EEOC Appeal 2020001841

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Brad M., 1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 2020001841
Hearing No.
Agency No. DON 18-42158-02112
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final action dated November 26, 2019, dismissing a formal
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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
The record reflects the following chronology of events. During the relevant time period,
Complainant was an Electrician Supervisor at the Agency’s Portsmouth, Virginia facility.
Complainant filed an EEO complaint on August 30, 2018.
In a Corrected Partial Dismissal letter dated March 15, 2019, the Agency determined that the
formal complaint was comprised of the following claims:
1. 	Was 	[Complainant] 	discriminated 	against 	based 	on 	race 	(African
American) and age by [a named management official] on April 17, 2018
when he received a negative performance evaluation.
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.

2020001841	2
2. 	Was [Complainant] discriminated against based on race, age, and reprisal
and subjected to a hostile work environment when he was not promoted to
Zone Manager, GS-2805-12.
The Agency accepted claim (1) for investigation. However, the Agency dismissed claim (2) on
procedural grounds. Report of Investigation (ROI) at 40-41. In a September 19, 2019 Order on
Initial Conference, the EEOC Administrative Judge (AJ) noted that Complainant does not contest
the dismissed claim. In addition, Complainant does not expressly contest the dismissed claim on
appeal. Thus, we decline to address the dismissed claim further herein.
Upon completion of the investigation, Complainant requested a hearing before an EEOC AJ.
On October 23, 2019, the EEOC AJ issued a decision dismissing 	Complainant’s complaint on
procedural grounds. 	To the extent that Complainant was alleging that he was subjected to
discrimination based on the Agency’s April 17, 2018 mid-term progress review, the AJ dismissed
this matter for failure to state a claim and for alleging a proposal to take a personnel action. The
AJ further found that the crux of Complainant’s claim were the comments in his 2017 (rather than
2018) performance evaluation. To the extent Complainant was challenging his 2017 evaluation,
the EEOC AJ dismissed this claim for untimely EEO Counselor contact. 	The AJ reasoned that
Complainant’s 2017 performance evaluation was dated October 17, 2017, for its final rating but
Complainant did not initiate EEO Counselor contact until May 4, 2018, outside of the applicable
time period.
On November 26, 2019, the Agency issued a final order implementing the AJ’s decision
dismissing Complainant’s complaint on procedural grounds.
Complainant does not submit a statement or brief on appeal.
ANALYSIS AND FINDINGS
We find that to the extent Complainant alleged discrimination based on his 2018 mid-year
evaluation, the Agency properly dismissed this matter for alleging a proposal to take a personnel
action. 	EEOC Regulation 29 C.F.R. § 1614.107 (a)(5) provides that an agency shall dismiss a
complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking
a personnel action, is discriminatory. The Commission has held that a periodic progress review
does not create a personal harm. See Jackson v. Central Intelligence Agency, EEOC Request No.
05931177 (June 24, 1994).
In the instant matter, the EEO Counselor’s Report lists April 2018 as the date of the alleged
discriminatory incident. Report of Investigation (ROI) at 17-18. The record reflects that a progress
review was issued to Complainant on April 17, 2018 and that Complainant refused to sign it. ROI
at 116. Because this claim involved an alleged discriminatory progress review, we find that the
Agency properly dismissed this matter for alleging a proposal to take a personnel action.

2020001841	3
We concur with the AJ that the crux of Complainant’s claim is his 2017 (rather than 2018)
performance evaluation. The record contains a declaration under penalty from Complainant. ROI
at 56. 	Therein, Complainant expressly sets forth the negative comments that he received in an
evaluation which he alleges encompasses his claim. 	ROI at 58. 	The record reflects that these
comments were made in Complainant’s 2017 performance evaluation. ROI at 117. Complainant
also lists in his declaration under penalty a named management official (Q1) who he alleges is the
responsible management official. ROI at 58. The record reflects that Q1 was the rating official in
Complainant’s 2017 performance evaluation and not his 2018 evaluation. ROI at 117, 64.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. 	The Commission has adopted a
"reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when
the forty-five (45) day limitation period is triggered. 	See Howard v. Dep’t of the Navy, EEOC
Request No. 05970852 (Feb. 11, 1999). 	Thus, the time limitation is not triggered until a
complainant reasonably suspects discrimination, but before all the facts that support a charge of
discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when
the individual shows that he was not notified of the time limits and was not otherwise aware of
them, that he did not know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence he was prevented by circumstances beyond
his control from contacting the Counselor within the time limits, or for other reasons considered
sufficient by the agency or the Commission.
We find that the AJ properly dismissed Complainant’s claim regarding his 2017 performance
evaluation for untimely EEO Counselor contact. 	The record contains a copy of Complainant’s
2017 performance evaluation reflecting that he received progress reviews on March 14, 2017, and
July 7, 2017, and a final evaluation on October 17, 2017. ROI at 117. 	The record reflects that
Complainant initiated EEO contact on May 4, 2018, more than 45 days from when he received his
final rating for his 2017 performance evaluation. 	Complainant does not provide sufficient
justification for extending the applicable time limit.
Accordingly, we AFFIRM the Agency’s final action implementing the EEOC AJ’s decision
dismissing Complainant’s complaint.

2020001841	4
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 	In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. 	Any
supporting documentation must be submitted with your 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(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
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 his or her 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.

2020001841	5
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:
______________________________ 	Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
September 3, 2020
Date