2026002326•EEOC Appeal 2026002326
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Karol K.,1 Complainant, v. Douglas A. Collins, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2026002326 Agency No. 200J-636-2024-159507 DECISION Complainant filed an appeal to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 10, 2026, final decision 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Social Worker Assistant, GS-7, at the Agency’s Omaha VA Medical Center, part of the VA Nebraska-Western Iowa Healthcare System, in Omaha, Nebraska. 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.
2026002326 2 On August 29, 2024, Complainant filed an EEO complaint alleging the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (Caucasian), sex (female), age (69), and reprisal for prior protected EEO activity (reporting sexual harassment) when: 1. Since July 2023, S1 and S2 did not address Complainant’s issues of bullying and harassment by coworkers; 2. From July 2, 2023, to February 29, 2024, Complainant was not allowed to telework; 3. From July 2, 2023, to October 2023, Complainant was not provided proper training for the position and supervisors requested Complainant complete additional training; 4. Beginning in August 2023, Complainant was required to complete an excessive number of Veteran orientations to the HUD-VASH program to ensure eligibility; 5. From March 2024 to until June 24, 2024, Complainant did not receive credit for the work she was performing and coworkers took credit for her work during meetings; 6. On June 5, 2024, S1 subjected Complainant to a fact-finding investigation; and, 7. On June 24, 2024, Complainant was terminated during her probationary period.2 The Agency accepted the foregoing claims for investigation.3 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, or a final decision from the agency. 2 Complainant’s original complaint included other allegations that were dismissed on procedural grounds. Because Complainant does not challenge these partial dismissals on appeal, we decline to address them here. 3 Claim 6 was accepted only as to the basis of retaliation. Additionally, Claims 2 and 3 were accepted as part of Complainant’s overall hostile work environment claim, but not as independently actionable claims due to their untimeliness. Complainant did not challenge this on appeal.
2026002326 3 After Complainant requested a decision, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant did not prove that the Agency subjected her to discrimination as alleged. The Agency found that as to the timely independently actionable claims of disparate treatment raised by Complainant (Claims 4, 6, and 7), Complainant failed to establish a prima facie case of disparate treatment. Complainant did not establish disparate treatment based on reprisal because she did not show that a nexus existed between the protected activity and the adverse treatment. Complainant did not establish a prima facie case of disparate treatment based on her sex, age, or race because she did not show that she was treated differently from similarly situated employees outside of her protected class or there was some other evidentiary link between membership in the protected class and the adverse employment action. The Agency further found that Complainant had not established a claim of discriminatory or retaliatory harassment based on her age, race, sex, or prior protected EEO activity because the record showed that the alleged incidents constituted normal managerial oversight and common workplaces disputes, which the Commission has found do not establish a hostile work environment. Complainant then filed the instant appeal. Complainant did not file a brief or statement in connection with her appeal. She included a recording of an undated voicemail but does not explain its relevance or the grounds for her appeal. The Agency also did not file a brief or statement in connection with this appeal. 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 (EEO MD-110), at 9-16 (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”). 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).
2026002326 4 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 804 n.14. 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). Complainants may establish a prima facie case of discrimination based on race, sex, or age by providing evidence that: (1) they are a member of a protected class; (2) they suffered an adverse employment action; and (3) either that similarly situated individuals outside their protected class were treated differently, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802 n.13; Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000); Bodett v. CoxCom, Inc., 366 F.3d 736, 743- 44 (9th Cir.2004) (internal quotation marks omitted). Here, Complainant established that she is a member of a protected class based on her age, sex, and race, and she has alleged adverse actions with respect to Claims 4, 6, and 7. However, she did not identify any similarly situated employees who were treated differently, nor did she identify other circumstances giving rise to an inference of discrimination. Therefore, she did not establish a prima facie case of disparate treatment based on her age, sex, or race. Complainants may establish a prima facie case of reprisal by showing that: (1) they engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, they were subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). When establishing a prima facie case of retaliation under Title VII, close temporal proximity is sufficient to infer a causal nexus between an employee's protected activity and an adverse action on the part of an employer.
2026002326 5 See Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001) (noting that “cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very close”’). Here, Complainant identified her protected activity as reporting harassment on September 7, 2023. Claim 4 began occurring prior to this reporting. Claims 6 and 7 occurred nine months after Complainant’s report of harassment and prior to the EEO complaint. Thus, there is no temporal nexus between Claims 4, 6, and 7, and Complainant prior protected EEO activity. Complainant has not provided any other evidence to support a nexus between her protected EEO activity and the alleged adverse actions. As for Complainant’s overall harassment/hostile work environment claim, in order to establish a prima facie case of harassment, Complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that he is a member of a statutorily protected class; (2) that he was subjected to unwelcome conduct related to his protected class; (3) that the harassment complained of was based on his protected class; (4) that the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See Celine B. v. Dep't of Navy, EEOC Appeal No. 2019001961 (Sept. 21, 2020); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). See also Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982), approved in Meritor Savings Bank v. Vinson, 477 U.S. 57, 66-67 (1986); Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself.
2026002326 6 For a retaliatory harassment claim, the alleged retaliatory actions need not impact a term, condition, or privilege of employment. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). A complainant need only show that a materially adverse action “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id., 548 U.S. at 68. The Commission's guidance states if the conduct would be sufficiently material to deter protected activity in the given context, even if it were insufficiently severe or pervasive to create a hostile work environment, there would be actionable retaliation. EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016). While Complainant has alleged a pattern of harassment beginning in July 2023, we find that Complainant has not shown that any of the complained of conduct was based on her protected classes or her prior protected EEO activity. A finding of a discriminatory or retaliatory hostile work environment related to Claims 4, 6, and 7 is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Complainant has not provided any evidence to show that the alleged harassment in her other claims was based on her protected classes or prior protected EEO activities. She makes only generalized assertions that the Agency’s actions were based on her protected classes because the Agency employees engaging in these actions did not share her protected classes. Such generalized assertions are generally insufficient to establish discriminatory motivation. Discrimination statutes prohibit only harassing behavior that is directed at an employee because of their protected bases. Jenee W. v. Dep't of Veteran's Affairs, EEOC Appeal No. 2022003989 (Sept. 19, 2024). We find that Complainant has not established that the harassment complained of was based on her protected classes or in reprisal for prior protected EEO activity. Therefore, based on our review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination.
2026002326 7 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. 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.
2026002326 8 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. 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.
2026002326 9 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 15, 2026 Date
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