EEOC Appeal 2025003239

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.

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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.

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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.

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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.

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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.

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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