2025003239•EEOC Appeal 2025003239
Gesamter Gesetzestext
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Jon H.,1 Complainant, v. Hung Cao, Acting Secretary, Department of the Navy, Agency. Appeal No. 2025003239 Hearing No. 510-2022-00342X Agency No. DON-22-65886-00252 DECISION On June 11, 2025, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 13, 2025, final order concerning his equal employment opportunity (EEO) complaint of employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. At the time of events giving rise to this complaint, Complainant worked as an Electronic Mechanic Apprentice, WT-2604-00, at the Fleet Readiness Center Southeast of the Agency’s Naval Air Station Command, located in Jacksonville, Florida. 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.
2025003239 2 On January 4, 2022, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination based on disability (dyspraxia)2 when management on June 16, 2021, denied his reasonable accommodation request; on July 21, 2021, terminated him; and on August 11, 2021, declined his June 30, 2021, request for reconsideration through Alternative Dispute Resolution (ADR). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing before an AJ. The Agency submitted a motion for a decision without a hearing. Over Complainant’s objections, the AJ entered judgment in favor of the Agency, finding no discrimination. The Agency thereafter issued a final order fully implementing the AJ’s decision. The instant appeal followed. As this is an appeal from a decision issued without a hearing, the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”); see also EEO MD-110, at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). The Commission’s regulations allow an AJ to grant summary judgment when they find that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). A fact is “material” if it has the potential to affect the outcome of the case. Id. When considering summary judgment, facts and inferences must be viewed in the light most favorable to the non-moving party. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009). 2 Dyspraxia is a neurodevelopmentional condition that affects physical coordination, motor planning, and balance.
2025003239 3 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. 29 C.F.R. § 1614.109(g)(2); Celotex, 477 U.S. at 322-24; see also EEO MD-110, at Chap. 7, § III.E. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Having thoroughly reviewed the record and construing any inferences raised by the undisputed facts in favor of Complainant, we find that a reasonable factfinder could not find in Complainant’s favor. At the outset, we note Complainant’s claim concerning management’s unwillingness to participate in ADR. Commission policy states that, “[n]othing said or done during attempts to resolve [a] complaint through EEO ADR can be made the subject of an EEO complaint.” Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 3 § III.H (Aug. 5, 2015). Also, “an Agency's decision not to offer EEO ADR for a particular case . . . cannot be made the subject of an EEO complaint.” Id. Thus, we find that this matter is properly dismissed for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Regarding Complainant’s remaining claims, we find that the AJ correctly found no discrimination regarding Complainant’s remaining claims. Specifically, the Agency denied Complainant’s requested accommodation after determining that no accommodation would enable him to perform the essential functions of the Electronics Mechanic position, which required mechanical skill and the ability to use various hand tools including soldering irons, wrenches, screwdrivers, torque wrenches, wire strippers, and crimpers, to perform repairs and replace defective components.3 In reaching its determination, the Agency considered that instructors had provided Complainant with ongoing remediation, additional time, magnifiers and microscopes, and hands-on assistance with positioning tools in his hand. 3 Complainant submitted a request indicating he had a developmental disability, specifically, his center of balance was off, and his hand-eye coordination was slower than average. He sought the opportunity to retake the 2M Course, and to be given more time to accomplish soldering tasks.
2025003239 4 Notwithstanding these measures, Complainant remained unable to successfully perform required tasks, including crimping wires and soldering miniature circuit boards, and, on one occasion, required five hours to complete a wire test that ordinarily took two to three hours. Ultimately, Complainant failed to pass the required 2M Course. The Agency ultimately terminated Complainant during his probationary period because he failed to obtain the 2M certification required to continue in the Electronics Mechanic Apprentice program. We note that the Agency also explored reassigning Complainant to another position within the apprentice program but, following a review of applicable policy, determined that he was ineligible for reassignment because of his probationary status. The Commission has long held that where a complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 0119882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. 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.
2025003239 5 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). 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.
2025003239 6 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. 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 T. Gimbrere, Acting Director Office of Federal Sector September 21, 2026 Date
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