EEOC Appeal 2025002653

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Nenita S.,1
Complainant,
v.
Douglas A. Collins,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2025002653
Hearing No. 510-2023-00208X
Agency No. 200I-673A-2022-14653
DECISION
On May 4, 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 April 4, 2025, final order 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 VACATES 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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ISSUES PRESENTED
Whether the EEOC Administrative Judge properly issued a decision by summary
judgment finding that Complainant was not subjected to unlawful discrimination as
alleged.
BACKGROUND
Complainant worked as a Registered Nurse at the Agency’s James A. Haley
Veterans Hospital in Tampa, Florida. 	Previously, in 2021, Complainant filed an
EEO complaint (Agency No. 200I-0673-2021105197) alleging that the Agency
subjected her to discrimination and a hostile work environment on the bases of sex,
disability, 	and 	reprisal 	when, 	among 	other 	things, 	Complainant’s 	first-level
Supervisor charged Complainant Absent without Official Leave (AWOL) multiple
times 	between 	March 	2021 	and 	July 	2021 	and 	initiated 	two 	fact-finding
investigations against Complainant. 	Complainant initially requested a hearing but
later withdrew her request and on January 24, 2023, the Agency issued a final
Agency decision finding that Complainant did not establish that she was subjected
to discrimination. 	Complainant appealed the Agency’s final decision to the
Commission.
Complainant filed the instant EEO complaint on July 23, 2022, alleging that the
Agency discriminated against her on the bases of disability (depression, anxiety,
insomnia) and reprisal for prior protected EEO activity under Section 501 of the
Rehabilitation Act of 1973 when:
1. 	she was subjected to an over-a-year wait for the results of a fact-
finding investigation;
2. 	she was issued a Letter of Reprimand on April 27, 2022;
3. 	she was charged AWOL from May 12, 2022-June 3, 2022; and
4. 	her requests for telework were denied on May 19, 2022, and July 13,
2022.
At the conclusion of the investigation into the instant complaint, Complainant was
provided a copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). 	While Complainant’s appeal of the Agency’s final
decision in her previous complaint was still pending, the Agency filed a motion for
a decision without a hearing in the instant case on October 17, 2023.

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The Commission issued its decision on Complainant’s previous complaint on July
31, 2024, finding that while Complainant did not establish that she was subjected
to discrimination, Complainant’s claims challenging her being marked AWOL
multiple times should be analyzed as a denial of reasonable accommodation claim.
See Lee R. v. Dep’t of Veterans Affs., EEOC Appeal No. 2023002068 (July 31,
2024) (request for recon. denied, EEOC Appeal No. 2024004765 (April 9, 2025)).
The Commission found that Complainant informed her Supervisor numerous times
that she was not able to come in to work because she was not feeling well; that she
specifically informed her Supervisor as early as October 2020 about her insomnia;
and, that she mentioned to the Supervisor in March 2021, that she needed to take
time off to care for her mental health. The Commission found that the Agency had
a duty to engage in the interactive process and grant Complainant accommodation.
The Commission concluded that the Agency violated the Rehabilitation Act every
time it denied Complainant’s requests for unscheduled leave or Leave Without Pay
from March 10, 2021, through July 22, 2021, and ordered the Agency to correct
Complainant’s time and attendance records to expunge Complainant’s AWOL
charges from March 10, 2021, through July 22, 2021, whenever the Agency found
that the absences were due to Complainant’s disability. See id.
On April 2, 2025, the AJ issued a decision without a hearing on the instant
complaint 	finding 	no 	discrimination. 	The 	AJ 	concluded 	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 and
that the incidents were not sufficiently severe or pervasive to constitute a hostile
work environment.
The Agency’s final action implemented the AJ’s decision.
Complainant appealed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues, among other things, that the Letter of Reprimand
should be found to be discriminatory because it was issued in part because of her
being marked AWOL, which the Commission previously found to be a violation of
the Rehabilitation Act, and reiterates the Commission’s previous finding that the
Agency denied her a reasonable accommodation when it marked her as AWOL in
2021.

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The Agency did not file a brief in response.
STANDARD OF REVIEW
In rendering this appellate decision, we must scrutinize the AJ’s legal and factual
conclusions, and the Agency’s final order adopting them, de novo. 	See 29 C.F.R.
§ 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action
shall be based on a de novo review . . .”); see also Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (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). 	This essentially means that we should look at this case with fresh eyes. In
other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and
Agency’s, factual conclusions and legal analysis – including on the ultimate fact of
whether intentional discrimination occurred, and on the legal issue of whether any
federal employment discrimination statute was violated. 	See id. at Chapter 9, §
VI.A. 	(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”).
ANALYSIS
We must determine whether it was appropriate for the AJ to have issued a decision
without a hearing on this record. 	The Commission's regulations allow an AJ to
issue a decision without a hearing when he or she finds that there is no genuine
issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after
the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. 	The 	U.S. 	Supreme 	Court 	has 	held 	that 	summary 	judgment 	is
appropriate 	where 	a 	court 	determines 	that, 	given 	the 	substantive 	legal 	and
evidentiary standards that apply to the case, there exists no genuine issue of
material fact. 	Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 	In
ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. 	Id. at
249.

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The evidence of the non-moving party must be believed at the summary judgment
stage, and all justifiable inferences must be drawn in the non-moving party’s favor.
Id. at 255. 	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); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st
Cir. 1988). 	A fact is “material” if it has the potential to affect the outcome of the
case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision
without holding a hearing is not appropriate. 	In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without holding a
hearing only upon a determination that the record has been adequately developed
for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206
(July 11, 2003). 	Finally, an AJ should not rule in favor of one party without
holding a hearing unless he or she ensures that the party opposing the ruling is
given (1) ample notice of the proposal to issue a decision without a hearing, (2) a
comprehensive 	statement 	of 	the 	allegedly 	undisputed 	material 	facts, 	(3) 	the
opportunity to respond to such a statement, and (4) the chance to engage in
discovery before responding, if necessary. According to the Supreme Court, Rule
56 itself precludes summary judgment “where the [party opposing summary
judgment] has not had the opportunity to discover information that is essential to
his opposition.” 	Anderson, 477 U.S. at 250. 	In the hearing context, this means
that the administrative judge must enable the parties to engage in the amount of
discovery necessary to properly respond to any motion for a decision without a
hearing. 	Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an AJ could order
discovery, if necessary, after receiving an opposition to a motion for a decision
without a hearing).
In 	this 	case, 	we 	find 	that 	the 	Commission’s 	previous 	decision 	involving
Complainant’s previous complaint constituted a change in material fact that the AJ
needed to be aware of in order to make a reasoned decision. 	However, because
neither of the parties informed the AJ of the Commission’s previous decision while
the Agency’s motion for summary judgment was pending before her, the AJ issued
her decision without a full knowledge of the facts. 	We emphasize that the claims
in Complainant’s previous complaint in Lee R. v. Dep’t of Veterans Affs., EEOC
Appeal No. 2023002068 (July 31, 2024) are inextricably related to the claims in
the instant complaint as the precursor to those events, such that the fact-finding
investigations the Supervisor initiated against Complainant that were raised in

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Complainant’s previous complaint resulted in the Letter of Reprimand that was at
issue in the instant complaint. Under the circumstances, we find that any decision
on the merits of Complainant’s complaint would be premature because the AJ was
not given an opportunity to address Complainant’s AWOL charges at issue in the
instant complaint as part of the earlier denial of reasonable accommodation claim.
We therefore find that the AJ’s decision without a hearing must be VACATED and
the case REMANDED back to the AJ for full consideration on the merits.
CONCLUSION
Therefore, after careful review of the record, including Complainant’s arguments
on appeal and arguments and evidence not specifically discussed in this decision,
the Commission VACATES the Agency’s final action and REMANDS the matter
to the Agency in accordance with this decision and the Order below.
ORDER
The Agency is directed to submit a copy of the complaint file in the instant
complaint 	and 	the 	full 	complaint 	file 	in 	Complainant’s 	previous 	complaint
(Agency No. 200I-0673-2021105197) to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. 	The Agency shall
provide written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on the complaint in accordance
with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance
with 29 C.F.R. § 1614.110.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 	29 	C.F.R. 	§ 	1614.405(c) 	and 	§ 	1614.502, 	compliance 	with 	the
Commission’s corrective action is mandatory. 	Within seven (7) calendar days of
the completion of each ordered corrective action, the Agency shall submit via the
Federal Sector EEO Portal (FedSEP) supporting documents in the digital format
required by the Commission, referencing the compliance docket number under
which compliance was being monitored. 	Once all compliance is complete, the
Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g).

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The Agency’s final report must contain supporting documentation when previously
not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may
petition the Commission for enforcement of the order. 	29 C.F.R. § 1614.503(a).
The Complainant also has the right to file a civil action to enforce compliance with
the Commission’s order prior to or following 	an 	administrative petition 	for
enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the Complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a
civil action on the underlying complaint is subject to the deadline stated in 42
U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). 	If the Complainant files a civil
action, the administrative processing of the complaint, including any petition
for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
Failure by an agency to either file a compliance report or implement any of the
orders set forth in this decision, without good cause shown, may result in the
referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. §
1614.503(f) for enforcement by that agency.
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 (R0124)
This is a decision requiring the Agency to continue its administrative processing of
your complaint. 	However, if you wish to file a civil action, you have the right to
file such action in an appropriate United States District Court within ninety (90)
calendar days from the date that you receive this decision. In the alternative, you
may file a civil action after one hundred and eighty (180) calendar days of the
date you filed your complaint with the Agency, or filed your appeal with the
Commission.

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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. 	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 __________ 	Gul Chaudhry’s signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 30, 2026
Date