EEOC Appeal 2026000281

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
April T.,1
Complainant,
v.
Douglas A. Collins,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2026000281
Agency No. 2004-565-2024-160668
DECISION
On November 14, 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 	November 	14, 	2025, 	final 	decision 	(FAD)
concerning 	her 	equal 	employment 	opportunity 	(EEO) 	complaint 	alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. § 2000e et seq. 	For the following reasons, the
Commission AFFIRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a
Histopathology Technologist at the Agency’s Pathology and Laboratory Medicine
Service at the VA Medical Center (VAMC) in Fayetteville, North Carolina.
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.

2026000281	2
On August 30, 2024, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of reprisal for prior protected EEO
activity under an EEO statute that was unspecified in the record when:
1. 	On April 2, 2024, Complainant was issued a written counseling.
2. 	On May 17, 2024, when Complainant attempted to explain why she
performed a task incorrectly, her supervisor abruptly cut her off and
said, “that’s no excuse, whatever you have to say is irrelevant.”
3. 	On May 17, 2024, Complainant’s supervisor denied Complainant’s
request for training and stated to Complainant, “Retraining is not an
option.”
4. 	On May 21, 2024, Complainant was issued a written performance
counseling.
5. 	On 	May 	24, 	2024, 	when 	Complainant 	requested 	help 	during 	a
procedure, her supervisor told Complainant, “This is not a teaching
institution/environment, and this not histology 101.”
6. 	On July 9, 2024, Complainant’s supervisor found small items to
correct to intimidate Complainant during a meeting and stated, “I will
not be embarrassed, or it’s going to be a problem,” and “This is not a
lecture, 	and 	no 	one 	should 	be 	writing 	down 	anything,” 	while
Complainant was taking notes.
7. 	From July 18 - July 22, 2024, Complainant’s supervisor did not
recognize Complainant for the additional work she did during the
week to cover the shift for two coworkers that were out.
8. 	On August 1, 2024, Complainant’s supervisor gave Complainant a
memorandum 	to 	recap 	a 	verbal 	counseling 	discussion 	with
Complainant.

2026000281	3
9. 	On 	August 	2, 	2024, 	Complainant’s 	supervisor 	singled 	out
Complainant 	when 	she 	questioned 	her 	about 	why 	there 	were
specimens in the bin.
10. 	On August 2, 2024, Complainant’s supervisor stated to Complainant,
“Before you go to the union, finish your work first” and called
Complainant a child and disrespectful.
11. 	On 	August 	22, 	2024, 	Complainant 	was 	terminated 	during 	her
probationary period.
At the conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation and notice of her right to request a hearing
before an Equal Employment Opportunity Commission Administrative Judge (AJ).
In accordance with Complainant’s request, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination as alleged.
The instant appeal followed.
On appeal, Complainant submitted a copy of the affidavit she provided during the
investigation. In response to Complainant’s appeal, the Agency asserts that the
FAD correctly found that Complainant failed to present evidence that she was
subjected to a hostile work environment based on reprisal for prior EEO activity
and asks that it be affirmed.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), 	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, at Chapter 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

2026000281	4
submissions of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
ANALYSIS
As an initial matter, we note that Complainant raised both discrete acts of
discrimination and a claim that she was subjected to a hostile work environment.
The Commission has found that a discrete action states a claim outside the
framework 	of 	harassment 	analysis 	and 	can 	also 	be 	reviewed 	as 	disparate
treatment. See Moylett v. U.S. Postal Serv., EEOC Appeal No. 0120091735 (Jul.
17, 2012); Sedlacek v. Dep't of Army, EEOC Appeal No. 0120083361 (May 11,
2010). 	Because 	certain 	of 	Complainant's 	allegations 	could 	alternatively 	be
interpreted as discrete acts of disparate treatment and harassment, we will begin the
analysis, as the Agency did in the FAD, with a focus on the discrete acts of
discrimination before turning to an analysis of Complainant's overarching claim
that the Agency created a hostile work environment based on her prior EEO
activity.
Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie
case by demonstrating that he/she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination. 	Furnco
Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. 	McDonnell Douglas, 441 U.S.
at 802 n.13. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a
preponderance of the evidence, that the agency’s explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
(2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Here, Claims 1, 4, and 8 (written counseling), 3 (denial of training), and 11
(termination) raise discrete acts of disparate treatment.2
2 The FAD only analyzed Claims 8 and 11 under a disparate treatment framework.

2026000281	5
However, 	Complainant 	acknowledged 	during 	the 	investigation 	that 	her 	first
protected EEO activity occurred, at the earliest, on August 2, 2024, when she
complained to her Union Representative of harassment in an email and on the
advice of her Union Representative, forwarded the email to the EEO Program
Manager. 	She therefore failed to establish a prima facie case of retaliation with
regard to the incidents described in Claims 1, 3, 4, or 8, all of which occurred
before Complainant’s protected EEO activity.
Assuming that Complainant established a prima facie case of retaliation for Claim
11, the Agency articulated a legitimate non-discriminatory reason for terminating
Complainant during her probationary period. Specifically, the Agency asserted
that, as described in the August 20, 2024, notice, Complainant was terminated “for
failure to qualify during her probationary period ... due to unacceptable conduct.”
Complainant’s supervisor (S)1 explained that she had issued Complainant written
or verbal counseling on five occasions between April 2 and August 2, 2024, for
performance-related errors, including an error that “put a patient’s life at risk.” She
further explained that Complainant did not demonstrate the level of competency
expected at her grade level, despite receiving counseling and being “retrained.”
After a de novo review of the record, we find that Complainant failed to establish
that this explanation is a pretext for retaliation. Although Complainant asserted that
she was terminated without warning and that S1 refused to provide her with
assistance when she asked for it, she did not dispute that she had committed the
performance errors that were described in her termination notice nor offer any
evidence, other than her own belief, that her prior EEO activity, rather than the
explanation provided in the termination notice, motivated her termination.
In 	these 	circumstances, 	we 	find 	that 	Complainant 	failed 	to 	establish 	by 	a
preponderance of the evidence that she was subjected to retaliation based on
Claims 1, 3, 4, 8 or 11.
Harassment
To prevail on a claim of retaliatory harassment, a complainant must show that she
was subjected to conduct sufficient to dissuade a “reasonable person” from making
or supporting a complaint of discrimination because she has engaged, or may
engage, in activity in furtherance of the EEO laws the Commission enforces and
that the conduct was motivated by prior protected EEO activity. See Burlington N.

2026000281	6
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement
Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, §§
II(B)(3), (C), & n. 137 (Aug. 25, 2016).
As noted above, Complainant failed to establish that the incidents described in
Claims 1, 3, 4, 8, or 11 were based on her prior protected activity and these
incidents 	therefore 	will 	not 	be 	considered 	when 	analyzing 	Complainant’s
overarching claim of retaliatory harassment. Moreover, the incidents described in
claims 2, 5, 6, and 7 occurred prior to Complainant’s protected EEO activity and
thus could not have been based on that activity.
Turning, then, to claims 9 and 10, Complainant failed to establish that the
incidents, even if they occurred as she alleged, were based on her prior EEO
activity. First, we note that these events took place on August 2, 2024, the very day
on 	which 	Complainant 	first 	engaged 	in 	protected 	EEO 	activity. The 	record
suggests that it was these incidents that led Complainant to email her Union
representative raising her claim that S1 was harassing her. In other words, it
appears 	that 	the 	incidents 	described 	in 	Claims 	9 	and 	10 	occurred 	prior 	to
Complainant’s protected EEO activity and therefore could not have been based on
that 	activity. 	But 	even 	assuming 	that 	the 	email 	about 	harassment 	was 	sent
immediately prior to these events, Complainant did not offer any evidence, beyond
her own assertion, that the incidents were based on her prior EEO activity.
Claims 9 and 10 both involve an incident that occurred on August 2, 2024. 	The
record establishes that on this day S1 questioned Complainant about why the red
drop-off bin in the lab in which Complainant worked had several biohazard bags in
it at a time of day when it would usually be empty because samples in it should
have been be dealt with before pathologists arrived (and before other work was
begun). S1 asserted that when asked about this situation, Complainant stated, “I
wanted to let you know that I am going to the Union on you,” walked off mid-
conversation, and continued to refuse to complete the assignment, yelling “Don’t
talk to me” and otherwise reacting with hostility. Although Complainant asserted
that S1 singled her out, raised her voice during the incident, called Complainant a
child, 	and 	disrespected 	her 	(allegations 	which 	S1 	denies), 	Complainant
acknowledged that she also raised her voice and that she made the decision to
finish the work she was doing before doing the work that S1 indicated needed to be
done first.

2026000281	7
Other than her own assertion that it was her prior EEO activity that motivated S1,
Complainant offered no evidence to suggest that the incidents were based on
retaliation, 	rather 	than 	a 	disagreement 	about 	what 	assignment 	should 	take
precedence and Complainant’s reaction to S1’s questioning. Complainant therefore
failed to establish by a preponderance of the evidence that these incidents were
retaliatory.
Based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we therefore AFFIRM the Agency’s
finding of no discrimination.
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).
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.

2026000281	8
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
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.

2026000281	9
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 16, 2026
Date