing before an AJ. The EEOC Hearings Unit
ordered the Agency to submit a copy of the investigative file by March 3, 2023.
On March 3, 2023, the Hearings Unit issued a Notice of Intent to Sanction,
ordering the Agency to upload the complaint file and a written response justifying
its failure to abide by the regulations. On March 3, 2023, the Deputy Chief of the
Agency’s Complaints and Resolution Division provided an affidavit explaining the
circumstances 	that 	led 	to 	the 	delay 	in 	completing 	the 	investigation 	of
Complainant’s complaint. On July 17, 2023, the Agency provided a completed
copy of the report of investigation.
On September 6, 2023, the AJ issued a Notice of Intent to Issue Summary
Judgment. 	The 	AJ 	stated 	that 	the 	record 	contained 	insufficient 	evidence 	to
establish that Complainant was “regarded as” disabled under the Rehabilitation
Act.

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While Agency officials stated that they were aware that Complainant tested
positive for Covid-19 and was subject to quarantine, the AJ observed that none of
the officials stated that they perceived Complainant as having a physical or mental
impairment that substantially limited a major life activity and that the record
corroborative evidence for Complainant’s assertion that the Agency regarded him
as disabled. Because disability was the sole basis alleged, the AJ found that the
complaint was subject to dismissal.
The Notice of Intent informed the parties that, unless a party demonstrated the
existence of a genuine issue of material fact or credibility, no hearing would be
held. Both parties filed responses to the Notice of Intent. The AJ subsequently
issued a decision by summary judgment in favor of the Agency, finding no
discrimination.
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.
On appeal, Complainant argues, among other things, that the AJ improperly relied
on the Agency’s untimely and incomplete investigation in issuing a decision by
summary judgment. According to Complainant, this inappropriately shifted the
burden of proof from the Agency to Complainant. We will address Complainant’s
arguments below.
The Agency argues, in pertinent part, that its final order should be affirmed.
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).

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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). Accordingly,
such determinations by the AJ are reviewed based on an abuse of discretion
standard. We find that Complainant has not shown that the AJ abused their
discretion in declining to sanction the Agency for its untimely completion of the
investigation.2
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.
2 To the extent that Complainant objects to the Agency’s argument that he did not
establish that he was prejudiced by the delay in completing the investigation, we
note that the prejudicial effect of noncompliance on the opposing party is one of
the factors pertinent to determining whether a sanction is warranted or tailoring a
sanction. See Chere S., EEOC Appeal No. 0720180012.

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On appeal, Complainant challenges the completeness of the report of investigation
but does not specifically identify what is missing from the record or explain how
this information would establish a genuine issue of material fact. Upon review, we
find that the investigation was adequate and that the record is sufficiently thorough
for the finder of fact to address the ultimate issue of whether discrimination
occurred. Although Complainant argues that the AJ improperly shifted the burden
from the Agency to him, we note that Complainant does have the burden of proof
at this stage to identify a genuine issue of material fact or credibility.
The AJ found that Complainant could not establish that he was “regarded as”
disabled. 	We 	will 	assume, 	for 	the 	purposes 	of 	summary 	judgment, 	that
Complainant was regarded as disabled within the meaning of the Rehabilitation
Act based on his positive Covid-19 test and that he could establish a prima facie
case of discrimination. The Agency provided legitimate, nondiscriminatory reasons
for removing him from the BIETP, so the burden shifts to Complainant to establish
a genuine issue of material fact concerning pretext.
Although Complainant asserts that he never received the FLETC Health Unit
Isolation Information handout and therefore did not fail to follow any directives or
policies, it is undisputed that Complainant left quarantine and returned to training
without clearance. Complainant stated that, on the morning of May 10, 2022, the
Health Unit informed him that his test results were negative, but the record shows
that the lab received Complainant’s Covid-19 test at 10:27 a.m. on May 10, 2022,
and did not release the results of his Covid-19 test until 12:57 p.m. on May 10,
2022. ROI at 106. It is also undisputed that Complainant had been counseled on
February 	26, 	2022, 	and 	March 	16, 	2022, 	and 	was 	issued 	Student 	Conduct
Reporting Forms on March 24, 2022, and April 14, 2022, for unacceptable
conduct. ROI at 230-33. On March 16, 2022, Complainant was verbally counseled
for not digitally submitting a medical clearance form to his class coordinator as
instructed. ROI at 231. Even viewing the evidence in the light most favorable to
Complainant and drawing all justifiable inferences, we find that a reasonable finder
of fact could not conclude that Complainant established pretext for discrimination
based on perceived disability or that he established that he was subjected to
harassment based on perceived disability.
Because Complainant cannot show that the Agency’s actions leading up to his
resignation were discriminatory, he cannot establish that he was constructively
discharged as alleged.

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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 	referenced 	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 	order 	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.
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.

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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.
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.

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