EEOC Appeal 2026000113

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Phoebe O.,1
Complainant,
v.
Douglas A. Collins,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2026000113
Hearing No. 520-2024-00212X
Agency No. 200H-528-2023-1510
DECISION
On October 15, 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 September 30, 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. For the following reasons, the Commission
AFFIRMS the Agency’s final order.
At the time of events giving rise to this complaint, Complainant worked as a Nursing
Assistant, GS-5, at the Agency’s Albany Medical Center in Albany, New York.
Complainant served in her position from July 5, 2022, until February 14, 2023, when
she was removed from employment. Report of Investigation (ROI) at 79 and 102-
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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03. At the time of hiring, Complainant was subject to a one-year probationary period.
ROI at 409.
Complainant's first-line supervisor (Supervisor 1A) was a Nurse Manager. ROI at
88-9. 	Thereafter, 	a 	second 	Nurse 	Manager 	became 	Complainant's 	first-line
supervisor (Supervisor 1B). ROI at 93-4. Complainant identified her color as African
American. She asserted that her protected activity involved a complaint she raised
to the “educator's attention” regarding a performance evaluation from Supervisor
1A. ROI at 80.
On June 17, 2023, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of color (African-American) and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when,
on February 9, 2023, Complainant was terminated from employment during her
probationary period.
The Agency conducted an investigation. The investigation revealed that from
October 6, 2022, to January 17, 2023, Complainant accrued over 570 hours of
absence without official leave (AWOL). ROI at 104-20 and 125. On January 4, 2023,
Complainant was instructed, via a Return to Duty Letter (the letter), to report to duty
or to contact her supervisor as needed.
The letter stated that Complainant "failed to report to work since November 21,
2022," "failed to call in and properly request leave to cover her absence," and that it
was her responsibility to communicate with Supervisor 1B regarding her status and
to properly request leave to cover her absences. Complainant was ordered to return
to duty or contact Supervisor 1B on the next duty day after receiving the letter. The
letter also warned that her failure "to properly request leave and/or unauthorized
absence (AWOL) may lead to disciplinary action up to and including removal," and
provided 	options 	such 	as 	voluntary 	resignation, 	leave 	options, 	reasonable
accommodation, Employee Assistance Program and others. ROI at 127-28.
On January 17, 2023, Supervisor 1B issued a Memorandum to Human Resources
(HR), seeking Complainant's removal as she had been absent from duty since
September 26, 2022. He asserted that Complainant had filed a claim for workers'
compensation, which had been denied, and had requested leave without pay
(LWOP), which had also been denied. He noted that Complainant had not returned
to work since the January 4, 2023, return to duty letter was issued. ROI at 101. A

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termination letter to Complainant was not issued until February 9, 2023; it was sent
by the Chief HR Officer, for Complainant's failure to qualify during her probationary
period. ROI at 99.
Complainant argued that she was terminated because she was subjected to a hostile
work environment based on her color and in retaliation for complaining about the
hostile work environment.
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 parties engaged in discovery. On August 29, 2025, the Agency filed a motion
for summary judgment (Agency's motion). Complainant responded on September 2,
2025 (Complainant response or opposition), and the Agency replied on September
11, 2025. The AJ found that the record was adequately developed. The AJ reviewed
the entire record, including the ROI, in the light most favorable to Complainant. The
AJ found that there was no genuine issue of material fact in dispute. The AJ also
determined that the Agency was entitled to summary judgment. On September 22,
2025, the AJ issued a decision without a hearing 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.
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
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

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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.
We concur with the AJ’s observation that the Agency presented a legitimate, non-
discriminatory reasons for removing Complainant during her probationary period.
According to the record, Complainant was AWOL over 570 hours between October
2022 and January 2023. As such, she was terminated for failing to qualify during her
probationary period due to attendance issues. See AJ’s Decision at 5.
Complainant did not refute, with any evidence, the Agency’s stated reason; and she
failed to show that the reason was pretextual. Complainant also failed to provide
evidence that she had engaged in any prior protected EEO activity to support a
conclusion that retaliation occurred. That she raised a performance evaluation issue
from Supervisor 1A to the “educator's attention,” without connecting the alleged
issue to a covered protected EEO basis, is no such evidence.2 Nor did she dispute
2 In order to successfully state a claim, a complaint must identify an alleged basis of
discrimination (i.e., race, sex, age, national origin, color, religion, disability and
reprisal for prior EEO activity) within the purview of EEO law and regulations. See
29 C.F.R. § 1614.103. “If a complaint fails to clearly identify a covered basis within

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that she did not comply with Supervisor 1B’s January 4, 2023, order that she return
to duty.
Moreover, 	t he 	Commission 	has 	long 	held 	that, 	where 	a 	Complainant 	is 	a
probationary 	employee, 	he 	or 	she 	is 	subject 	to 	retention, 	advancement, 	or
termination at the discretion of an agency so long as these decisions are not based
on a protected category. See Zachary K. v. Dep’t of the Interior, EEOC Appeal No.
0120107097 (Mar. 26, 2019). Importantly, Complainant did not identify any other
probationary employee who received more favorable treatment under her same
or similar circumstances.
To the extent that Complainant is alleging harassment, a finding of a hostile work
environment is precluded by our determination that Complainant did not establish
that the alleged incident occurred due to discrimination or retaliation based on her
color or any prior protected activity.
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
[the Commission’s] jurisdictional purview, then it must be dismissed.” See Darlene
F. v. U.S. Postal Serv., EEOC DOC 0120162289 (Sept. 9, 2016)

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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. 	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).

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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. 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 28, 2026
Date