EEOC Appeal 2020001249

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kristofer D.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2020001249
Hearing No. 570-2017-00899X
Agency No. 2004-0688-2016102689
DECISION
On November 25, 2019, 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
October 30, 2019 final order concerning an 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.
BACKGROUND
Complainant participated in a work study program wherein the Agency assigned Complainant to
its Medical Center in Washington, D.C. (DC VAMC). On February 8, 2016, Complainant began
working in DC VAMC’s EEO Office. On February 19, 2016, the EEO Office’s Chief of Diversity
and Inclusion (EEO activity unknown) told Complainant his services were no longer needed. In a
letter dated June 6, 2016, the Agency terminated Complainant’s work study contract effective May
11, 2016.
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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On June 1, 2016, Complainant filed the instant formal complaint, claiming that the Agency
discriminated against him in reprisal for prior protected activity (Agency No. 2004-0688-
2005103815), when:
on February 19, 2016, the Agency terminated his work study contract.
The Agency initially dismissed the formal complaint for failure to state a claim reasoning that as
a work study program beneficiary, Complainant did not qualify as employee or applicant for
purposes of Title VII. In, On appeal, the Commission reversed the Agency’s final decision and
remanded the matter for the Agency to develop evidence necessary to determine whether
Complainant was a common law employee through his participation in the work study program.
Complainant v. Department of Veterans Affairs, 	EEOC Appeal No. 0120170140 (November 29,
2016).
Following remand, and after an investigation, the Agency provided Complainant with a copy of
its report of investigation. 	The Agency notified Complainant of the right to request a hearing
before an EEOC Administrative Judge (AJ). 	Complainant timely requested a hearing and on
October 3, 2019, the AJ held the hearing. On October 25, 2019, the AJ issued a decision finding
no discrimination. On October 30, 2019, the Agency issued a final order, implementing the AJ’s
decision.
The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” 	Universal
Camera Corp. v. Nat’l Labor Rel. Bd,, 340 U.S. 474, 477 (1951) (citation omitted). 	A finding
regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Std. Co.
v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard
of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the testimony
or the testimony so lacks in credibility that a reasonable fact finder would not credit it. EEOC
Management Directive 110, Ch. 9, at § VI.B. (Aug. 5, 2015).
To the extent Complainant alleged the Agency failed to consider his veteran status, that issue is
beyond the jurisdiction of EEO statutes and this Commission.
We now turn to the merits of the AJ’s decision and the Agency’s order. Under the U.S. Supreme
Court’s three-part evidentiary test from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973), Complainant can establish a prima facie case by presenting facts that, if unexplained,

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reasonably give rise to an inference of reprisal discrimination. Shapiro y. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Complainant may establish a prima facie case by showing
that: (1) he engaged in protected activity; (2) the Agency was aware of his protected activity; (3)
subsequently, the Agency subjected him to adverse treatment; and (4) a nexus exists between
Complainant’s protected activity and the Agency’s adverse treatment. Whitmire v. Dep’t of the
Air Force, EEOC Appeal No. 01A00340 (Sep. 25, 2000). 	To show a nexus, Complainant may
present evidence that Agency adverse treatment followed his protected activity in such a period of
time and in such a manner that a reprisal motive is inferred. Clay v. Dep’t of the Treasury, EEOC
Appeal No. 01A35231 (Jan. 25, 2005). This Commission considers reprisal claims with a broad
view of coverage. 	Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000).
We have consistently held that adverse actions need not qualify as “ultimate employment actions”
or materially affect the terms and conditions of employment to constitute retaliation. 	EEOC
Compliance Manual Section 8: Retaliation. No. 915.003, at 8-15 (May 20, 1998); Burlington N.
and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding Title VII’s anti-retaliation provisions
protect employees from retaliatory actions that a reasonable person would have found “materially
adverse.” 	In the retaliation context, this means that an action might have deterred a reasonable
person from participating in the EEO process. To ultimately prevail, Complainant must prove the
Agency’s explanations pretextual, by a preponderance of the evidence. See Reeves v. Sanderson
Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
519 (1993).
Assuming that Complainant established a prima facie case of reprisal, we nevertheless determine
that the Agency has proffered legitimate, nondiscriminatory a reason for terminating Complainant
from its work study program. The Agency stated that on February 19, 2016, Complainant had been
assigned to an EEO intake interview. Two eyewitnesses testified before the AJ that Complainant
failed to comport himself in a professional manner. 	Specifically, both an employee receiving
informal counseling, as well as an EEO Assistant, stated Complainant fell asleep at twice and had
even snored during the interview. Complainant did not deny this behavior on February 19, 2016,
but rather contended that his performance had been otherwise exemplary. 	During the same intake
interview, upon hearing the distraught counselee’s sexual harassment allegation, Complainant
made a statement to the effect of “they’re giving you a hard time because you're young and pretty.”
According to Complainant, his “young and pretty” comment had been intended to help the
interviewee contextualize her claim. We concur with the Agency that Complainant’s remark was
inappropriate under the circumstances.
Finally, we determine that Complainant has not established that the Agency’s action was
pretextual.

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CONCLUSION
We AFFIRM the Agency’s final order, implementing the AJ’s decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if Complainant or the
Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 	In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. 	Any
supporting documentation must be submitted with your 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(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
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 his or her 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.

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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:
______________________________ 	Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
September 30, 2020
Date