EEOC Appeal 2026002784

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Demetria L,1
Complainant,
v.
Douglas A. Collins,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2026002784
Agency No. 2003-549-2026-171001
DECISION
Complainant 	filed 	a timely 	appeal 	with the Equal Employment 	Opportunity
Commission (EEOC or Commission) from the Agency's decision (FAD) dated
May 1, 2026, dismissing her complaint of unlawful 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. 	Upon review, the Commission finds that Complainant's
complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim.
At the time of events giving rise to this complaint, Complainant worked as a
Massage Therapist, GS-08, at the Agency’s Clinic in Dallas, Texas. On March 20,
2026, Complainant filed a formal complaint alleging that the Agency subjected her
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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to discrimination on the basis of reprisal2 for prior protected EEO activity under an
EEO statute that was unspecified in the record when:
1. On February 11, 2026, a Supervisor charged Complainant with 16 hours of
being Absent Without Leave (AWOL) for January 27 and 28, 2026.
The FAD dismissed the complaint for failure to state a claim, finding that
Complainant had not identified any prior protected activity to support a claim of
reprisal, but instead was alleging that the Agency’s action was in retaliation for her
disagreement with management over a prior incident involving inclement weather.
The FAD further noted that the Formal complaint notified Complainant of the need
to specify the prior protected activity that allegedly led to the reprisal, and had
numerous opportunities to provide such information, but failed to do so.
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an
agency shall dismiss a complaint, or portion thereof, that fails to state a claim. An
agency shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against by that
agency because of race, color, religion, sex, national origin, age or disabling
condition. 29 C.F.R. § 1614.103; § 1614.106(a). The Commission's federal sector
case precedent has long defined an “aggrieved employee” as one who suffers a
present harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Complainant v. Dep't of the Air Force, EEOC
Request No. 05931049 (Apr. 21, 1994); Complainant v. United States Postal Serv.,
EEOC Appeal No. 2019000974 (Apr. 26, 2019).
Where a complainant has asserted that she was subjected to unlawful retaliation for
her prior protected activity, the Commission has stated that adverse actions need
not qualify as “ultimate employment actions” or materially affect the terms and
conditions of employment to constitute retaliation. See Burlington Northern and
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Rather, the statutory retaliation
clauses prohibit any adverse treatment that is based upon a retaliatory motive and
is reasonably likely to deter the charging party or others from engaging in
protected activity. Id.
2 Complainant claimed reprisal during informal counseling but did not complete
the “basis” section of the Formal complaint, leaving it blank.

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When a complaint of reprisal is not based on prior protected activity, the complaint
is not within the purview of Title VII and must be dismissed for failure to state a
claim. See Bryant v. Dep't of Justice, EEOC Request No. 05980273 (Jun. 4, 1999).
“Protected activity” refers to either participation in the EEO process or acting in a
reasonable, good faith manner to oppose discriminatory practices in violation of
EEO statutes. See EEOC Compliance Manual, Section 2, B.11, (May 12, 2000)
(EEOC Directive No. 915.003) citations omitted. “Participation” includes filing a
charge, testifying, assisting, or participating in any manner in an investigation,
proceeding, or hearing under the applicable statute, regardless of the validity or
reasonableness of the original allegation of discrimination. Id.
The record shows that during informal counseling, the EEO Counselor advised
Complainant 	about 	the 	need 	to 	identify 	a 	basis 	of 	discrimination, 	and 	that
Complainant stated that she had not engaged in prior EEO activity but that she
believed the Supervisor discriminated against her in retaliation for a prior dispute
between 	the 	two 	regarding 	“inclement 	weather 	concerns.” 	In 	her 	Formal
complaint, Complainant did not provide a basis, leaving that section blank on the
Formal complaint form. 	On appeal, Complainant does not address the FAD’s
finding that she has not identified her participation in any protected activity as a
basis for her reprisal allegation.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is
affirmed.
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.

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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. 	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.

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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.
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 16, 2026
Date