EEOC Appeal 2026002591

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Neil M.,1
Complainant,
v.
Hung Cao,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 2026002591
Agency No. DON-26-60478-00431
DECISION
Complainant 	filed 	a timely 	appeal 	with the Equal Employment 	Opportunity
Commission (EEOC or Commission) from the Agency's decision dated April 22,
2026, 	dismissing 	his 	complaint 	of 	unlawful 	employment 	discrimination 	in
violation of 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.
At the time of events giving rise to this complaint, Complainant worked as a
Railroad Transportation Supervisor at the Agency's facility in Colts Neck, NJ. On
March 26, 2026, Complainant filed a formal complaint alleging that the Agency
subjected him to discrimination on the bases of age and reprisal for prior protected
EEO activity when:
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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1a) Between July 2021 through August 2021, he was singled out with an
unusual interview question by the Railroad OPS Manager, who was the subject
of an open EEO complaint;
b) Sometime in 2021, he was not allowed to make a statement in his defense
during an investigation, while others could, and Officials who were the
subjects of his EEO complaints (Railroad Operations Manager and Railroad
OPS Manager) led the investigation and issued discipline;
c) Sometime in 2021, the Railroad OPS Manager denied him a group award
while an EEO complaint was pending;
d) On August 19, 2022, the Railroad Operations Manager listened at the door
during a private meeting and also held meetings in inappropriate locations;
e) Between September 2019 through October 23, 2022, his Veterans preference
was removed in September 2019 and not restored until October 23, 2022,
costing him benefits for over three years;
f) Between March 2022 through March 2023, the Navy denied him interviews
for GS-12 positions, while the Army granted him an interview for a similar
job;
g) On or about March 2023, during another hiring process, he was given an
unfair advantage after being persuaded by the Railroad Operations Manager
to stay in the process, and a Letter of Reprimand was removed before his
hire;
h) In August 2023, he was denied his Position Description, violating the union
agreement; and
i) From some time in 2019 through some time in 2025, he experienced
multiple adverse actions, biased investigations, and denial of opportunities
after filing complaints.
2) Sometime in March 2022, the Railroad OPS Manager, Railroad Operations
Manager, Inventory Accuracy Officer and Deputy Officer referred Complainant

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for an interview for a Railroad Operations Manager position, but Complainant
was not interviewed, violating the union contract.
The 	Agency 	dismissed 	claims 	1(a) 	through 	(i) 	pursuant 	to 	29 	C.F.R. 	§
1614.107(a)(1). The Agency noted that these claims are the same allegations that
were raised in Complainant’s previous complaints: DON# 21-60478-00521 and
DON# 22-60478-00575. Further, Complainant withdrew these complaints. The
Agency dismissed claim 2 for untimely EEO Counselor contact, pursuant to 29
C.F.R. § 1614.107(a)(2). In so doing, the Agency determined that Complainant
initiated contact with an EEO Counselor on February 17, 2026. The Agency noted
that Complainant asserted that he became aware of the alleged discrimination in
December 2025. However, because Complainant did not specify an exact date in
December 2025, even assuming the latest possible date of December 31, 2025,
Complainant still waited to make EEO Counselor contact 48 days after the date of
his claimed awareness. Complainant did not claim that he was unaware of the time
limit for contacting an EEO Counselor. Consequently, the Agency concluded this
claim is untimely because it occurred more than 45 calendar days prior to
Complainant’s initiation of EEO Counselor contact.
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint that fails to state a claim or states the
same claim that 	is 	pending 	before or has 	been 	decided 	by 	the Agency 	or
Commission. An agency shall accept a complaint from any aggrieved employee or
applicant for employment who believes that he or she has been discriminated
against by that agency because of race, color, religion, sex, national origin, age or
disability. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a present
harm or loss with respect to a term, condition, or privilege of employment for
which there is a remedy. 	Diaz v. Dep’t of the Air Force, EEOC Request No.
05931049 (Apr. 21, 1994).
The Commission has held that a complainant who receives counseling on an
allegation but does not go forward with a formal complaint on that allegation is
deemed 	to 	have 	abandoned 	it 	and 	consequently, 	cannot 	raise 	it 	in 	another
complaint. Tate v. U.S. Postal Service, EEOC Request No. 0520060584 (Dec. 15,
2006) (claim abandonment when no complaint filed); Small v. U.S. Postal Service,
EEOC Request No. 05980289 (July 16, 1999).

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Here, the Agency noted that Complainant abandoned claims 1(a) through (i) when
he withdrew them in prior complaints. The record reflects that Complainant
withdrew complaints DON# 21-60478-00521 on May 4, 2021, and DON# 22-
60478-00575 on September 14, 2022. However, in both Complainant’s appeal and
in his withdrawal attached to DON# 22-60478-00575, he asserts that he withdrew
his complaints under the threat of duress because his employment was threatened.
The Commission has found that where a complainant "knowingly and voluntarily
withdrew his complaint...the Commission considers the matter to have been finally
abandoned." See Tellez v. Department of Transportation, EEOC Request No.
05930805 (February 25, 1994). The Commission has held that a complainant may
not request reinstatement of an informal complaint unless the complaint was
withdrawn pursuant to a settlement agreement. 	See Allen v. Department of
Defense, EEOC Request No. 05940168 (May 25, 1995). 	Once a complainant has
withdrawn an informal complaint, absent a showing of coercion, a complainant
may not reactivate the EEO process by filing a complaint on the same issue. Id. To
allow such a practice would, in effect, extend the limitations period for filing a
formal complaint and subvert the need for timeliness and efficiency in the EEO
administrative process.
Upon 	review, 	we 	find 	that 	the 	record 	supports 	a 	finding 	that 	Complainant
voluntarily withdrew his complaints. We note that the record contains no evidence
reflecting 	that 	Complainant 	was 	coerced 	into 	withdrawing 	either 	complaint.
Consequently, 	the 	Commission 	finds 	that 	the 	Agency's 	decision 	to 	deny
Complainant's request to reinstate his abandoned claims 1(a) through (i) from his
withdrawn complaints was proper.
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.

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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.
Regarding claim 2, the record discloses that the alleged discriminatory event
occurred in March 2022, but Complainant did not initiate contact with an EEO
Counselor until February 17, 2026, which is well 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.
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).

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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).
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.

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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 __________ 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 23, 2026
Date