EEOC Appeal 2026002327

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Hayden R.,1
Complainant,
v.
Hung Cao,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 2026002327
Hearing No. 551-2023-00080X
Agency No. 23-4523A-00212
DECISION
On May 6, 2026, Complainant filed an appeal with the Equal Employment
Opportunity 	Commission 	(EEOC 	or 	Commission), 	pursuant 	to 	29 	C.F.R. 	§
1614.403(a), 	concerning 	his 	equal 	employment 	opportunity 	(EEO) 	complaint
alleging 	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
Insulator Worker, WG-3610-08, at the Agency’s Shop 57, Puget Sound Naval
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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Shipyard & Intermediate Maintenance Facility (PSNS & IMF) in Bremerton,
Washington.
On March 8, 2023, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of disability (physical/mental) when the
Agency failed to accommodate his disabilities in incidents including the following:
1. 	On October 18, 2022, Complainant was not included in the interactive
discussions about essential functions with management during the job
search portion of the reasonable accommodation process.
2. 	On October 18, 2022, the Agency’s job search function stated that
Complainant was not qualified for any available positions at that time.
The Agency accepted the foregoing claims for investigation. 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 	Equal
Employment Opportunity Commission Administrative Judge (AJ). 	Complainant
timely requested a hearing. Over Complainant's objections, the AJ assigned to the
case granted the Agency’s July 3, 2024, motion for a decision without a hearing
and issued a decision without a hearing on March 24, 2026. When the Agency
failed to issue a final order within forty days of receipt of the AJ’s decision, the
AJ’s decision finding that Complainant failed to prove that the Agency subjected
him to discrimination as alleged became the Agency’s final action pursuant to 29
C.F.R. § 1614.109(i). Nevertheless, on May 7, 2026, the Agency subsequently
issued a final decision adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected him to discrimination as alleged. Complainant filed the
instant appeal.
On appeal, Complainant asserts that the AJ erred in issuing a decision without a
hearing 	and 	relies 	on 	his 	prior 	arguments 	on 	summary 	judgment 	(and 	the
supporting documentation) as to why summary judgment should not have been
granted in favor of the Agency.
The Agency contends on appeal that it presented ample evidence establishing that
Complainant was not a qualified individual and that the Agency properly followed
reasonable accommodation procedures. The Agency asserts that Complainant’s
arguments to the contrary rely not on evidence, but on his subjective beliefs.

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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).
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. Here, however, Complainant has failed to
establish such a dispute. Complainant did not dispute a majority of the facts in the
Agency’s Motion for Summary Judgment, but he did not provide any specific
explanation for the facts that were disputed or explain why he believed such facts
were material. Regardless, based on our review of the record, we do not find there
is any material fact in dispute regarding whether the Agency engaged in the
interactive 	process 	or 	whether 	Complainant 	was 	denied 	a 	reasonable
accommodation.

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An agency is required to make reasonable accommodation to the known physical
and mental limitations of an individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o)
and (p). In order to establish that he was denied a reasonable accommodation,
Complainant must show that: (1) he is an individual with a disability as defined by
29 C.F.R. § 1630.2(g); (2) he is “qualified” as defined by 29 C.F.R. § 1630.2(m);
and (3) the Agency failed to provide a reasonable accommodation. See EEOC
Enforcement 	Guidance 	on 	Reasonable 	Accommodation 	and 	Undue 	Hardship
Under the Americans with Disabilities Act (Enforcement Guidance on Reasonable
Accommodation), No. 915.002 (Oct. 17, 2002).
The Commission's precedent establishes that an agency cannot be held liable solely
for a failure to engage in the interactive process. Liability for a failure to engage
occurs when the failure to engage in the interactive process results in the agency's
failure to provide reasonable accommodation. Broussard v. U.S. Postal Serv.,
EEOC Appeal No. 01997106 (Sept. 13, 2002), req. to recon. den., EEOC Request
No. 05A30114 (Jan. 9, 2003). Thus, even assuming the Agency had failed to
engage in the interactive process (which is not reflected in the record), that is not
sufficient to establish discrimination. Complainant must show that the Agency’s
failure to engage in the interactive process during the job search process was the
reason he was not granted a reasonable accommodation.
Complainant contends he was denied a reasonable accommodation when the
Agency’s job search function stated that he was not qualified for any available
positions at that time. In cases regarding reassignment, a complainant must present
sufficient evidence to support a finding that, more likely than not, there was a
vacant, funded position, for which he was qualified and to which he could have
been reassigned. See Barnard v. U.S. Postal Serv., EEOC Appeal No. 07A10002
(Aug. 2, 2002). Complainant has not done so here. He contends the Agency should
have found the position for which he applied himself under a program that
specifically 	waives 	minimum 	qualification 	requirements 	(the 	UMP 	position).
However, Complainant has not provided any evidence to support that the UMP
position was open during the period in which the Agency was searching for
reassignments. The record reflects that the Agency searched for jobs at PSNS &
IMF from at least January 25, 2022, through at least August 10, 2022 (longer than
internal Agency policy required), and that the Agency searched for jobs external to
PSNS & IMF from July 6, 2022, through August 5, 2022.

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During this time frame, no jobs were identified for which Complainant met the
minimum qualifications and could perform the work within his limitations. The
UMP position was posted on November 3, 2022, after Complainant’s reassignment
search had ended. (Appeal Package, Part 2, p. 481). Complainant has not provided
any evidence to establish that the UMP position or another vacant, funded position
for which he was qualified and to which he could be reassigned was available
during the reassignment search conducted by the Agency. Thus, he has not met his
burden to show that the Agency denied him a reasonable accommodation.
While we are not unsympathetic to Complainant's situation, in this case, we find
that the Agency fulfilled its obligations under the Rehabilitation Act by engaging
in a good-faith effort to find an available, vacant position for Complainant and the
mere fact that the Agency's search was unsuccessful does not establish a violation
of the Rehabilitation Act. See Sanjuanita A. v. Dep't of Veterans Affs., EEOC
Appeal No. 2022004328 (Sept. 4, 2024).
Having thoroughly reviewed the record and construing any inferences raised by the
undisputed facts in favor of Complainant, we find that a reasonable fact-finder
could not find in Complainant’s favor. 	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.

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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
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.

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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.
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 15, 2026
Date