EEOC Appeal 2026000651

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Marx H.,1
Complainant,
v.
Sean Duffy,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 2026000651
Agency No. 2025-00178-FAA-02
DECISION
Complainant 	filed 	a timely 	appeal 	with the Equal Employment 	Opportunity
Commission (EEOC or Commission) from the Agency's decision dated December
24, 2025, dismissing her 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., 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. 	Upon
review, the Commission finds that Complainant's complaint was properly dismissed
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.
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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ISSUE PRESENTED
The issue is whether the Agency properly issued a decision procedurally dismissing
Complainant’s complaint for untimely EEO contact for one claim; and for electing
to internally grieve her other claim in accordance with the Collective Bargaining
Agreement (CBA).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Airway
Transportation System Specialist (ATSS) (FV-2101-I) at the Agency’s East Wide
Area Augmentation System (WAAS) Operations Team in Warrenton, Virginia.
Complainant initiated EEO counseling on March 4, 2025. On March 26, 2025,
Complainant filed a formal complaint alleging that the Agency subjected her to
discrimination and harassment on the bases of race (African-American), sex
(female), color (Black), disability (mental and physical), age (53), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act of 1967, and Section 501 of the
Rehabilitation Act of 1973 when:
1. Since in or around April 2024 and continuing, management prevented
Complainant from working holidays or receiving holiday pay; and
2. On or about June 25, 2025, management denied Complainant’s request for
reasonable accommodation of telework.
The Agency dismissed Claim 1 for untimely EEO contact pursuant to 29 C.F.R. §
1614.105(a)(1). The record also reflects that WAAS East employees were formally
notified on September 3, 2024, that they would transition from PASS (undefined
acronym) 	Article 	31 	(Watch 	Schedule) 	to 	PASS 	Article 	32 	(Administrative
Schedule) effective September 8, 2024. The notification explicitly advised that
administrative employees “will not work holidays.” Report of Investigation (ROI)
at 257-60.
Management’s statements confirm that this schedule change was implemented as
part of a negotiated configuration change to consolidate WAAS operations and
improve efficiency. ROI at 169-70 and 174-76. The decision applied to all WAAS
East employees.

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Complainant acknowledged that WAAS East employees were no longer eligible to
work holidays once placed on the administrative schedule. ROI at 112.
Despite receiving notice in September 2024, Complainant did not initiate EEO
counselor contact until March 4, 2025, approximately six months later and well
beyond the 45-day period required by 29 C.F.R. § 1614.105(a)(1). The timeliness
requirement is triggered when a complainant knew or reasonably should have known
of the matter alleged to be discriminatory.
The Agency also dismissed Claim 2 because before Complainant pursued the alleged
denial of her requested reasonable accommodation in the form of telework and the
reconsideration denial through the EEO process, the PASS (undefined acronym)
union filed a Step 1 grievance on Complainant’s behalf on March 3, 2025, relating
to telework. The Step 1 grievance sought remedies that expressly included telework
relief and reasonable accommodation relief, including restoring telework, ceasing
termination 	of 	telework 	arrangements, 	following 	CBA 	provisions 	regarding
telework, making Complainant whole, and approving telework consistent with the
reasonable accommodation request.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, contests the Agency’s procedural
dismissal of her claims. She also discusses the substantive aspects of reasonable
accommodation requirements, asking that her claims be addressed on the merits.
STANDARD OF REVIEW
The Agency’s decision to dismiss a complaint is subject to de novo review by the
Commission, which requires the Commission to examine the record without regard
to the factual and legal determinations of the previous decision maker and issue its
decision 	based 	on 	the Commission’s 	own 	assessment 	of the record 	and 	its
interpretation of the law. 29 C.F.R. § 1614.405(a). The Commission should construe
the complaint in the light most favorable to the complainant and take the complaint’s
allegations as true. 	See Cobb v. Department of the Treasury, EEOC Request No.
05970077 (March 13, 1997). Thus, all reasonable inferences that may be drawn from
the complaint’s allegations must be made in favor of the complainant.

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ANALYSIS
As to Claim 1, Complainant indicated that alleged discriminatory incidents began
occurring on April 1, 2024. However, the record discloses that the alleged incident
occurred on September 3, 2024, when employees received notification about
schedule changes. Complainant did not initiate contact with an EEO Counselor until
March 4, 2025, which is beyond the forty-five (45) day limitation period. On appeal,
Complainant has presented no persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO Counselor contact.
Notably, Complainant had extensive prior EEO activity, having filed about five
separate formal EEO complaints between 2016 and 2025. Therefore, she failed to
demonstrate that she was unaware of the regulatory filing deadlines. ROI at 2 and
108.
As to Claim 2, where an employee is covered by a collective bargaining agreement
that permits allegations of discrimination to be raised in a negotiated grievance
procedure, the employee must elect to raise the matter either under Part 1614 or
under the negotiated grievance procedure, but not both. 29 C.F.R. § 1614.301(a).
Once the employee files a grievance on the matter, the agency shall dismiss any
subsequent EEO complaint on the same matter. 29 C.F.R. § 1614.107(a)(4). The
election bar applies regardless of whether discrimination is expressly alleged in the
grievance and turns on whether the grievance and the EEO complaint concern the
same underlying matter.
Once Complainant pursued the alleged incident in Claim 2 through the negotiated
grievance procedure, the Agency was required to dismiss the subsequent EEO
complaint as it arose from the same telework matter.2
2 The record includes Exhibit G-12: CBA Article 31, Watch Schedules and
Assignments, Alternative Work Schedules, Holidays, and Telework, dated January
14, 2025. The article reflects the Agency’s assertion that Complainant was able to
file a complaint regarding her discrimination issue (her reasonable accommodation
request) under the Agency’s internal grievance procedure. ROI at 663-66.

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CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is
affirmed.
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. 	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).

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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. 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.

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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 22, 2026
Date