EEOC Appeal 2025003573

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Garland C.,1
Complainant,
v.
Hung Cao,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 2025003573
Hearing No. 480-2023-00505X
Agency No. 23-62478-00246
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
June 18, 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
Industrial Utilities Production Supervisor, WS-4701-10, at the Agency’s Naval
Facilities Engineering Systems Command in Honolulu, Hawaii.
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 16, 2023, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the basis of disability (mental) and in reprisal
for prior protected EEO activity when:
a) 	on 	January 	31, 	2023, 	management 	announced 	that 	the 	selectee
(Selectee) was selected for the permanent promotion to the Utilities
Manager, GS-1601-13 position five months after the recruitment
announcement 	was 	posted 	on 	USAJobs; 	and 	management
acknowledged in the email that the Selectee had been instrumental in
his 120-day detail in the position at issue;
b) 	on November 16, 2022, Complainant learned of his non-selection for
the Utilities Manager, GS-1601-13 position, Announcement No. ST-
11591510-22-DCM;
c) 	Complainant was not afforded the opportunity to be interviewed by the
Selection Panel;
d) 	Because his first-line supervisor (the Supervisor) had been teleworking
since February 2022, he was unaware that both the Supervisor and the
Selectee “double-stuffed” in the Supervisor’s position and, thus, the
Selectee was able to fully benefit from the Supervisor’s tutelage, which
gave him an unfair advantage to compete for the position at issue;
e) 	on a date not specified, Complainant learned that the Selectee was non-
competitively promoted for 120 days to the Utilities Manager, GS-
1601-13, 	position 	resulting 	in 	Complainant 	being 	denied 	the
opportunity to gain experience and to demonstrate his capability and
potential had he been afforded the same opportunity;
f) 	on September 25, 2022, one hour before the announcement closed, the
Supervisor contacted Complainant to inform him about the 120-day
temporary promotion opportunity for the Utilities Manager, GS-1601-
13, position and to apply if he was interested;
g) 	on September 13, 2022, a few hours before the announcement closed,
the Supervisor contacted Complainant to tell him that he was retiring
and will be making a selection for his permanent backfill. Complainant

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feels he was purposely kept out of the loop about the Supervisor’s
impending retirement; and
h) 	both the temporary and permanent back-fill actions for the Utilities
Manager, GS-1601-13, position were advertised for competition but the
Supervisor made a non-competitive selection for the temporary back-
fill while he was in the process of retiring.
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
Agency initially moved for summary judgment, which was denied when the parties
learned that the Supervisor, who had previously been believed to be deceased, was
available to provide evidence. The AJ permitted Complainant to conduct limited
written discovery and to depose the Supervisor. The AJ also directed the Agency to
supplement the record with a completed declaration from the Supervisor. Following
this, the Agency filed a renewed motion for summary judgment. Complainant filed
an opposition, and the Agency replied.
On May 9, 2025, the AJ issued a summary judgment decision. The AJ determined
that the investigative record was adequately developed and that there were no
genuine disputes of material fact requiring a hearing. The AJ further found that the
Agency articulated legitimate, nondiscriminatory reasons for the challenged actions.
Regarding claims (a), (b), and (c), the AJ determined that Complainant was not
interviewed because he did not make the top three candidates list, noting that
Complainant scored 29 points and was ranked sixth. The Selectee’s resume detailed
specific projects and experience in management. Conversely, the panel determined
that 	Complainant’s 	resume 	was 	general 	and 	devoid 	of 	specifics 	that 	would
demonstrate that he was the best fit. Regarding claims (e) and (h), the Supervisor
chose the Selectee due to his leadership, communication, and technical experience,
including a recent temporary position as the Industrial Commodities Manager.
Regarding claims (d), (f), and (g), the AJ determined that there was no evidence that
the Supervisor provided tutelage to the Selectee; that the Supervisor was within his
managerial discretion to non-competitively select the Selectee for a temporary
position; and that the Agency was under no obligation to inform Complainant when
positions might be available.

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The AJ further determined that Complainant failed to present sufficient evidence to
establish that those reasons were pretext for discrimination or reprisal. The Agency
subsequently issued a final order fully implementing the AJ’s decision. The instant
appeal followed.
ANALYSIS
The Commission’s regulations allow an AJ to grant summary judgment when he or
she finds 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); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact
is “material” if it has the potential to affect the outcome of the case. 	In rendering
this appellate decision, we must scrutinize the AJ’s legal and factual conclusions,
and 	the 	Agency’s 	final 	order 	adopting 	them, 	de 	novo. 	See 	29 	C.F.R. 	§
1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall
be based on a de novo review…”); see also Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (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).
Upon review of the record, we find that Complainant failed to establish that the
Agency’s actions were based on his protected classes or in reprisal. Moreover, we
find that the Agency articulated legitimate, nondiscriminatory reasons for the
challenged actions. Specifically, Complainant ranked sixth out of eleven candidates
and only the highest three were interviewed; that management was within its
discretion to non-competitively appoint the Selectee to a temporary detail; and that
management was under no obligation to inform Complainant of position availability.
Although 	Complainant 	disagrees 	with 	management’s 	actions 	and 	decisions,
disagreement with management’s judgment does not establish discrimination.
Additionally, we acknowledge Complainant’s assertion that he had more than 20
years of relevant experience, but we note that years of experience does not, by itself,
establish that a complainant’s qualifications were plainly superior.
With 	respect 	to 	reprisal, 	Complainant 	has 	not 	established 	that 	the 	officials
responsible for the permanent selection knew of his prior protected activity. The
three panel members and the Selecting Official stated that they were unaware of, or
could not recall, Complainant’s prior EEO activity.

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Complainant has not identified evidence contradicting their testimony or showing
that the Supervisor influenced the panel’s scoring or recommendation.
Lastly, we note that Complainant asserted that a former management official
commented that he filed too many EEO complaints and that the complaints were
lies. Even assuming the comment was made, the official to whom Complainant
attributed the comment left the Agency in June 2022 and was not involved in the
actions at issue herein. Additionally, Complainant has not shown that the official
communicated retaliatory information to the Supervisor, the selection panel, or the
selecting official. Therefore, the comment does not create a genuine dispute
concerning the motivation of the officials responsible for the challenged actions.
CONCLUSION
Based on the foregoing, 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. 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).

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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.
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

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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 17, 2026
Date