EEOC Appeal 2026000131

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Shakia H.,1
Complainant,
v.
Douglas A. Collins,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2026000131
Hearing No. 550-2024-00008X
Agency No. 2003-660-2022-148302
DECISION
On October 17, 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 AJ’s September 16, 2025, 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.
At the time of events giving rise to this complaint, Complainant worked as a
Registered Nurse, Grade 2 Step 4, at the Agency’s Community Care Department,
VA Medical Center (VAMC) George E. Whalen Hospital in Salt Lake City, Utah.
Complainant started her employment with the Agency as a Nurse on September 3,
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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2019. She was removed from her employment on August 22, 2022. Report of
Investigation (ROI) at 123, 285, and 541. Complainant has permanent generalized
anxiety disorder, major depressive disorder, attention deficit/hyperactivity disorder
(ADHD), insomnia, and post-traumatic stress disorder (PTSD [chronic]). ROI at
125-30. Complainant identified multiple occurrences at work resulting in extreme
distress 	which 	exacerbated 	her 	disabilities. 	According 	to 	Complainant, 	her
disabilities resulted in limitations that included memory and communication and task
completion issues.
Complainant’s first-line Supervisor (Supervisor 1) was the Nurse Manager. She first
became aware that Complainant had disabilities on May 31, 2022, when she received
a request for a reasonable accommodation from Complainant. Supplemental (Supp.)
ROI at 716-17. The Acting Chief of Community Care Services (Acting Chief) served
in Complainant’s supervisory chain. He was not aware that Complainant had any
disabilities. ROI at 222.
Complainant initiated EEO contact on September 19, 2022. On December 21, 2022,
Complainant filed a formal complaint alleging that the Agency discriminated against
her and subjected her to a hostile work environment on the basis of disability
(mental) when:
1. From July 8, 2021, through May 20, 2022, Supervisor 1 emailed disciplinary
meeting summaries that contained discrepancies from what was recorded
during the meetings;
2. On September 13, 2021, Supervisor 1 failed to review Complainant's annual
performance review and evaluation with her;
3. On January 12, 2022, Supervisor 1 placed Complainant on a performance
Improvement plan (PIP);
4. On June 15, 2022, Supervisor 1 failed to meet with Complainant to discuss her
progress on the PIP, and to inform her of the new end date of the PIP;
5. On June 27, 2022, through August 12, 2022, Supervisor 1 and the Reasonable
Accommodation 	Coordinator 	(RA 	Coordinator) 	denied 	Complainant's
reasonable accommodation request and did not engage in the interactive
process;

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6. On July 27, 2022, Acting Chief denied Complainant's request for reassignment
outside of the Community Care department;
7. On July 22, 2022, Acting Chief failed to allow Complainant to have a Union
Representative present during a disciplinary meeting;
8. On July 22, 2022, Acting Chief issued Complainant a proposed removal
consisting of vague, incomplete, false, and unjustified statements and allowed
only seven days to respond;
9. On July 22, 2022, Management issued Complainant an unsatisfactory annual
performance review; and
10. On 	August 	22, 	2022, 	Management 	removed 	Complainant 	from 	her
employment at the Salt Lake City VAMC.2
The Agency conducted an investigation. The investigation revealed that on July 8,
2021, Supervisor 1 met with Complainant for a “1:1 meeting via Teams to discuss
concerns and provide feedback.” Supervisor 1 sent an email re-cap after the meeting.
Supp. ROI at 718 and 738-39. Supervisor 1 scheduled a “follow-up” meeting with
Complainant on July 13, 2021, providing resources for Employee Assistance
Program 	(EAP), 	Family 	and 	Medical 	Leave 	Act 	(FMLA), 	Reasonable
accommodation, EEO and Crisis Line. Supp. ROI at 718 and 740.
Also on July 13, 2021, Complainant emailed Supervisor 1, stating and asking to
“amend her reasonable accommodation;” and asked to either record in Teams the
1:1 meetings with Supervisor 1 or have another individual present during the 1:1
meetings to provide a detailed summary of the events. Supp. ROI at 616.
On August 5, 2021, Supervisor 1 held another meeting with Complainant to discuss
productivity and the Union (Representative) was present. The email contained a list
of things Complainant and Management agreed upon, such as submitting an
information technology (IT) ticket for “Dragon” software which would allow
Complainant to talk to text, the need for Complainant to meet her productivity
standards of the requisite number of consults per day, and instruction as to the fact
2 The Agency noted that this complaint was not processed as a “Mixed Case”
complaint due to Title 38 employment status.

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telework would be revoked if Complainant continued to have productivity issues.
Supervisor 1 ended this email by stating, “Please review what I’ve written above and
add anything I may have missed.” Supp. ROI at 719 and 743.
Supervisor 1 continued to schedule meetings to discuss Complainant’s productivity
issues between August 2021-January 5, 2022. Supp. ROI at 718-19 and 743-54. On
the email recaps regarding the productivity meetings Supervisor 1 held with
Complainant 	after 	Complainant 	requested 	third-party 	presence, 	Supervisor 	1
included the union and stated, “Please review what I’ve written above and add
anything I may have missed” at the bottom of every email. Supp. ROI at 741-52.
On September 13, 2021, Supervisor 1 notified Complainant that in 14 days, her
telework agreement was going to be terminated due to her lack of productivity and
that Complainant would need to start reporting to the office on September 27, 2021.
Supp. ROI at 719 and 745. On January 3, 2022, Supervisor 1 informed Complainant
that 	she 	was 	revoking 	her 	compressed 	work-day 	privileges 	due 	to 	lack 	of
productivity and asked Complainant what time she would like her tour of duty to
start. Complainant responded she would like to keep her 0700 tour of duty. Supp.
ROI at 719 and 733.
On January 12, 2022, Supervisor 1 held a counseling program conference with
Complainant, whereby she informed Complainant of her performance deficiencies
and advised her that pursuant to VA Handbook 5013, Part II, Supervisor 1 was
providing Complainant with an opportunity to correct the identified deficiencies and
demonstrate satisfactory performance within 90 calendar days of the issuance of the
memorandum. In the Counseling Program Conference letter, Complainant was
reminded that her required consult standard was 6-8 consults per day and that she
had averaged 4.2 per day in September and October, and 5.4 per day in November
and December. The 90-day period to improve was set to end on April 12, 2022. Supp
ROI at 734.
Supervisor 1 met with Complainant on a bi-weekly basis from January 7- May 20,
2022 as required under the Counseling Program Conference letter. The 90-day
period end date was extended from April 12, 2022 to May 24, 2022 because
Complainant was on FMLA leave from February 1-March 9, 2022. Supp. ROI at
723 and 755-56. On May 31, 2022, Supervisor 1 received notification from RA
Coordinator that Complainant was seeking a reasonable accommodation. Supp ROI
at 785-88.

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On May 31, 2022, Supervisor 1 emailed Complainant the VA Form 0857b
acknowledging receipt of the reasonable accommodation request. In the email,
Supervisor 1 acknowledged receipt of Complainant’s reasonable accommodation
request, stating that she would be happy to have a meeting to discuss this further
when 	Complainant 	returned 	to 	work. 	Supp 	ROI 	at 	770. 	According 	to 	RA
Coordinator, Complainant was on extended leave so the initial interactive meeting
occurred on June 27, 2022. ROI at 240. Supervisor 1 also produced a Teams chat
document to show that the interactive meeting occurred on June 27, 2022. The
meeting lasted approximately 52 minutes. Supp. ROI at 782.
Complainant requested four separate reasonable accommodations that included
uninterrupted 15-20 minute period before the end of her tour to prepare a “To Do
List” for the next day. The request was approved effective June 21, 2022. She
requested to be able to record or receive a complete transcription of all disciplinary
meetings or meetings discussing her job performance. An alternate accommodation
was approved effective July 15, 2022.
Complainant requested to not be measured on the number of consults she received
per day; instead, she asked to be measured by if she could keep up with her work.
The 	Agency 	determined 	that 	it 	was 	unable 	to 	accommodate 	the 	request 	in
Complainant’s current position on June 27, 2022. Complainant also requested, after
a leave period (particularly an extended one), to have roughly 30 minutes to 1hour
to compile new information, procedures, and policies. This should not occur more
than 2 times a month, or even less. The request was approved effective June 21,
2022.
During the June 27, 2022, interactive meeting, Complainant, Supervisor 1, and RA
Coordinator confirmed that Complainant was not seeking reassignment at that time
as she first wanted to see if the accommodations worked. ROI at 638 and 660.
Complainant did seek reassignment. She agrees she did not want reassignment but
states she only did not want it at that time, and instead also cites to an August 10
email in which she addressed this. The email cited for this fact by the Agency is from
August 18, which is also cited by Complainant in the Opposition at 2. Complainant
also sought a disability retirement application on August 17. ROI at 658. On August
19, 	2022, 	the 	final 	VA 	Form 	0857f 	was 	completed 	which 	reflected 	two
accommodations, one alternative accommodation, and one accommodation that was
denied due to the request being to eliminate an essential function of the position

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(consult metrics). The decisions were documented by Supervisor 1 as the Reasonable
Accommodation Deciding Official. Supp ROI at 649 and 779-80.
On July 22, 2022, Complainant was issued a proposed removal for unacceptable
performance after she failed to sufficiently meet the six-eight consults required of
her position after many months of counseling and assisting her. The Deciding
Official made the decision to remove Complainant on August 11, 2022. ROI at 289.
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 filed a motion for summary judgment (Agency’s motion) on July 15,
2024. Complainant submitted a response to the Agency’s motion (Complainant’s
response) on July 30, 2024; and the Agency’s reply was submitted on August 9,
2024. After a review of the record in its entirety, including the parties’ submissions
and the ROI, the AJ determined that the Agency was entitled to summary judgment.
On September 16, 2025, the AJ granted the Agency’s motion and issued a decision
without a hearing in favor of the Agency, finding no discrimination.
When the Agency failed to issue a final order within 40 days of receipt of the AJ's
decision, the AJ's decision became the Agency's final action pursuant to 29 C.F.R.
§ 1614.109(i)).
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
administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

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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.
Failure to Accommodate (Claim 5)
An agency is required to make reasonable accommodation to the known physical
and mental limitations of an individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and
(p). In order to establish that she was denied a reasonable accommodation,
Complainant must show that: (1) she is an individual with a disability as defined by
29 C.F.R. § 1630.2(g); (2) she is “qualified” as defined by 29 C.F.R. § 1630.2(m);
and (3) the Agency failed to provide a reasonable accommodation. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the 	Americans 	with 	Disabilities 	Act 	(Enforcement 	Guidance 	on 	Reasonable
Accommodation), No. 915.002 (Oct. 17, 2002).
The term “qualified,” with respect to an individual with a disability, means that the
individual satisfies the requisite skill, experience, education and other job-related
requirements of the employment position such individual holds or desires and, with
or without reasonable accommodation, can perform the essential functions of such
position. 29 C.F.R. § 1630.2(m).

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Once an employer becomes aware of the need for an accommodation of an
employee’s disability, the employer may engage in an interactive process with the
employee to identify and implement appropriate reasonable accommodations. See
29 C.F.R. § 1630.2(o)(3) (2019). An Agency may choose among reasonable
accommodations as long as the chosen accommodation is effective, and while the
preference of the individual with a disability should be given primary consideration,
an Agency has the ultimate discretion to choose between effective accommodations.
See Enforcement Guidance, supra, at Q. 9.
Here, we find that Complainant is an individual with disability who was not qualified
as she was unable to perform the essential functions of her registered nurse position
with or without reasonable accommodation. Complainant identifies as having
several mental disabilities that affected her ability to retain information and timely
complete tasks. According to Complainant, she noticed the decrease in her work
production from May 2021, until her termination on August 22, 2022. See ROI at
130-35, detailing Complainant’s disability, limitations, restrictions and impact.
The Agency was aware of Complainant’s disabilities; she requested four separate
reasonable accommodations. Contrary to Complainant’s allegation, the record
reflects that the Agency engaged in the interactive process with her, and approved
two of her requested accommodations, and an alternative accommodation to enable
Complainant to perform her duties. The accommodation requested accommodation
that was denied was one that would require removal of an essential job function,
which the Agency is not obliged to approve. See Michelina C. v. Dep’t of the Army,
EEOC Appeal No. 2023000375 (Mar. 20, 2024) (stating that the Agency has no
obligation to eliminate essential functions).
Notably, Complainant herself confirmed that she did not seek reassignment during
the interactive process because she wanted to see if her approved accommodation
would be effective. The record is devoid of any evidence that when Complainant
began noticing the decrease in her work production from May 2021, until her
termination on August 22, 2022, she informed the Agency that the accommodations
she received were ineffective or that she was ready to seek reassignment to another
position as an accommodation of last resort. Therefore, we do not find that the
Agency failed to accommodate Complainant as alleged.
As to Claim 10, as did the AJ, we find that the Agency articulated a legitimate, non-
discriminatory reason for its actions. However, Complainant failed to prove, by a
preponderance of the evidence, that the agency's explanation was pretextual. Nor do

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we 	find 	any 	evidence 	that 	Complainant’s 	termination 	was 	motivated 	by
discriminatory animus based on her disability. As the AJ observed, and as the record
reflects, Complainant’s termination was the result of her unimproved performance
despite Supervisor 1’s diligence in working with her one on one from at least July 8,
2021, to provide assistance and feedback to help Complainant with her performance
problems.
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 incidents alleged in Claims 5 and 10 occurred due to discrimination based
on her disability.
Complainant also alleged a hostile work environment in Claims 1-4 and 6-10.
However, what she described in support of her allegations are performance reviews
or 	actions 	taken 	by 	management 	for 	her 	unsatisfactory 	and 	unimproved
performance. Notably, Complainant herself stated that, as early as May 2021 until
her separation, she had a significant decrease in her work production. ROI at 132.
We agree with the AJ’s observation that Complainant’s remaining allegations lack
the requisite level of severity and pervasiveness to constitute actionable harassment.
For example, even if the record supports Complainant’s allegation in Claim 1 that
Supervisor 1’s summaries contained discrepancies from meeting records between
July 2021 through May 2022, there is no showing of discriminatory bias or creation
of a hostile work environment. Complainant’s request to have the meetings
summarized, transcribed and to have a union representative present were granted;
Supervisor 1 also asked in follow-up emails in which her union representative was
included, that Complainant review and note if there was anything Supervisor 1
missed. As such, Complainant had the opportunity to correct any discrepancies.
Moreover, as the AJ aptly observed, failure to review a performance evaluation
(Claim 2), and failure to review progress on the PIP or inform Complainant of its
new end date (Claim 4) do not rise to the level of severe or pervasive intimidating
conduct 	under 	the 	circumstances 	of 	the 	instant 	complaint. 	Nor 	do 	placing
Complainant on a PIP in January 2022 (Claim 3) or her other allegations in Claims
7-9 pertaining to the July 22, 2022, unsatisfactory performance review evidence
discriminatory animus in light of her unaddressed performance deficiencies.

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In that regard, the Commission has repeatedly held that directing employees in the
performance of their duties and ensuring the efficiency of the operation entrusted to
them is a matter clearly within the realm of management prerogative and authority,
and insufficient to constitute a severe or pervasive hostile working environment.
Christopher U. v. USPS, EEOC Appeal No. 0120161038 (Sep. 25, 2017) (holding
that the “claims are everyday work-related incidents that are not severe or pervasive
enough to establish a hostile work environment”).
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. 	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).

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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. 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

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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 28 ,2026
Date