EEOC Appeal 2026002801

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Brenton O.,1
Complainant,
v.
Howard Lutnick,
Secretary,
Department of Commerce,
Agency.
Appeal No. 2026002801
Hearing No. 531-2025-00038X
Agency No. 57-2024-00068X
DECISION
On June 4, 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 May 19, 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, 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 order.
At the time of events giving rise to this complaint, Complainant worked as an
Accountant, ZA-0510-III, at the Agency’s Financial Statements Group, Finance
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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Division, National Institute of Standard and Technology facility in Gaithersburg,
Maryland. On January 23, 2026, Complainant filed an EEO complaint alleging he
was subjected to a hostile work environment on the bases of race (African
American), national origin (Togo), color (black), and age (over 40) when:
1. Complainant was generally alienated by members of his unit.
2. Complainant was denied training and advancement opportunities.
3. On September 18, 2023, Complainant became aware of the utilization of
an 	improper 	accounting 	procedure 	that 	would 	adversely 	affect 	his
functioning. When he brought this matter to the attention of his supervisors
it was ignored, with insufficient resolution.
4. In October 2023, Complainant’s time sheet was improperly reduced.
5. On November 7, 2023, Complainant erroneously received an annual
performance appraisal giving him a summary rating of “Significant
Contributor” and a 1.0% performance pay increase; however, on previous
years during his 16½-year tenure with the Department of Commerce, his
overall ratings had either been “Meritorious Contributor” or “Superior
Contributor”, resulting in performance pay increases between 2.29% to
3.3%.
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 before an AJ.
The Agency submitted a motion for summary judgment. In that motion, the Agency
argued that claims 1 – 3 should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(2),
for untimely EEO Counselor contact. As to claims 4 and 5, the Agency argued that
there were no genuine issues of material fact in dispute and concluded that
Complainant 	had 	not 	been 	discriminated 	against. 	Complainant 	opposed 	the
Agency’s motion for summary judgment. On April 30, 2026, the AJ granted the
Agency motion for summary judgment in its entirety and issued a decision without
a hearing. 	The Agency subsequently issued a final order fully implementing the
AJ’s decision. The instant appeal followed.

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Claims 1 – 3
EEOC 	Regulation 	29 	C.F.R. 	§1614.105(a)(1) 	requires 	that 	complaints 	of
discrimination be brought to the attention of the EEO counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within 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 45-day limitation period is triggered. See Howard
v. Department of the Navy, EEOC Request No. 05970852 (February 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.
Regarding claim 1, Complainant stated that he was mocked and humiliated by his
coworkers during meetings that occurred on May 2014, July 2016, October 2018,
December 2022, and April 2023. As to claim 2, Complainant claimed that he was
denied 	training 	prior 	to 	December 	2021, 	and 	he 	was 	denied 	advancement
opportunities in 2022. With respect to claim 3, Complainant claimed that this event
occurred in September 2023. Complainant did not contact an EEO Counselor until
December 5, 2023, which was more than 45 days after the effective date of the
actions in question. As such, Complainant’s initial contact with the EEO Counselor
was untimely. Complainant has not presented any reason to equitably toll the time
limit for contacting an EEO Counselor. Therefore, we find that the Agency’s final
order correctly dismissed claims 1 through 3.
Claims 4 and 5
The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for
its actions raised in claims 4 and 5. Regarding claim 4, Complainant explained that
this incident occurred during a fiscal year-end closing at a time when most of the
employees were working overtime and on weekends. He stated that this particular
year the deadline fell on a Federal holiday and Supervisory Accountant (SA) gave
the necessary employees (including himself) permission to work the holiday and
even work overtime on the holiday if necessary and they did. Complainant said that
he processed his timecard accordingly and recorded said work as holiday with
approximately three hours of overtime pay, then submitted the timecard for approval
and it was approved.

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Complainant reported that a few days later he received an email from SA, letting
him know his time sheet was revised to exclude the overtime because working
holiday time and overtime at the same time were not allowed.
SA stated their fiscal year runs from October 1 through September 30, so October
was a very busy time in their office. SA stated that, on the Friday before Columbus
Day, the Agency sent an email to staff, offering them a two-hour early release, which
was logged as administrative pay on a timesheet. SA explained that many of her staff
members were already on overtime pay by Friday of this week and they needed to
continue working due to it being the busy season, so she instructed them to log the
administrative pay and their regular time on their timecards so that they could still
get the compensation. SA stated that she later got an email from the timekeeper,
stating an employee cannot be paid overtime pay and administrative pay at the same
time. SA said that, after she spoke with the timekeeper, she reached out to the staff
to let them know what happened and why. SA stated that this incident was not unique
to Complainant. SA said that there were several affected employees, and everyone
was treated the same way. SA indicated the resolution to this situation was that the
employees were paid for their overtime hours, but not for the administrative pay.
As to claim 5, Complainant stated that his rating did not take into consideration the
communication issues with his Team Lead. Chief stated that, as Division Chief, he
was the second approval (pay pool) of Complainant’s performance appraisal. He
added 	that 	SA 	was 	Complainant’s 	rater. 	Chief said 	that 	the 	categories 	of
Complainant’s contributor rating were comprised mostly of “Fully Successful.”
Chief stated Complainant came to him and SA to discuss the rating. He said that he
asked Complainant during the meeting what specific accomplishments were missed
that should be considered in the rating, but Complainant did not offer any. Chief
reported that he would have considered any further accomplishments Complainant
named to potentially raise the rating. Chief denied trying to get Complainant to leave,
quit, or retire. Complainant’s fiscal year 2023 performance appraisal shows that
Complainant received an overall performance rating of Significant Contributor.
Complainant has not shown that any alleged discrimination motivated the appraisal
he received.
As to the claim of harassment, the AJ found that Complainant had not shown that
the incidents he complained of in his complaint were sufficiently severe or pervasive
to alter the conditions of Complainant’s employment.

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Furthermore, the AJ found that Complainant failed to show that any of the harassing
incidents were motivated by the alleged bases of discrimination. We agree with the
AJ’s analysis and findings of no discrimination.
Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision
dismissing claims 1 through 3 and finding no discrimination as to claims 4 and 5.
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.

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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. 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 __________ 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 17, 2026
Date