2026000281•EEOC Appeal 2026000281
Testo completo
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
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