EEOC Appeal 2020000528

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jarvis B.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of Defense
(National Geospatial-Intelligence Agency),
Agency.
Appeal No. 2020000528
Agency No. NGA-0060-2018
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated September 23, 2019, 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 the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Manager at
an Agency facility in Springfield, Virginia.
On November 15, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of sex (male) and age (66) when his Supervisor (S1), after her
Fiscal Year (FY) 2017 Close-out Evaluation rating of 2.2 for Complainant’s performance was
overturned, “inadvertently left [negative information in] the ‘closeout evaluation’ thus severely
damaging [Complainant’s] chances for promotion.” Complainant alleged that the negative
information impacted an August 2018 Rank-in-Person review and would impact him for the next
three years unless changed. Complainant stated that the instant complaint related to discrimination
alleged in a complaint initiated in June 2017.
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 September 23, 2019, the Agency issued a final decision dismissing Complainant’s complaint
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely Equal Employment Opportunity (EEO)
Counselor contact. The Agency stated, on September 4, 2018, Complainant initiated EEO contact
alleging discrimination based on negative information inadvertently left in his FY2017 Close-out
performance evaluation. Notably, S1 was Complainant’s supervisor between August 22, 2016 and
October 4, 2017, and the FY17 evaluation was signed by the Reviewing Rating Official on October
10, 2017. The Agency stated that Complainant alleged the evaluation impacted his 2018 Rank-in-
Person review for promotion to the next level, but he did not grieve the non-selection in the instant
complaint.
The instant appeal from Complainant followed. On appeal, Complainant stated that he initiated
EEO contact on June 20, 2017 regarding a related matter and, in October 2017, he informed an
EEO Counselor of concerns regarding his close-out evaluation.2
ANALYSIS AND FINDINGS
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 record discloses that the alleged discriminatory event occurred in October 2017, but
Complainant did not initiate contact with an EEO Counselor until September 4, 2018, 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. Further, the record reveals that Complainant had the opportunity to address his
FY 2017 close-out evaluation narrative in a prior EEO complaint, Agency No. NGAE-0026-2017.
We find dismissal pursuant to 29 C.F.R. § 1614.107(a) appropriate.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
2 The record reveals that, in 2017, Complainant filed a formal complaint, which the Agency
identified as No. NGAE-0026-2017. That complaint included an allegation regarding
Complainant’s October 16, 2017 final close-out evaluation rating of 2.2. Complainant stated that
he grieved the rating and management raised the rating to 3.0.

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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.

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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:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
May 7, 2020
Date