EEOC Appeal 2026002180

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Evelyn S.,1
Complainant,
v.
Douglas A. Collins,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2026002180
Hearing No. 450-2024-00393X
Agency No. 2003-549A4-2024-155484
DECISION
On April 26, 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 25, 2026, final order concerning her 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 Nurse
Reviewer at the Agency’s VA Medical Center in Dallas, Texas.
On December 17, 2023, Complainant filed a formal complaint alleging that the
Agency discriminated against her on the basis of disability (back pain) when: she
was subjected to numerous incidents of harassment, including but not limited to:
being issued a letter of Written Counseling; her Supervisor failed to preapprove her
requested 40 hours of annual leave; and in January 2024, her Supervisor issued her
a lower-than-expected Performance Rating for FY 2023 of Highly Satisfactory.
Complainant identified her disability as backpain, which she asserted was temporary
and for which she takes medication. See Report of Investigation (ROI) at 126-28.
She asserted that her Supervisor became aware of it because she requested Family
and Medical Leave Act (FMLA) leave. 	See ROI at 128. 	She stated that her
Supervisor denied her requests for leave, denied her request to attend training, and
threatened her after she applied for another position by saying, “Did you think I
wouldn’t hear of your application” and telling her that “I don’t let my employees go
anywhere until one year with me.” 	See ROI at 129-32. 	She speculated that the
Supervisor has “a personal bias or vendetta against [her.]” 	See ROI at 136. 	She
further took issue with the Supervisor issuing her a Written Counseling for a low
sick leave balance at a time when she was on FMLA leave. See ROI at 149. She
also stated that the Supervisor waited to approve her request for annual leave for
almost three months after she requested it which made it so that she could not plan
effectively. See ROI at 154. Lastly, she asserted that she believed her Performance
Rating for FY 2023 should have been higher than Highly Satisfactory if the
Supervisor had not “suppress[ed] [her] personal growth and advancement.” See ROI
at 155-56.
The Supervisor denied ever harassing Complainant, asserting that Complainant
tends to claim injustice whenever things do not go her way and gets argumentative.
See ROI at 167-68. She explained that leaves are approved based on seniority and
before leave is completed for the year, she sends out an email to her employees
telling them how the process will work, and she only denied Complainant when
another employee with more seniority had already requested and been approved for
leave. See ROI at 167-68. She also denied ever threatening Complainant and said
that she had no way of knowing if or when Complainant applied for other positions.
See ROI at 168.

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She asserted that she denied Complainant’s request for training because the training
was for supervisors and Complainant is not a supervisor. See ROI at 170. She stated
that when she denied Complainant’s request for overtime, it is because overtime is
approved on the basis of need and availability of funds, not because an employee
wants it, and at that time, Complainant’s workload did not justify the need for
overtime. 	See ROI at 172. 	She asserted that she issued Complainant a letter of
Written Counseling to inform Complainant that she had a low sick leave balance and
because Complainant displayed a pattern of calling out right before or after her
scheduled days off. See ROI at 173. She explained that the Written Counseling was
not punitive in nature, and she was only notifying Complainant of her low leave
balance. 	See ROI at 173. 	She asserted that she gave Complainant a Highly
Satisfactory performance rating based on her performance. See ROI at 175.
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 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 her to discrimination as
alleged. The instant appeal followed.
On appeal, Complainant insists that there are credibility issues in dispute because
the Supervisor’s assertions cannot be trusted. 	The Agency did not file a brief in
response.
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. 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). 	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 find that the record does not support Complainant’s assertions that she was
subjected to disparate treatment. We will assume without finding, for the purposes
of analysis only, that Complainant’s back pain constitutes a disability for purposes
of the Rehabilitation Act.2 We find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions and Complainant did not establish that the
Agency’s reasons were a pretext for discrimination.
2 We note that the Agency did not appear to dispute that Complainant is a qualified
individual with a disability.

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While Complainant clearly believed that she should have received a higher rating,
her own subjective assessment of her performance is not evidence of 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). 	Moreover, we note
that Complainant’s main argument regarding her performance rating was not related
to her actual performance but to insisting that her rating would have been higher if
she had been afforded the developmental opportunities she requested. In addition,
we note that the record supports the Supervisor’s statement that the Written
Counseling was issued to notify Complainant of her low sick leave balance and
Complainant’s attendance records also support the Supervisor’s assertion that
Complainant had a suspicious habit of calling out sick the day before her scheduled
days off. To the extent Complainant insists that she should not have been issued the
Counseling because she was on FMLA leave, the evidence does not support
Complainant’s assertion. 	We note that contrary to what Complainant appears to
believe, sick leave and FMLA leave are not the same and the mere fact that
Complainant may have been previously approved for FMLA leave has no effect on
Complainant’s sick leave balance with the Agency nor does it excuse her from
following the Agency’s leave procedures.3 Finally, the Commission has repeatedly
stated that 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. See Charlie O. v. Dep’t of the Navy, EEOC
Appeal No. 2021002639 (March 29, 2022); Juliet B. v. U.S. Postal Serv., EEOC
Appeal No. 0120182519 (Oct. 8, 2019).
We further find that Complainant did not establish that she was subjected to unlawful
harassment as alleged. The evidence in the record indicates that all of the incidents
of alleged harassment constitute commonplace workplace interactions such as work
instructions and admonishments which are not sufficiently severe or pervasive to
constitute a hostile work environment. See Richardson v. Dep’t of Labor, EEOC
Appeal No.0120110183 (Mar. 1, 2011) (noting that interaction with a supervisor
3 To the extent that Complainant also appears to allege retaliation for using FMLA
leave, we note that using FMLA leave is not considered protected activity for the
purposes 	of 	a 	reprisal 	claim 	and 	therefore, 	the 	Commission 	does 	not 	have
jurisdiction over Complainant's FMLA reprisal claim. See Maranda B. v. Dep’t of
Homeland Sec’y, EEOC Appeal No. 0120150915 (March 17, 2017).

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over time and attendance, while “annoying,” was not abusive). At best, the evidence
in the record indicates that Complainant had a contentious interpersonal relationship
with 	her 	Supervisor, 	but 	the 	Commission 	has 	stated 	that 	such 	contentious
interpersonal relationships generally do not rise to the level of an unlawful hostile
work environment. See Arthur J. v. Social Sec’y Admin., EEOC Appeal No.
0120142985 (Feb. 28, 2017); see also William S. v. Gen. Srvcs. Admin., EEOC
Appeal No. 2021001365 (July 12, 2022) (stating that personality conflicts or a
supervisor’s confrontational manner does not rise to the level of discriminatory
harassment). To the extent that Complainant alleges that she felt the Supervisor was
threatening her or otherwise trying to humiliate her, Complainant’s subjective
feelings do not rise to the objective standard required to establish a hostile work
environment. See Mattson v. Dep’t of Homeland Sec’y, EEOC Appeal No.
0120052563 (July 3, 2007).
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.

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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. 	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 16, 2026
Date