EEOC Appeal 2026002747

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Paul D,1
Complainant,
v.
Troy E. Meink,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 2026002747
Agency No. 9V1M2400114
DECISION
Complainant 	timely 	appealed 	with 	the 	Equal 	Employment 	Opportunity
Commission (EEOC or Commission) from the Agency's May 20, 2026, dismissal
of 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.
Upon review, the Commission AFFIRMS the Agency’s decision.
During the relevant time frame, Complainant was employed by the Agency as an
IT Specialist (Systems Analysis), GS-11, for the 72d Air Base Wing (72 ABW),
SC Division (SCPK) at Tinker Air Force Base, Oklahoma. Complainant names the
72 ABW/SC Supervisory IT Specialist, (Supervisor), 72 ABW/SC Division Chief,
(Division Chief), 72 ABW/SC Director, (Director), and a 72 ABW/SCPK Applied
Technologies Lead (Lead) as the responding management officials.
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 April 14, 2026, Complainant filed a formal EEO complaint alleging that the
Agency subjected him to discrimination on the bases of race (African-American),
color (Black), and reprisal for prior protected EEO activity when:2
1. On July 18, 2022, Complainant was hired at a Step 1, even though he
provided evidence to support a higher step level, and other SCPK
employees with fewer or comparable qualifications to Complainant
were placed in higher steps and grades;
2. On November 9, 2022, Complainant engaged in protected activity
(supporting coworkers who questioned leadership about why SCPK
was not permitted to telework);3
3. From 	late 	2022, 	through 	May 	2, 	2023, 	Management 	“targeted”
Complainant 	and 	others 	who 	engaged 	in 	protected 	activity 	on
November 9, 2022, by subjecting them to increased scrutiny and
threats of disciplinary action;
4. On April 14, 2023, Complainant’s employment was terminated;
2 The claims are numbered to reflect Complainant’s formal EEO complaint. The
allegations in Claims 12 and 13 are also referred to in the record as Claims 1 and 2,
Claims a and b, and Claims 2(a) and 2(b).
3 For continuity, we included all 14 claims. However, the act of engaging in
protected activity is not, in itself, an adverse employment action or harassment.
Moreover, the activity Complainant describes in Claims 2 and 8 is not protected.
See, e.g. Danilo T. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2025004365
(Feb. 2, 2026) (complainant did not engage in protected activity when he reported
his supervisor for trying to force him to perform work outside his job description).
“Protected activity” consists of either opposing an employment action made illegal
by the discrimination statutes (“the opposition clause”) or by filing a charge,
testifying, assisting, or participating in any manner in an investigation, proceeding,
or hearing, under Title VII or other employment discrimination statute (“the
participation clause”). See Filiberto H. v. Dep’t of Veterans Affairs, EEOC Appeal
No. 2025002839 (Aug. 11, 2025); Carol B. v. Tenn. Valley Auth., EEOC Appeal
No. 2022004545 (Sept. 5, 2024) citing Patterson v. Dep’t of Veterans Affairs,
Appeal No. 0120072001 (May 21, 2008).

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5. On May 2, 2023, Supervisor informed Complainant that Division
Chief was identifying and targeting specific employees;
6. On May 2, 2023, Division Chief indicated that he had discretion over
Complainant’s 	employment 	by 	stating 	that 	Complainant’s
reinstatement was his decision;
7. On June 28, 2023, Supervisor directed Complainant to work with a
contractor (Contractor); Contractor “initiated an aggressive exchange
and made threats toward [Complainant];” in accordance with prior
written 	directives, 	Complainant 	documented 	and 	reported 	the
interaction; Management subsequently accused Complainant of failing
to follow directives and causing the incident;
8. Prior to and after July 10, 2023, Complainant engaged in protected
activity 	(contacting 	and 	meeting 	with 	leadership, 	and 	reporting
Contractor’s conduct, thereby “demonstrate[ing] a continuous pattern
of opposition to conduct I reasonably believed to be improper, unfair,
and inconsistently enforced”);
9. From 	July 	10 	- 	19, 	2023, 	Complainant 	requested 	a 	reasonable
accommodation, Supervisor denied the request, and failed to engage
in the interactive process;
10.On July 28, 2023, Supervisor issued Complainant a Form 971 for
failure 	to 	follow 	directives, 	and 	for 	causing 	the 	incident 	with
Contractor;
11.In 	August 	2023, 	the 	Agency 	failed 	to 	perform 	an 	adequate
investigation after Complainant filed an anti-harassment complaint;
12.On August 24, 2023, Complainant’s employment was terminated
again (following a previous termination in April 2023, that was
rescinded in May 2023);
13.On October 26, 2023, Complainant became aware that Director stated,
“You got us the first time, we made sure to do whatever it took the

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second time,” in reference to Complainant’s second termination as an
IT Specialist; and
14. From November 2022, through August 24, 2023, Complainant was
subjected to a hostile work environment, including, but not limited to
the events in Claims 1-13.
Procedural Background
Complainant initiated EEO contact on November 21, 2023. According to the EEO
Counselor, on November 29, 2023, she interviewed Complainant; on December 6,
2023, she conducted a pre-complaint inquiry and sent a “Request for Mediation” to
the Alternative Dispute Resolution (ADR) office; on February 29, 2024, ADR
notified her that mediation was not successful; on March 5, 2024, she conducted a
final interview with Complainant and mailed him the Notice of Right to File
(NRTF); on March 23 and 30, 2024, she called Complainant because she had not
received a formal complaint; and on April 1, 2024, she closed the complaint, as it
was past the filing deadline and Complainant did not file or respond to her calls.
The record includes a copy of a completed intake packet, signed by Complainant
and the EEO Counselor on December 6, 2023. There is no documentation in the
record of the pre-complaint inquiry, the March 5, 2024, NRTF, or proof that the
NRTF was delivered to Complainant.
On March 31, 2026, Complainant contacted the Agency, asking to file a formal
complaint. In an April 2, 2026, email, Complainant explained that he did not
follow up earlier because he never received the NRTF.4 The EEO Counselor
provided Complainant with a new NRTF on April 8, 2026, which identified the
allegations in Claim 12 (second termination) and Claim 13 (Director’s comment
about second termination) only. Complainant does not dispute that these were the
only issues raised during EEO counseling. 	He added Claims 1-11 and 14 in his
Formal EEO Complaint. On May 5, 2026, in response to the Agency’s request for
clarification, Complainant confirmed that he intended the new claims to be part of
the instant complaint.
4 Complainant asserts, on appeal, that he made previous attempts to pursue his
complaint, and provides emails reflecting that he communicated with an EEO
Investigator in August 2024.

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The Agency dismissed Claims 1-12 and 14 pursuant to 29 C.F.R. § 1614.107(a)(2),
for untimely contact with an EEO Counselor, and/or raising a matter that has not
been brought to the attention of an EEO Counselor and is not like or related to the
claims on which Complainant received counseling.
The Agency determined that the allegation in Claim 13 (Director’s comment about
the second termination) was timely but dismissed Claim 13 for failure to state a
claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency reasoned that a remark
or comment, unaccompanied by a concrete adverse employment action, does not
render an employee aggrieved under Title VII. The Agency further reasoned that
Complainant’s 	remaining 	claims 	concerned 	“specific, 	discrete 	employment
actions,” rather than a single hostile work environment claim.
On appeal, Complainant contends that Claims 1-13 comprise a single, timely-
raised hostile work environment claim because they are like and related, and the
most recent event (Claim 13) occurred within 45 days of his initial EEO Contact.
Citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (Jun. 10, 2002).
He explains that Claims 12 and 13, which he raised with the EEO Counselor, are
“Anchor Allegations,” and all the new claims in his formal EEO complaint “flow
directly from one or both of the two anchor allegations.” He also clarifies that
Claim 13 describes a “post-termination statement by [Director].” He asserts that
the Agency “misapplied Morgan” when it framed the hostile work environment in
Claim 14 to conclude with his termination on August 24, 2023, rather than with
Director’s retaliatory comment on October 26, 2023. 	Complainant’s remaining
arguments concern the merits of his claims and his entitlement to damages, which
fall outside the scope of this decision.
In response to Complainant’s appeal, the Agency argues, for the first time, that
Complainant abandoned his claims when he failed to file a formal EEO complaint
or follow up with the EEO Counselor’s calls in March 2024. We decline to address
the Agency’s appellate argument because Complainant was not put on notice that
this was a dismissal grounds in the Agency's final decision. See Zenia M. v. Dep’t
of Veterans Affairs, EEOC Appeal No. 2019002305 (May 7, 2019), see also, e.g.
Renee P. v. Dep’t of the Army, EEOC Request No. 0520160217 (Jun. 17, 2016)
(Commission 	declined 	dismissing 	complaint 	on 	grounds 	of 	untimely 	EEO
Counselor contact, noting that the agency had opportunity to dismiss in its final
decision but failed to do so and raised the issue for first time on appeal).

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Untimely EEO Contact
The regulation set forth under 29 C.F.R. §1614.107(a)(2) states, in relevant part,
that an agency shall dismiss a complaint or a portion of a complaint that fails to
comply 	with 	the 	applicable 	time 	limits 	contained 	in 	§1614.105. 	Under
§1614.105(a)(1), 	an 	aggrieved 	person 	must 	initiate 	contact 	with 	an 	EEOC
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 Supreme Court of the United States has held that a complainant alleging a
hostile work environment will not be time barred if all acts constituting the claim
are part of the same unlawful practice and at least one act falls within the filing
period. 	See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (Jun. 10,
2002). The Court further held, however, that "discrete discriminatory acts are not
actionable if time barred, even when they are related to acts alleged in timely filed
charges." Id. The Court defined such "discrete discriminatory acts" to include acts
such as termination, failure to promote, denial of transfer, or refusal to hire, acts
that constitute separate actionable unlawful employment practices. Id. Finally, the
Court held that such untimely discrete acts may be used as background evidence in
support of a timely claim. Id.
Complainant initiated EEO contact on November 21, 2023, more than 45 days
after the alleged events in Claims 1-12 and 14. The alleged event in Claim 13
(Director’s comment about the second termination) occurred on October 26, 2023,
which is within the 45-day limitation period.
Complainant maintains that Claim 13 is part of the overarching hostile work
environment allegation in Claim 14, therefore, under Morgan, all the claims, to the
extent that they allege a hostile work environment, should be accepted as timely.
Complainant disregards the fact that he was no longer an Agency employee when
the event in Claim 13 occurred. A comment made two months after Complainant’s
termination, by definition, cannot have contributed to an alleged hostile work
environment. 	We 	find 	that 	the 	Agency 	properly 	framed 	the 	hostile 	work
environment allegation in Claim 14 to conclude with Complainant’s termination on
August 24, 2023, thereby excluding the alleged event in Claim 13.5
5 This decision does not affirm, and declines to address, the Agency’s additional
analysis regarding discrete acts.

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Claims 1-12 and 14 were properly dismissed for untimely EEO contact, pursuant to
29 C.F.R. §1614.107(a)(2).
Failure to State a Claim – Claim 13
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a
complaint from an aggrieved employee or applicant for employment who believes
that they have 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). 	If 	the
complainant cannot establish that they are aggrieved, the agency shall dismiss a
complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1).
Where, as here, a complaint does not challenge an agency action or inaction
regarding a specific term, condition, or privilege of employment, a claim of
harassment may survive if it alleges conduct that is sufficiently severe or pervasive
to alter the conditions of the complainant’s employment. 	See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 23 (1993). A few isolated incidents of alleged
harassment, 	unaccompanied 	by 	a 	concrete 	employment 	action, 	are 	usually
insufficient to state a claim. See Phillips v. Dep’t of Veterans Affairs, EEOC
Request No. 05960030 (Jul. 12, 1996); Banks v. Health & Human Servs., EEOC
Request No. 0594081 (Feb. 16, 1995).
Complainant was not an employee, so the allegation in Claim 13 would not have
altered the conditions of his employment.6 Regardless, the Agency properly found
that Claim 13 fails to state a claim of hostile work environment because the alleged
6 The only scenario where a former employee may state a claim regarding events
that occurred after separation from an agency, is where the former employee
alleges that their current employment was harmed by information provided by the
agency (e.g. negative reference), as reprisal for protected EEO activity that arose
from their employment with the agency. See Barbara S. v. Dep’t of the Navy,
EEOC Appeal No. 2021001824 (Jun. 8, 2021) discussing Robinson v. Shell Oil
Co., 519 U.S. 337 (1997).

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discriminatory 	act 	is 	an 	isolated 	incident, 	unaccompanied 	by 	a 	concrete
employment action.
Claim 13 was properly dismissed for failure to state a claim pursuant to 29 C.F.R.
§1614.107(a)(1).
Accordingly, the Agency’s decision 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

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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
9/21/2026
Date