EEOC Appeal 2026000790

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Anya F.,1
Complainant,
v.
Douglas A. Collins,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2026000790
Hearing No. 490-2024-00002X
Agency No. 200I-626-2023-151089
DECISION
On December 31, 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 December 22, 2025, final decision 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. and 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 decision.
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
Registered 	Dental 	Hygienist, 	GS-9, 	at 	the 	Agency’s 	VA 	Tennessee 	Valley
Healthcare 	System 	(TVHS) 	Alvin 	C. 	York 	VA 	Medical 	Center 	facility 	in
Murfreesboro, Tennessee.
On May 5, 2023, Complainant filed a formal complaint alleging that the Agency
subjected her to a hostile work environment on the bases of disability (physical and
mental) and reprisal for prior protected EEO activity (current and prior EEO
activity) when:
1. On November 22, 2022, management denied Complaint breaks, to include
lunch.
2. On November 23, 2022, a supervisor said she wished the Agency "knew of
Complainant’s disability before they hired" Complainant, or words to that
effect.
3. On December 5, 2022, unauthorized employees accessed Complainant's
medical records.
4. On January 13, 2023, management 	blocked provider appointments 	for
mandatory training but failed to block Complainant's schedule, causing her
to miss the training.
5. On January 30, 2023, during a meeting with a supervisor and a staff Dentist,
in which they discussed the unauthorized access of Complainant's medical
records, the supervisor yelled out, “Well you need to get over it.”
6. Since 	February 	1, 	2023, 	management 	failed 	to 	provide 	and/or 	denied
Complainant's requests for reasonable accommodation.
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).
Complainant timely requested a hearing but subsequently withdrew her request.
The AJ dismissed the hearing request on June 16, 2025, and ordered the Agency to
issue a final agency decision (FAD) in a timely manner.
On December 10, 2025, Complainant’s attorney representative emailed EEOC an
appeal while acknowledging that the Agency had not issued a FAD in the matter.

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Complainant contended on appeal that she was “forced to conclude that the
Agency’s failure to issue the decision suggests that the Agency had decided in its
own favor, despite providing no decision or analysis to support the apparent
findings.” 	(Complainant 	Appeal 	Filing, 	p. 	9). 	The 	appeal 	was 	docketed 	on
December 31, 2025.
Meanwhile, on December 22, 2025, 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 or a hostile work environment as
alleged. Regarding Complainant’s claim for failure to accommodate, the Agency
acknowledged that Complainant was an individual with a disability and qualified
within the meaning of the regulations. However, they found Complainant had not
met her burden to prove she was denied an effective reasonable accommodation.
Regarding Complainant’s claim for a violation of her medical privacy, the Agency
found that the evidence did not establish that anyone accessed records containing
Complainant’s specific medical condition, diagnosis, or symptoms, and therefore
Complainant had not demonstrated a per se violation of the Rehabilitation Act. As
for Complainant’s harassment claim, the Agency found that Claims 3 and 6 could
not 	be 	part 	of 	Complainant’s 	overall 	harassment 	claim 	given 	the 	foregoing
determination that these incidents were not motivated by discriminatory animus.
As for the remainder of the claims, the Agency found that these incidents had
either not occurred as alleged, were not motivated by discrimination, and/or were
not sufficiently severe or pervasive to alter the conditions of Complainant’s
employment. Therefore, Complainant had not established that she was subjected to
a hostile work environment within the meaning of the law. Complainant then filed
the instant appeal.
Complainant did not file a new or supplemental brief after the Agency issued its
FAD, but her initial appeal filing addressed the merits of her complaint. On appeal,
Complainant, among other things, argues that she was subjected to a hostile work
environment based on her protected classes. Complainant states she belongs to a
protected class based on his disability and prior EEO activity, she was subjected to
harassment based on her disability, the harassment impacted the conditions of her
employment, and the Agency was aware of the harassment and failed to stop it.

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Complainant argues the Agency’s reasons for its actions are pretext, as shown by
the fact that the Agency did not provide Complainant accommodations that were
agreed upon, the Agency never addressed the lasting impact of inappropriate
access to her medical records, and the Agency’s actions in denying that statements
were made about her disability reflects the attitude shown in those comments. We
will address Complainant’s arguments below.
The Agency, in pertinent part, argued that its final decision should be affirmed.
The Agency disputed specific paragraphs in Complainant’s appellate Statement of
Facts, arguing that they are not supported by the record. For example, Complainant
asserted in Paragraph 8 that she was unable to take a lunch break and that the
maximum number of allowable patients per day was seven. However, the Agency
states this is not supported by the patient records which document check in and
check out times, as well as the times that Complainant entered patient notes into
the medical record. The Agency believes that for those reasons and the reasons
stated in the FAD, the FAD should be affirmed.
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
submissions of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
At the outset, we note that while Complainant’s appeal was filed prematurely
(prior to the issuance of a final agency decision), this was cured when the Agency
issued a FAD shortly thereafter.2 We agree with the Agency that Complainant was
not unduly prejudiced by the Agency’s delay in issuing a FAD.
2 We have generally held that where a premature appeal has been filed and the
Agency subsequently issues a final action while the appeal remains pending, the
issuance of the final agency decision cures the defect and makes the appeal ripe for
adjudication. See Franchesca V. v. Dep't of the Treasury, EEOC Appeal No.

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Failure to Accommodate (Claim 6)
Complainant alleged that she was denied a reasonable accommodation when the
Agency denied her request to see fewer patients per day and offered alternative
accommodations that were not effective. 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 she was denied
a reasonable accommodation, Petitioner must show that: (1) she is an individual
with a disability as defined by 29 C.F.R. § 1630.2(g); (2) she 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 Agency does not dispute that Complainant is an individual with a disability, or
that she is qualified. However, Complainant requested that, as a reasonable
accommodation, she be scheduled to see six patients a day instead of seven
patients. (ROI, p. 160). An essential function of her position as a Dental Hygienist
is seeing and treating patients. Chief attested that policy is to schedule Dental
Hygienists to see seven patients per day and Dental Hygienists are required to see
at least 5.6 patients per day on average during the rating period as a critical
element of performance, regardless of cancellations. (Hearing File, Ex. 10, pp. 4-
5). The law does not require an agency to remove essential functions through the
reasonable accommodation process. Lynette B. v. Dep't of Justice, EEOC Appeal
No. 2019003392 (Aug. 25, 2022). We also note that agencies are not obligated to
lower 	the 	performance 	standards 	of 	a 	position 	through 	the 	reasonable
accommodation process. See Johnson v. Dep't. of the Interior, EEOC Petition No.
03940100 (March 29, 1996) (“employers do not have to excuse the violation of
uniformly-applied conduct or job performance standards as a form of reasonable
accommodation”). If Complainant cannot see seven patients per day, then she
cannot perform her job with or without a reasonable accommodation.
0120150620 (Mar. 24, 2017); Complainant v. Dep't of Veterans Affs., EEOC
Appeal No. 0120120712 (June 18, 2014).

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However, even assuming Complainant is qualified, her request to see fewer
patients per day is not reasonable since it would require the Agency to lower
performance 	standards. 	Complainant 	has 	not 	shown 	that 	the 	alternative
accommodations provided by the Agency were ineffective. Complainant’s treating
physician stated that Complainant “can perform all work-related functions as long
as she receives adequate break time” and that Complainant “needs to see 6 (six)
patients per day instead of 7 (seven) so that she can have adequate time to drink
water and use the restroom.” (ROI, pp. 98-99). Thus, the specific accommodations
needed involve breaks and are not necessarily related to patient care. The Agency
granted Complainant the following alternative accommodations:
1. A 30-minute break mid-morning, a 30-minute break at lunch, and a 30-
minute break at the end of the day;
2. Ability to break from patient care at any time if needed for a short rest;
3. Coordination with dental staff regarding support and specific needs during
the day such as radiographs for patient exams.
4. Ability to utilize 120-minute appointments on occasion for difficult patients
or patients who require extra attention.
5. Limit face-to-face time with the patient to 45-50 minutes and allow 10-15
minutes for clean up and notes at the end of the 60-minute appointment.
Complainant admits that accommodations 1 and 4 were provided and that 5 was
previously being done and was still happening. However, she states that 3 was not
provided. However, this is not supported by the record, which reflects that
Complainant chose not to avail herself of help. (ROI, p. 100). Protected individuals
are entitled to reasonable accommodation, but they are not necessarily entitled to
their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No.
01931005 	(Feb. 	17, 	1994). 	The 	agency 	may 	choose 	among 	reasonable
accommodations 	as 	long 	as 	the 	chosen 	accommodation 	is 	effective. 	Here,
Complainant has not shown that the alternative accommodations were ineffective
and therefore she has not met her burden to show she was denied a reasonable
accommodation.
Medical Privacy (Claim 3)
Complainant 	alleged 	that 	the 	Agency 	violated 	the 	Rehabilitation 	Act 	when
coworkers improperly viewed her medical information and the Agency failed to
take 	action. 	Section 	102(d) 	of 	the 	Americans 	with 	Disabilities 	Act 	and 	by

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extension Section 501(g) of the Rehabilitation Act require employers to treat all
information obtained regarding the medical condition or history of an employee as
confidential medical records. 42 U.S.C. §§ 12112(d)(3)(B), (4)(C); 29 C.F.R. §
1630.14(b)(1). Improper agency disclosure of such medical information constitutes
a per se violation of the Rehabilitation Act. Valle v. U.S. Postal Serv., EEOC
Request No. 05960585 (Sept. 5, 1997), See, e.g. Linn L. v. Dep't of the Army,
EEOC Appeal No. 2021002626 (Sept. 13, 2022) (per se violation of Rehabilitation
Act 	found 	where 	the 	director 	emailed 	the 	executive 	officer 	indicating 	that
complainant 	was 	diagnosed 	with 	migraines 	and 	received 	a 	reasonable
accommodation).
Here, we find there was no per se violation of the Rehabilitation Act because the
record reflects that some of the records were accessed at Complainant’s direct
request and that while there was unauthorized access as well, the records involved
Complainant’s appointment schedule and VA Disability Rating but the record does
not show that any of the accessed records contained Complainant’s specific
medical condition, diagnosis, or symptoms. As such, while a violation of Agency
policies occurred, there was no violation of the Rehabilitation Act.
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 804 n.14. 	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).

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Even assuming Complainant established a prima facie case for disparate treatment
based on disability, and in reprisal for prior protected EEO activity, we find the
events either did not occur as alleged or the Agency articulated legitimate,
nondiscriminatory reasons for its actions. In Claim 1, Complainant alleged that she
was scheduled for eight patients on November 22, 2022, and was unable to take a
break during her entire shift. However, RMO-1 stated that she never denied
Complainant a break. (ROI, p. 111). Complainant later admitted that she was not
denied a break in response to a request for a break, but instead felt she was
“passively denied” a break when the front desk scheduled her for eight patients to
make up for patients that were rescheduled during surgery. (ROI, p. 79). Thus, we
find Claim 1 did not occur as alleged. Regarding Claim 2, Complainant states that
RMO-1 said “Wow, I wish we would have known about your disabilities before
we hired you.” RMO-1 denies making the refenced comment (ROI, p. 112) and
Complainant has produced no evidence to corroborate her testimony regarding this
comment. Regarding Claim 3, as noted above, one of the employees accessed
records at Complainant’s request. However, all three employees were investigated
by the Privacy Officer who issued a report with recommendations. RMO-1 stated
that she verbally counseled the employees, and a written counseling was issued to
the employees. (Hearing File, Ex. 10, p. 8). Regarding Claim 4, Complainant
alleged that she was the only Dental Hygienist scheduled to see patients during
training 	that 	day 	and 	therefore she 	missed 	the training. RMO-1 	stated 	that
Complainant’s schedule was not blocked off due to an oversight and that moving
forward she ensured all future trainings were blocked off. (ROI, p. 113). Regarding
Claim 5, Complainant alleged that RMO-1 yelled that she needed to “get over” the
unauthorized access of her records (the incident in Claim 3). However, RMO-1
denied 	yelling 	or 	making 	this 	statement. 	RMO-1 	did 	admit 	that 	she 	told
Complainant that the employees were properly counseled and Complainant needed
to “move on.” (ROI, p. 114). Staff Dentist 1 stated that RMO-1 was calm and
balanced and her voice did not rise above conversational level during this incident,
whereas Complainant appeared agitated and raised her voice. (ROI, p. 123).
Regarding Claim 6, as discussed above, Complainant was denied her requested
accommodation because it would require a lowering of performance standards and
offered alternative accommodations instead.
We note that the burden is on Complainant to establish that the events occurred as
alleged and where the evidence is in equipoise, as it is in many of the claims here,
Complainant cannot meet that burden. See Avery R. v. Dep't of the Army, EEOC
Appeal No. 2021002710 (Aug. 10, 2022); see also Brand v. Dep't of Agric., EEOC

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Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his
coworker made offensive comments in a “he said, she said” situation where
complainant requested a final decision and an Administrative Judge did not make
credibility determinations). In this case, the AJ denied the Agency’s Motion for
Summary Judgment on the grounds that a hearing was needed for credibility
determinations on the statements made by RMO-1, but Complainant chose to
withdraw her hearing request and forego those credibility determinations.
Regardless, Complainant did not show that any of the reasons given for the actions
that 	did 	occur 	were 	pretext 	for 	discrimination 	or 	retaliation 	based 	on
Complainant’s disability or prior protected EEO activity. The record is devoid of
any evidence of discriminatory or retaliatory animus on the part of the Agency
beyond Complainant's speculative beliefs. Mere assertions or conjecture that an
agency's explanation is a pretext for intentional discrimination is insufficient
because subjective belief, however genuine, does 	not 	constitute evidence of
pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8,
2019); Richardson v. Dep't of Agriculture, EEOC Petition No. 03A40016 (Dec. 11,
2003). The pretext inquiry is not concerned with bad judgment, impeccability,
dislike, or a mistake. Marvin W. v. Dep't of Homeland Sec., EEOC Appeal No.
0120170438 (Dec. 12, 2018). Here, at least one incident (Claim 4) arose from a
mistake. Further, at all times the ultimate burden of persuasion remains with
Complainant to demonstrate by a preponderance of the evidence that the Agency
was motivated by prohibited discrimination. Complainant has not done so here.
Therefore, we find Complainant was not subjected to disparate treatment.
Hostile Work Environment
As for Complainant’s claims of a hostile work environment, Complainant must
establish that she was subjected to conduct that was either so severe or so
pervasive that a “reasonable person” in Complainant's position would have found
the conduct to be hostile or abusive. Complainant must also prove that the conduct
was taken because of a protected basis; in this case his disability, age, or protected
EEO activity. Only if Complainant establishes both of those elements – hostility
and motive – will the question of Agency liability present itself.
For a retaliatory harassment claim, the alleged retaliatory actions need not impact a
term, condition, or privilege of employment. See Burlington Northern and Santa Fe
Railway Co. v. White, 548 U.S. 53 (2006).

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A complainant need only show that a materially adverse action “well might have
dissuaded 	a 	reasonable 	worker 	from 	making 	or 	supporting 	a 	charge 	of
discrimination.” Id., 548 U.S. at 68. The Commission's guidance states if the
conduct would be sufficiently material to deter protected activity in the given
context, even if it were insufficiently severe or pervasive to create a hostile work
environment, there would be actionable retaliation. EEOC Enforcement Guidance
on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016).
While 	Complainant 	has 	alleged 	a 	hostile 	work 	environment, 	we 	find 	that
Complainant has not shown that any of the complained of conduct was based on er
protected 	bases: 	disability 	or 	prior 	protected 	EEO 	activity. 	A 	finding 	of 	a
discriminatory 	or 	retaliatory 	hostile 	work 	environment 	is 	precluded 	by 	our
determination that Complainant failed to establish that any of the actions taken by
the Agency were motivated by discriminatory or retaliatory animus. See Oakley v.
U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
Therefore, based on our review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency’s final
decision finding 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.

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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.

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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 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 14, 2026
Date