EEOC Appeal 2025002871

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Brad M.,1
Complainant,
v.
Douglas A. Collins,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2025002871
Hearing No. 520-2024-00222X
Agency No. 200H-620A-2023-152499
DECISION
On May 23, 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 29, 2025, final order concerning his 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
Recreational Therapist, GS-638-11, 4AB, at the Agency’s VA Healthcare System in
Hudson Valley, New York. Complainant is a Black African-American. He engaged
in prior protected EEO activity, having filed a former EEO case which was litigated
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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in 2021. Report of Investigation (ROI) at 79. Complainant’s first-line supervisor
(Supervisor 1) was the Recreation Therapy Supervisor. ROI at 100. His second-line
supervisor (Supervisor 2) was the Chief of Recreation. ROI at 107. Both supervisors
were aware of Complainant’s race and prior EEO activity. ROI at 101 and 108. The
Chief of Health Administration Services was not in Complainant’s supervisory chain
of command; and she was unaware of his protected bases. ROI at 114-15.
Complainant initiated EEO contact on June 6, 2023. On July 7, 2023, Complainant
filed a formal complaint alleging that the Agency discriminated against him on the
bases of race (African-American) and reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when:
1. On May 24, 2023, management issued Complainant a letter of reprimand and
a warning of performance expectations;
2. On May 24, 2023, Complainant was issued a poor rating on his mid-year
performance appraisal;
3. On 	July 	24, 	2023, 	the 	attending 	psychiatrist 	(Psychiatrist) 	informed
Complainant that he and the administrative nursing supervisor would be
conducting an investigation; and
4. On August 1, 2023, Complainant was required to participate in a factfinding
interview.
The Agency conducted an investigation. The investigation revealed that on or about
May 24, 2023, Supervisor 1 issued a Letter of Expectation to Complainant outlining
the expectations that are required of the Recreation Therapist position. The Letter of
Expectation also outlined specific discrepancies in Complainant’s documented
participation notes and stated that these discrepancies may contribute to a lower
productivity percentage.
The 	Letter 	of 	Expectation 	was 	issued 	because 	at 	that 	time, 	Complainant’s
productivity percentage for fiscal year 2023 (FY23) was 30 percent, and the letter
advised him that in order to be fully successful in his position, he was “required to
show progress in productivity percentages to reach 75% within the year…” ROI at
88-90.

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The Letter of Expectation also offered additional training to Complainant should he
need it as well as outlining other options to assist Complainant in achieving the
required fully successful performance rating and noted that a review of his
performance would take place 45-days after the issuance of the Letter. ROI at 89.
On July 26, 2023, a progress review was held regarding Complainant’s performance
and he was marked as “considered Fully Successful or better.” The only other option
for the progress review rating was “needs improvement to be Fully Successful or
better.” 	See 	Agency’s 	Motion 	for 	Summary 	Judgement 	at 	15-9 	for 	FY23
Performance Appraisal.
On or about July 27, 2023, the Medical Center Director (MC Director) initiated fact-
finding investigation 2023-16 (FF 23-16) following allegations that Complainant
had been seen disposing of an empty hard seltzer beverage at work. ROI at 115, 121,
and 124. Complainant was questioned in connection with FF 23-16. ROI at 123.
Complainant believed that race was a factor in the alleged conduct because of the
organizational culture and cultural bias of the Agency. He also asserted that reprisal
was a factor because of cultural and racial bias that he had witnessed at the Agency.
Complainant also thought reprisal was a factor in his fully successful performance
appraisal rating as an attempt to weaken and castrate his manhood. ROI at 82.
At the conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation and notice of his right to request a hearing before
an EEOC Administrative Judge (AJ). Complainant timely requested a hearing before
an AJ.
On April 2, 2025, the Agency filed a motion for summary judgment (Agency’s
motion). Complainant filed his response (Complainant’s response) on April 17,
2025; the Agency replied on April 24, 2025. The AJ reviewed the Agency’s
statement, as well as the sources in the ROI, and other sources from which the facts
of the case were derived and found that they were accurate and supported by the
record. According to the AJ, Complainant only disputed seven of the Agency’s 17
facts, but he failed to state any reason for his dispute or to provide any citation to the
record as to what was untrue about the Agency’s facts. Therefore, the AJ found that
there was no genuine issue of material facts in dispute, and that the Agency was
entitled to judgment as a matter of law.

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On April 28, 2025, the AJ granted the Agency’s motion and issued a decision
without a hearing pursuant to 29 C.F.R. § 1614.109(g) 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 his 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
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.

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We find that the Agency articulated legitimate, non-discriminatory reasons for its
actions. Complainant failed to demonstrate that those reasons were pretextual. Nor
did he establish a link between the challenged actions and his protected race class.
Complainant also failed to identify any similarly situated coworkers outside of his
race class who received more favorable treatment under similar circumstances to
support a conclusion that the challenged management actions were motivated by
race-based discriminatory animus.
We also concur with the AJ’s assertion that although Supervisors 1 and 2 were aware
of Complainant’s prior protected EEO activity, Complainant’s reprisal claim fails
because the approximately two years between his 2021 case and his initial EEO
contact in the instant complaint on June 6, 2023, make the prior EEO activity too
attenuated to establish a nexus between the two. See Janay K. v. Dep’t of Homeland
Sec., EEOC Appeal No. 2019005579 (Dec. 14, 2020) (the temporal proximity
between an employer's knowledge of protected activity and the adverse employment
action must be “very close.”)
As did the AJ, we find that Complainant was not subjected to any adverse
employment 	actions 	regarding 	Claims 	1 	and 	2 	because 	the 	FY23 	mid-year
performance appraisal of “Fully Successful” was the highest rating he could have
received. Nor did Complainant present any evidence to dispute that his productivity
level in May 2023 was below where it should have been if he were on track for a
rating of “Fully Successful” on his performance appraisal. Therefore, management
issued Complainant a letter of expectation in order to make him aware of where his
percentages were at that time and to advise him of the changes that could be made
in order to achieve at least a Fully Successful performance rating. Management also
extended Complainant’s mid-year evaluation to July in order to give him an
opportunity to improve. On July 26, Complainant achieved that rating on his mid-
year appraisal.
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 1 and 2 occurred due to discrimination or
retaliation based on his race or any prior protected activity.
Likewise, Complainant’s remaining allegation of harassment in Claim 3 fails
because he did not describe any management conduct that was demonstrated to be
discriminatory, to sustain such a claim.

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Rather, what Complainant described involves management’s appraisals of his work,
their efforts to improve his performance, and their investigations into possible
misconduct on his part. These actions are within the realm of managerial prerogative,
authority, and responsibility. See Chere v. U.S. Postal Serv., EEOC Appeal No.
0120160867 (Oct. 12, 2017) (holding that, in the absence of evidence of a
discriminatory motive, investigative interviews, instructions, admonishments, and
disciplinary actions such as a Letter of Warning are common workplace occurrences
that do not rise to the level of hostile work environment harassment).
Here, that Complainant did not like his supervisors’ management styles, that he
disagreed with their rules or processes, and that he felt their assessment of his
performance was inaccurate does not support a conclusion that management engaged
in abusive or offensive conduct to harass Complainant or that they took any action
that was motivated by discriminatory or retaliatory animus based on his race and/or
2021 prior protected EEO 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
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.

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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).
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.

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