EEOC Appeal 2026001176

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Rufus G.,1
Complainant,
v.
Hung Cao,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 2026001176
Agency No. 26-3596A-00137
DECISION
Complainant 	filed 	a timely 	appeal 	with the Equal Employment 	Opportunity
Commission (EEOC or Commission) from the Agency's decision dated January 30,
2026, 	dismissing 	his 	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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Upon review, the
Commission finds that Complainant's complaint was improperly dismissed for
failure to state a claim.
At the time of events giving rise to this complaint, Complainant worked as a
Training 	Specialist 	at 	the 	Surface 	Combat 	Systems 	Training 	Command 	in
Dahlgren, VA.
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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On January 16, 2026, Complainant filed a formal complaint alleging that the
Agency 	subjected 	him 	to 	hostile 	workplace 	discrimination 	on 	the 	bases 	of
disability (mental) and reprisal for prior protected EEO activity. In its final
decision, the Agency framed Complainant’s claim as follows:
Were you, the Complainant, on 21 Nov 2025 discriminated against and
subjected to harassment (non-sexual) on the basis of Disability (mental),
and Reprisal (prior EEO activity) as a Training Specialist GS-11 1712 at
the Surface Combat Systems Training Command located in Dahlgren, VA
by 	named 	Management 	officials 	when 	you 	received 	an 	email 	which
instructed that you acknowledge receipt, sign and return your mid-point
appraisal.
The Agency dismissed Complainant’s complaint for failure to state a claim,
asserting 	that 	Complainant 	is 	not 	aggrieved, 	pursuant 	to 	29 	C.F.R. 	§
1614.107(a)(1). Specifically, the Agency noted that merely acknowledging receipt
of a performance review did not render any harm to Complainant.
However, in Complainant’s formal complaint, Complainant provides additional
information, mainly asserting that based on his claimed bases, he is challenging the
contents of his mid-year review. Further, in his appeal submission, Complainant
argues that the Agency mischaracterized his complaint and states:
My complaint alleged:
A 	performance 	appraisal 	delayed 	approximately 	7.5 	months 	beyond
required timelines; Two “1” ratings without prior counseling, progressive
discipline, or 	a 	Performance 	Improvement 	Plan; 	Subjective and 	non-
measurable 	critical 	elements 	inconsistent 	with 	OPM 	performance
management 	requirements; 	Failure 	to 	conduct 	or 	document 	a 	proper
progress 	review 	before 	assigning 	unsuccessful 	ratings; 	Denial 	of 	an
advocate during the assessment meeting while multiple management and
HR officials were present; Ongoing reprisal linked to protected EEO
activity; 	and 	A 	pattern 	of 	conduct 	contributing 	to 	a 	hostile 	work
environment.

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While 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), and that an Agency may properly dismiss such a matter
for alleging a proposal or preliminary step to taking a personnel action under 29
C.F.R. § 1614.107 (a)(5), an agency may not dismiss a complaint where the
Complainant is alleging that the proposal or preliminary step is retaliatory.
Here, we find the Agency improperly dismissed the complaint for failure to state a
claim. Complainant has repeatedly asserted in his submissions that he has been
subjected to retaliatory harassment by management, including how his mid-year
evaluation 	was 	conducted 	and 	what 	was 	contained 	therein, 	because 	of 	his
participation in an ongoing EEO complaint. Therefore, Complainant has stated a
viable claim of reprisal discrimination.
Accordingly, the Agency's final decision dismissing Complainant's complaint is
reversed. The complaint is hereby remanded to the Agency for further processing
in accordance with this decision and the Order below.
ORDER (E0224)
The Agency is ordered to process the remanded claims in accordance with 29
C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has
received the remanded claims within thirty (30) calendar days of the date this
decision was issued. 	The Agency shall issue to Complainant a copy of the
investigative file and also shall notify Complainant of the appropriate rights within
one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. 	If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision within
sixty (60) days of receipt of Complainant’s request.
As 	provided 	in 	the statement 	entitled 	“Implementation 	of the Commission's
Decision,” the Agency must send to the Compliance Officer: 1) a copy of the
Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s
notice that transmits the investigative file and notice of rights, and 3) either a copy
of the complainant’s request for a hearing, or a copy of the final agency decision
(“FAD”) if Complainant does not request a hearing.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 	29 	C.F.R. 	§ 	1614.405(c) 	and 	§ 	1614.502, 	compliance 	with 	the
Commission’s corrective action is mandatory. 	Within seven (7) calendar days of
the completion of each ordered corrective action, the Agency shall submit via the
Federal Sector EEO Portal (FedSEP) supporting documents in the digital format
required by the Commission, referencing the compliance docket number under
which compliance was being monitored. 	Once all compliance is complete, the
Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. 	See 29 C.F.R. § 1614.403(g). 	The Agency’s final
report must contain supporting documentation when previously not uploaded, and
the Agency must send a copy of all submissions to the Complainant and his/her
representative.
If the Agency does not comply with the Commission’s order, the Complainant may
petition the Commission for enforcement of the order. 	29 C.F.R. § 1614.503(a).
The Complainant also has the right to file a civil action to enforce compliance with
the Commission’s order prior to or following 	an 	administrative petition 	for
enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the Complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a
civil action on the underlying complaint is subject to the deadline stated in 42
U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). 	If the Complainant files a civil
action, the administrative processing of the complaint, including any petition
for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
Failure by an agency to either file a compliance report or implement any of the
orders set forth in this decision, without good cause shown, may result in the
referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. §
1614.503(f) for enforcement by that agency.
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:

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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).
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).

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0124)
This is a decision requiring the Agency to continue its administrative processing of
your complaint. 	However, if you wish to file a civil action, you have the right to
file such action in an appropriate United States District Court within ninety (90)
calendar days from the date that you receive this decision. In the alternative, you
may file a civil action after one hundred and eighty (180) calendar days of the
date you filed your complaint with the Agency, or filed your appeal with the
Commission. 	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. 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. 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 21, 2026
Date