EEOC Appeal 2026002239

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Romeo K.,1
Complainant,
v.
Pete Hegseth,
Secretary,
Department of War
(Defense Logistics Agency),
Agency.
Appeal No. 2026002239
Hearing No. 430-2024-00406X
Agency No. DLAN-24-000018
DECISION
On April 25, 2026, 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 March 31, 2026, final order 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.
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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At the time of events giving rise to this complaint, Complainant worked as a
Distribution 	Facilities 	Manager 	at 	the 	Agency’s 	Defense 	Logistics 	Agency
Distribution facility in Norfolk, Virginia.
On February 5, 2024, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the basis of disability (mental; physical) when he was
subjected to numerous incidents of harassment including but not limited to the
Commander asking him, “those disabilities didn’t bother your mind, did they?”; he
received a poor performance rating from the Director of Support Operations, who
was his first-line supervisor (Supervisor) based on a job he was no longer doing; and
on or around June 2023, the former Deputy Commander asked him about his
disabilities in front of other employees and when Complainant answered, the Deputy
Commander interrupted him by saying, “Oh, I have the same thing,” which
Complainant interpreted as the Deputy Commander implying that he has the same
disability and still comes to work.
Complainant has been diagnosed with adjustment disorder with mixed anxiety and
depression, which has led to numerous panic attacks. He requested and was granted
a reasonable accommodation in the form of telework three days a week and being
off for two days a week. See Report of Investigation (ROI) at 294. He stated that
the Deputy Commander and he had weekly meetings to discuss current and
upcoming projects and tasks, and the Commander invited himself to the meetings to
“find out what [Complainant] was doing,” but then started questioning him in a way
that made the meeting feel more like an interrogation. 	He asserted that the
Commander started to give Complainant a list of things to work on and when he
responded that because of his disabilities, he cannot stay out in the warehouse, the
Commander responded, “the disabilities didn’t mess with your head?” making him
feel attacked. See ROI at 391-93. He asserted that the Commander has never been
kind or accepting and after he filed a complaint, the Commander has ignored him
unless necessary. 	See ROI at 396. 	He also stated that the Commander has given
him “busy work,” work that was already completed or assigned to someone else,
which made him feel humiliated. See ROI at 396.
The Commander denied making a comment about Complainant’s disabilities
messing 	with 	his 	head, 	explaining 	that 	at 	the 	meeting, 	he 	and 	the 	Deputy
Commander told Complainant that they were having challenges with Hazmat items
building up for over 50 days in the Work in Progress area and the team was
struggling with how to get out of the Work in Progress area so he asked Complainant

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to look at the process and figure out why the team might be struggling. See ROI at
430. He stated that he only complimented Complainant by telling him that he was
sharp and that his years of subject matter expertise and experience would be useful
in figuring out a solution. See ROI at 430.
Complainant further asserted that his then first-line Supervisor started making
comments about how “we need butts in the seat,” and “if it were just up to me, I
would not renew your reasonable accommodation,” and that the Supervisor wrote
his performance rating based on the elements of his position and not the projects he
actually performed. 	See ROI at 400. 	He clarified that although he could “pick
pieces” from each element and make them fit his current job, the Supervisor only
wrote generic responses and did not consider the position Complainant was actually
functioning in and that there were some elements, like being a supervisor, that he
was no longer performing. See ROI at 411. He asserted that he was never told he
had any performance issues, so he was “shocked” by the rating and felt it was a
“direct attack” after the Supervisor had made comments about wanting to deny his
accommodation. See ROI at 401-402.
The Supervisor denied that he gave Complainant a negative performance rating,
clarifying that he gave Complainant a Fully Successful rating. See ROI at 505-506.
He 	stated 	that 	he 	does 	not 	remember 	having 	a 	specific 	conversation 	with
Complainant about the rating but that because the rating did not mention any
performance deficiencies, there would not have been a reason to have any discussion
or receive guidance from HR. See ROI at 506-507. The Supervisor explained that
Complainant’s performance elements had been assigned by the previous Deputy
Commander, not by him, and when he took over, he did not update any of his new
direct reports’ performance elements, regardless of any change in duties, and in any
event, he believed that all the elements remained relevant to Complainant’s position
because of Complainant’s role as a leader in the Operations organization where he
continued to mentor and train other employees in Operations and also to advise on
strategic actions and plans. See ROI at 514.
Complainant further took issue with the Deputy Commander allegedly violating his
privacy by sharing confidential information with people who did not have a need to
know. 	At a meeting, he heard the Deputy Commander talking about how he was
going to get the reasonable accommodation employees back to work and that one
employee had been home for three years and had not done any work and when
Complainant told the Deputy Commander not to share an employee’s personal

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medical information, the Deputy Commander responded that he had not been talking
about Complainant but had been talking about another employee. See ROI at 403-
404. He also asserted that another employee told him that the Deputy Commander
had 	been 	going 	around 	telling 	people 	that 	Complainant 	is 	on 	reasonable
SKaccommodation and needed work, which he stated violated his privacy. See ROI
at 397; 407-408. Complainant also stated that during a fire drill when hundreds of
other employees were around, the Deputy Commander asked him about his
disabilities, which made him uncomfortable because of all the people around so he
kept his answer general, saying something about “digestive issues and stress-related
issues,” and the Deputy Commander kept saying things like “I got that too but I can
come to work,” which Complainant felt was implying a threat when considered in
the context of the Supervisor talking about needing “butts in the seat.” See ROI at
409-10. He stated that he feels like people with disabilities “have no place” at the
facility because leadership did not seem to like people who have a disability or are
on a reasonable accommodation. 	See ROI at 418. 	He acknowledged that his
accommodation has not been denied, only that the Deputy Commander has “take[n]
a negative tone” about his reasonable accommodation. See ROI at 415-16.
The Deputy Commander retired prior to the investigation and was not able to be
reached for an affidavit. The Supervisor stated that to his recollection, the Deputy
Commander only made a general comment about the high number of reasonable
accommodations in their command and the need to review and request updates on
their status so that they could better manage the individual’s capabilities to support
the mission. 	See ROI at 508. 	The Agency conducted an immediate internal
investigation into Complainant’s allegations against the Commander and the Deputy
Commander and concluded that Complainant’s allegations were not substantiated.
See ROI at 309. 	The internal investigation found that there was no evidence that
any organization leaders had shared any confidential information and the Deputy
Commander explained that he only reviewed and addressed high LWOP numbers at
the organization and established process reviews with the EEO supervisors to ensure
that reasonable accommodations were processed in a timely manner. 	See ROI at
315. The internal investigation noted that there were some performance issues with
the HR Specialist who handled reasonable accommodation requests that were being
addressed. The internal investigation further found that the Deputy Commander did
not have any authority to deny Complainant’s accommodation but noted that the
Deputy Commander acknowledged that he indicated that he wanted to discuss some
things with the HR Specialist to validate or approve Complainant’s accommodation.
See ROI at 316.

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The internal investigation also found that there was no evidence of anyone’s
confidential medical information being shared but that the Deputy Commander
acknowledged having a meeting where he addressed the organization’s 14,000 hours
of LWOP not related to the Family and Medical Leave Act and discussing the need
for people to be at work. 	See ROI at 317. 	However, one of Complainant’s
coworkers stated that he recalled being at a meeting where the Deputy Commander
commented on Complainant’s medical conditions and implied that Complainant was
“soft” because the Deputy Commander had the same thing and you had to learn to
deal with it. See ROI at 558.
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, 	which
Complainant opposed. The AJ granted the Agency’s motion and issued a decision
by summary judgment in favor of the Agency, finding no discrimination.
The Agency subsequently issued a final order fully implementing the AJ’s finding
that Complainant failed to prove that the Agency subjected him to discrimination as
alleged. The instant appeal followed.
On appeal, Complainant argues that the AJ erred by not permitting him more
discovery because he was not given access to all his emails and insists that there are
credibility issues because the record shows that management showed hostility to
reasonable accommodations as a concept that led to Complainant’s poor treatment.
In response, the Agency urged that the AJ’s decision be affirmed because the factual
disputes that Complainant identified were not material.
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

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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 offered no evidence to support his assertions that the
management officials are not credible. 	It is well settled that mere assertions of a
factual dispute without more are not sufficient to defeat a motion for summary
judgment. 	See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 10200181833
(July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No.
0120112994 (May 21, 2013). 	We also reject Complainant’s argument that the AJ
erred by not permitting him additional discovery. AJs have broad discretion in the
conduct of hearings, including discovery and the determination of whether to admit
evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. §
1614.109(e); Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO-MD-110), at Ch. 7 (Aug. 5, 2015). Complainant did not specifically
explain why the information that was not in the record would have been relevant and
material to create a genuine issue of material fact. 	Complainant’s bare assertion
without more that he should have had the opportunity for further discovery is not
sufficient to establish that discovery was insufficient. See Dow v. Dep’t of
Homeland Sec’y, EEOC Appeal No. 0120112629 (Oct. 11, 2011).

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Upon our review of the record, we find that the AJ correctly determined that
Complainant failed to establish a dispute of material fact and properly granted
summary judgment.
We further find that the record does not support Complainant’s assertions that he
was subjected to disparate treatment. 	There is no evidence in the record beyond
Complainant’s unsupported assertions to indicate that he was treated less favorably
than other employees. 	While Complainant insists that his performance rating was
unfair, he offered nothing more than his own subjective assessment of his own
performance and his unsupported insistence that he was rated for tasks he was no
longer performing. Complainant’s subjective assessment of his own performance is
not sufficient to establish pretext. 	See Trent M. v. Dep’t of Commerce, EEOC
Appeal No. 2022000776 (Nov 2, 2022) (stating that a complainant’s subjective
assessment of his own performance or repeated assertions of his belief that his
supervisor’s evaluation of his performance was unfair is not sufficient without more
to establish pretext). In addition, we note that the mere fact that Complainant may
have 	received 	higher 	performance 	appraisals 	in 	the 	past 	does 	not 	establish
discriminatory animus as the Commission has stated that an agency is under no
obligation to continue giving a complainant the same performance rating as before.
See Margaret M. v. Dep’t of Veterans Affs., EEOC Appeal No. 2022003019 (Nov.
9, 2022).
We further find that Complainant did not establish that he was subjected to unlawful
harassment. 	We find that most of the alleged incidents of harassment amount to
nothing more than routine work assignments, instructions, and admonishments
which the Commission has repeatedly stated do not rise to the level of unlawful
harassment. 	See Doloris W. v. U.S. Postal Serv., EEOC Appeal No. 2024003166
(Aug. 4, 2025). 	At best, the record indicates that the Commander and the Deputy
Commander may have made some comments which Complainant subjectively found
to 	be 	offensive 	and 	which 	may 	have 	indicated 	a 	lack 	of 	sympathy 	with
Complainant’s medical conditions. However, Complainant’s subjective perceptions
and feelings are not sufficient to establish an unlawful hostile work environment.
See Mattson v. Dep’t of Homeland Sec’y, EEOC Appeal No. 0120052563 (July 3,
2007) (stating that a hostile work environment is established by an objective standard
and not a complainant's subjective perceptions). 	Moreover, we note that while
Complainant’s coworker confirmed that the Deputy Commander made a general
comment about Complainant’s medical conditions, the coworker acknowledged that
any negative implication about Complainant was only “implied” and there is no

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evidence 	that 	the 	Deputy 	Commander 	specifically 	identified 	Complainant’s
condition or disclosed any confidential information. 	While such a comment may
well have been insensitive, the record indicates that it was a single incident and as a
general rule, “simple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms or
conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998). It is well-established that Title VII is not a civility code but rather forbids
“only behavior so objectively offensive as to alter the conditions of the victim's
employment.” 	See 	Carl 	T. 	v. 	Social 	Security 	Admin., 	EEOC 	Appeal 	No.
2022000277 (Jan. 5, 2023).
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.
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.

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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. 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.

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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