EEOC Appeal 2026002682

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013

G |

enaro D.,
Complainant,

Vv.

Douglas A. Collins,

Secretary,
Department of Veterans Affairs,

Agency.

Appeal No. 2026002682
Hearing No. 460-2025-00103X
Agency No. 2003-26-2024-155584
DECISION

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 1, 2026 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 a
Construction Analyst, GS-12, with the Agency’s Houston VA Regional Office in
Houston, Texas.

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 February 29, 2024, Complainant filed an EEO complaint alleging that the
Agency discriminated against him based on his disability (physical) and in reprisal
for prior protected EEO activity when:
1. 	On October 17, 23, 24, and 26, 2023, his supervisor denied his request for
reasonable accommodation;
2. 	On November 1, 2023, his supervisor terminated him from federal
employment during his probationary period;
3. 	On 	November 	16, 	2023, 	the 	Supervisory 	Appraiser, 	rated 	him
“Unacceptable” in the areas of production, quality, and time management;
and
4. 	On May 21, 2024, Complainant became aware of management’s failure to
select him on April 5, 2024, for the position, Construction Analyst, Job
Vacancy Announcement No. 12277492.
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. The
AJ granted the Agency’s motion and issued a summary judgment decision finding
that Complainant was not subjected to discrimination. The Agency subsequently
issued a final order fully adopting the AJ’s decision.
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. 	Complainant 	failed 	to 	establish 	that 	the
explanations 	for the employment 	actions 	at issue herein were a pretext 	for
discriminatory or retaliatory animus. For example, Complainant was terminated for
unsatisfactory performance; and Complainant was not selected for the position at
issue due to the fact that he was previously terminated for poor performance. The
record is devoid of evidence beyond Complainant’s mere speculation and suspicion
that the alleged conduct was based on discriminatory or retaliatory animus.
The record also establishes that the Agency had documented significant issues with
Complainant’s 	performance 	prior 	to 	his 	October 	17, 	2023, 	request 	for
accommodation.

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Complainant communicated his request for accommodation while on leave via
email. The Agency immediately agreed to accommodate him if and when he
returned 	to 	work. 	Complainant 	was 	terminated 	on 	October 	31, 	2023, 	for
unsatisfactory performance during his probationary period prior to the completion
of the interactive process and prior to Complainant’s return from leave. Agencies
are not obligated to lower performance standards or otherwise excuse conduct issues.
See Johnson v. Dep't. of the Interior, EEOC Petition No. 03940100 (Mar. 29, 1996)
(“employers do not have to excuse the violation of uniformly-applied conduct or job
performance standards as a form of reasonable accommodation”). Given these facts,
we find that Complainant was not denied reasonable accommodation in violation of
the Rehabilitation Act.
Upon careful review of the AJ’s decision and the evidence of record, including
arguments on appeal, we conclude that the AJ correctly determined that the
preponderance of the evidence did not establish that Complainant was subjected to
discrimination or reprisal 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. 	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.

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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.

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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 	__________
T. Gimbrere, Acting Director
Office of Federal Sector
September 22, 2026
Date