EEOC Appeal 2026003325

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Iesha P.,1
Complainant,
v.
Hung Cao,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 2026003325
Agency No. 26-00250-00188
DECISION
Complainant 	filed 	a timely 	appeal 	with the Equal Employment 	Opportunity
Commission (EEOC or Commission) from the Agency's decision dated June 12,
2026, 	dismissing 	her 	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. For the reasons set forth
below, we AFFIRM the Agency’s final decision dismissing Complainant’s formal
complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales
Associate at the Agency’s Navy Exchange in Bethesda, Maryland.
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.

2026003325	2
On May 15, 2026, Complainant filed a formal complaint alleging the following:
1. Whether Complainant was subjected to harassment (non-sexual) by the
Navy Exchange Service Command based on race (African American) when:
a. 	From October 2025 through January 2026, the Operations Manager
failed to provide heating equipment to the front-end employees, who
were all African American, requiring Complainant to work in unsafe
cold temperature;
b. In December 2025, the Operations Manager, was permitted to use a
personal space heater in the back room with management approval,
while frontline employees continued working in the cold temperature
without access to heat;
c. 	In December 2025, the Operations Manager, in response to the cold
temperature described in incident (b), laughed and stated that she
could not “place a heater in the refrigerator or freezer”;
d. On December 1, 2025, after Complainant reported concerns regarding
the 	cold 	workplace 	temperature 	to 	the 	Human 	Resources 	(HR)
Department, the HR Representative, discouraged Complainant from
filing a formal complaint; and,
e. 	On December 3, 2025, the Operations Manager told Complainant to
wear additional layers of clothing rather than taking action to address
the cold workplace temperature.
2. Whether 	the 	Navy 	Exchange 	Service 	Command 	failed 	to 	provide 	a
reasonable accommodation and subjected Complainant to harassment (non-
sexual) based on disability (physical-Asthma) when:
a. 	On December 1, 2025, after informing the HR Representative that
Complainant’s 	medical 	condition 	was 	being 	aggravated 	by 	the
workplace cold temperature, the HR Representative “failed” to engage
in the interactive process for a reasonable accommodation;
b. In 	December 	2025, 	Complainant 	was 	absent 	from 	work 	for
approximately nine (9) days due to medical issues that Complainant
alleges 	were 	aggravated 	by 	the 	cold 	temperature 	in 	her 	work
environment, resulting in the exhaustion of Complainant’s annual and
sick leave; and,
c. 	On December 23, 2025, the HR Representative requested an updated
doctor’s note containing diagnosis and prognosis information that had
not previously been required.

2026003325	3
3. Whether Complainant was subjected to a hostile work environment and
harassment (sexual) on the basis of sex (female) when:
a. 	An 	external 	vendor 	Maclean 	delivery 	driver 	(Delivery 	Driver),
wrapped his arms around Complainant and touched her breast without
her consent;
b. In 	January 	2025, 	the 	Department 	Manager, 	and 	the 	Operations
Manager 	“failed” 	to 	properly 	report 	or 	take 	appropriate 	action
regarding the incident described in incident (a);
c. 	In 	April 	2025, Delivery 	Driver returned 	to 	the NEX 	to 	deliver
materials and stated to Complainant, “Yup, I am back on the base”;
d. In 	April 	2025, 	Operations 	Manager 	informed 	Complainant 	that
Deliver Driver would no longer be permitted on the base; however,
this information was provided without verification, and Complainant
later learned that he continued to have access to the installation;
e. 	In January 2026, Delivery Driver 	continued making deliveries to the
NEX, 	requiring 	Complainant 	to 	encounter 	him 	despite 	prior
assurances that he would not return; and,
f. 	On February 4, 2026, Complainant overheard coworkers discussing
the incident described in incident (a) involving Delivery Driver, which
Complainant 	believes 	resulted 	from 	the 	improper 	disclosure 	of
information during management’s inquiry.
The Agency dismissed the complaint pursuant to 29 CFR §1614.107(a)(2) for
untimely filing of the formal complaint. In the decision, the Agency found that
Complainant received an email notification from the EEO Counselor that the
Notice of Right to File Complaint of Discrimination (Notice or NTRF) was issued
on March 20, 2026. On March 20, 2026, Complainant received an automated email
informing Complainant that the Notice of Final Interview and Right to File
Complaint 	of 	Discrimination 	had 	been 	dropped 	off 	and 	were 	available 	to
download. The Agency found that Complainant received the Notice on March 20,
2026. Therefore, she had to file her formal complaint by April 4, 2026, 15 days
after receiving the Notice. 	On May 7, 2026, Complainant downloaded the NRTF
from Department of Defense Secure Access File Exchange (DoD SAFE), and filed
her formal complaint on May 15, 2026. The Agency determined that Complainant
filed her complaint 41 days late, therefore her formal complaint was untimely filed.
The instant appeal followed.
CONTENTIONS ON APPEAL

2026003325	4
On appeal, Complainant, through counsel, requests the Commission reverse the
Agency’s decision dismissing the formal complaint. Complainant states that before
her complaint was dismissed and before Complainant retained her current counsel,
Complainant and the Agency had scheduled a mediation. On April 24, 2025,
current counsel informed the Agency she was Complainant’s legal representative.
On May 7, 2026, the date of the mediation, Agency counsel informed the
participants 	that 	they 	had 	received 	Complainant’s 	revised 	settlement 	offer.
However, Complainant’s case had been closed because she failed to file a formal
complaint. Complainant informed her counsel she had not received or accessed a
NRTF. When she searched her email, Complainant found the March 20, 2026,
email in her junk folder. However, the link to access the NRTF was no longer
available. Counsel informed the Agency that Complainant had not received the
link because it had gone to her junk folder. That same day, the Agency reissued the
NRTF to Complainant and her counsel.
Complainant argues that the Agency failed to establish receipt of the March 20th
NRTF. The Agency cannot show that Complainant accessed the original DoD
SAFE file on March 20, 2026, or before it expired. The Agency acknowledged that
the first NRTF was not retrieved. Therefore, Complainant argues that the evidence
establishes that Complainant did not receive the March 20th NRTF.
In response to the instant appeal, the Agency requests that the Commission affirm
the FAD. The Agency argues the filing deadline should be calculated from the date
the Notice was properly transmitted and/or deemed received under the applicable
EEOC regulations. The Agency argues that the Commission’s regulations provide
that for portal, email, and all other digital communications, receipt is deemed when
a document is accessed on the portal or received via electronic means, or within
five 	days 	of 	when 	a 	document 	is 	uploaded 	to 	the 	portal 	or 	transmitted
electronically, 	whichever 	occurs 	first. 	Therefore, 	receipt 	is 	deemed 	to 	have
occurred no later than five days after the initial forwarding date. Additionally,
Complainant was expressly advised that the Notice was forthcoming and was
repeatedly informed that upon receipt of the Notice, she had 15 days to file her
formal complaint. The Agency argues that Complainant’s attempt to excuse her
untimely filing because the email went to her junk folder is not sufficient to toll or
extend the filing deadline.

2026003325	5
ANALYSIS
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an
agency shall dismiss a complaint for failure to comply with the applicable time
limits, unless the agency extends the time limits in accordance with 29 C.F.R. §
1614.604(c). A formal “complaint must be filed within 15 days of receipt of the
notice required by § 1614.105 (d), (e) or (f).” 29 C.F.R. § 1614.106(b). The
Commission generally holds that documents transmitted to a complainant by email
shall be deemed to be received when received if transmitted via email, or within
five days of when the decision is emailed, whichever occurs first. See 29 C.F.R. §
1614.604(d).
The record contains an email from the EEO Counselor to Complainant and her
non-legal representative sent on March 20, 2026. Complaint File at 57. In the
email, the EEO counselor informed them that the EEO office would transmit the
final 	interview 	and 	the 	NRTF 	via 	the 	DoD 	SAFE, 	a 	secure 	platform 	for
transmitting documents. The email explains that Complainant would receive an
email with instructions to access the files, including an ID, Recipient Code, and
Claim Passcode. Additionally, access to the file would be available for seven days
from the date of the notification. The email also informed Complainant she would
have 15 calendar days from receipt of the NRTF to file a formal complaint. The
EEO Counselor received an email from the system with the subject: [DoD SAFE]
Confirmation of Completed Drop-off, confirming that the drop-off the EEO
Counselor submitted was successfully sent to recipients. It states the Complainant
and 	her 	non-legal 	representative 	received 	an 	email 	stating: 	Notice 	of 	Final
Interview/Right to File a Discrimination Complaint - DON No.26-00250-00188 -
20 March 2026, and that the drop off was completed on March 20, 2026. Faxed
Appeal at 50.
The EEO Counselor notified Complainant that the NRTF would be sent to her via
the DoD SAFE and Complainant had been informed of the 15-day filing deadline
for filing her formal complaint. Using the five-day presumption for electronic
transmissions 	to 	complainants 	stated 	above, 	the 	Commission 	finds 	that
Complainant had five days from the March 20, 2026, email to retrieve the NRTF.
Therefore, Complainant is deemed to have received the NRTF by March 25, 2026,
and required to file her formal complaint by April 9, 2026. However, despite being
notified of the 15-day filing period, Complainant filed her formal complaint on
May 15, 2026, over a month past the 15-day filing deadline.

2026003325	6
Complainant acknowledged that she found the March 20, 2026, email in her junk
folder. A complainant must act with due diligence in pursuit of her claim. Alice S.
v. Soc. Sec. Admin., EEOC Appeal No. 2019002475 (Sept. 22, 2020). The
Commission has previously found that due diligence includes providing an email
address at which one is likely to be reached and includes regularly checking one’s
spam folder. See Melissia M. v. U.S. Postal Serv., EEOC Appeal No.2024002633
(July 	28, 	2025) 	citing 	Irene 	C. 	v. 	U.S. 	Postal 	Serv., 	EEOC 	Appeal 	Nos.
2021002236, 	2021002238 	(Sept. 	8, 	2022). 	Here, 	under 	the 	circumstances
presented, the Commission finds that in not regularly checking her junk folder,
Complainant exhibited a lack of due diligence.
On appeal, Complainant has not offered any justification to warrant an extension of
the time limit for filing the complaint. Therefore, we find the Agency properly
dismissed the complaint due to the untimely filing of the formal complaint.
CONCLUSION
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.

2026003325	7
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).
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.

2026003325	8
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 22, 2026
Date