EEOC Appeal 2020000831

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Onie R., 1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2020000831
Agency No. 200J06562019105444
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from the Agency's October 29, 2019 dismissal of her complaint of unlawful
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
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical
Nurse at the VA Health System located in St. Cloud, Minnesota.
On October 8, 2019, Complainant filed a formal complaint alleging that the Agency subjected her
to discrimination and a hostile work environment/harassment on the bases of sex (female) and
reprisal (prior protected EEO activity). The Agency frames her complaint to include the following
claims: 2
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.
2 Claims 1 through 4 were included in Complainant’s Formal Complaint, Claims 5 through 8 were
raised during EEO Counseling, and included in the Agency’s final decision.

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1. 	On August 23, 2019, her Supervisor (“S1”) adjusted her male colleague’s schedule
when he arrived 20 minutes late because he “forgot” he was working the early tour,
even though S1 attempted to charge her with AWOL on August 22, 2019, when she
arrived 6 minutes late,
2. 	On August 29, 2019 and unspecified dates, S1 brings her to fact finding meetings
to address issues that are not worthy of attention,
3. 	On unspecified dates, S1 plays favorites and does not support her growth as an
employee,
4. 	On unspecified dates, S1 isolates her from any opportunity for personal growth,
5. 	On September 3, 2019, she became aware that a factfinding investigation had been
initiated regarding inappropriate conduct,
6. 	In February 2019, she was charged with Absent without Leave (“AWOL”),
7. 	On July 15, 2019, S1 sent an email to the entire service telling her to resubmit her
leave request in an effort to embarrass her, and,
8. 	From August 2018 and ongoing, S1 intentionally delays responding to her leave
requests.
The Agency dismissed Complainant’s complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for
failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an
aggrieved employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion, sex, national origin, age or
disabling condition. 	29 C.F.R. §§ 1614.103, .106(a). 	The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v.
Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994). 	If complainant cannot
establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim.
29 C.F.R. § 1614.107(a)(1).
For reprisal claims, the Commission has stated that adverse actions need not qualify as "ultimate
employment actions" or materially affect the terms and conditions of employment to constitute
retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999).
Instead, claims based on statutory retaliation clauses are reviewed “with a broad view of coverage.
Under Commission policy, a complainant is protected from any retaliatory discrimination that is

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reasonably likely to deter… complainant or others from engaging in protected activity.” Maclin v.
United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007).
The Agency has the burden of providing evidence and/or proof to substantiate its final decisions.
Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), Gens v. Dep’t of
Def., EEOC Request No. 05910837 (Jan. 31, 1992), Complainant v. Dep't of Commerce, EEOC
Appeal No. 0120142525 (Nov. 25, 2014).
Claim 1
In addition to alleging that S1’s attempts to charge her with AWOL constitute harassment,
Complainant also states a claim of disparate treatment discrimination. 	The Agency offers no
documentary evidence regarding the AWOL incidents cited by Complainant. In Claim 1,
Complainant identifies a male comparator employee allegedly receiving favorable treatment.
Even if the Agency can demonstrate that Complainant’s AWOL was rescinded, or was not
formally issued, given the broad coverage of reprisal, and considering the rest of Complainant’s
claims, we find S1’s actions would deter EEO activity.
Claims 2 & 5
This Commission has generally held that complaints involving other administrative proceedings,
including those involving internal investigations or negotiated grievance procedures and related
processes, do not state a claim within the meaning of its regulations. See Hogan v. Dep’t of the
Army, EEOC Request No. 05940407 (Sept. 29, 1994); Heard v. Dep’t of Justice, EEOC Appeal
No. 0120092680 (Aug. 27, 2009). Additionally, the Commission has held that an employee cannot
use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v.
Dep’t of Defense, EEOC Request No. 05970596 (Jul. 30, 1998); Kleinman v. United States Postal
Serv., EEOC Request No. 05940585 (Sept. 22, 1994). A claim that can be characterized as a
collateral attack, by definition, involves a challenge to another forum’s proceeding. See Lingad v.
United States Postal Serv., EEOC Request No. 05930106 (Jun. 23, 1994).
The Agency dismissed Complainant’s allegations that S1 is improperly initiating and bringing her
into factfinding meetings (Claims 2 and 5) in order to harass her, as an attempt to use the EEO
process to collaterally attack on another administrative proceeding. 	However, there is no
documentation of the proceeding itself, which is necessary to allow a determination on whether
Complainant’s claims constituted a collateral attack. Therefore, we cannot dismiss Claims 2 and
5 as collateral attacks.
Typically, investigative interviews alone, do not sufficiently render an employee aggrieved unless
they result in some concrete action. Keller v. United States Postal Serv., EEOC Request No.
01923077 (Aug. 26, 1992).

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In this case, Claims 2 and 5 are part of a harassment claim, and allege reprisal, so even if an
investigation does not result in an employment action it still may be considered as part of the
overall harassment claim. See 	Jameson v. United States Postal Serv., Appeal No. 0120130992
(May 21, 2013), Ambrose v. Dep't of Transportation, EEOC Appeal No. 0120113178 (Nov. 21,
2012).
Claim 8
It is well established that under 29 C.F.R. § 1614.107(a)(1), an EEO complaint that states the same
claim that is pending before or has been decided by the Commission or the Agency must be
dismissed for failure to state a claim. 	To be dismissed as the "same claim," the present formal
complaint and prior complaint must have involved identical matters. The Commission has
consistently held that in order for a formal complaint to be dismissed as identical, the elements of
the complaint must be identical to the elements of the prior complaint in time, place, incident, and
parties. See Jackson v. United States Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996).
The Agency dismissed any alleged harassment in Complainant’s complaint that occurred prior to
December 14, 2018, including part of Claim 8, and possibly portions of Claims 3 and 4, explaining
that Complainant already raised a harassment complaint (Agency No. 200J06562018105111),
which was dismissed on December 13, 2018. However, the Agency offered no supporting
evidence, such as Complainant’s prior formal complaint, or the Agency’s Final Decision on the
prior complaint, that would allow the Commission to assess whether Complainant raised
“identical” elements in the present complaint. Without this evidence, we cannot dismiss the portion
of Complainant’s complaint that occurred prior to December 14, 2018 on the grounds that it states
the “same claim.”
Harassment/Hostile Work Environment
Where a complaint does not challenge an agency action or inaction regarding a specific term,
condition, or privilege of employment, a claim of harassment may survive if it alleges conduct that
is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. See
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
In determining whether a harassment complaint states a claim, the Commission has repeatedly
examined whether a complainant's harassment claims, when considered together and assumed to
be true, were sufficient to state a hostile or abusive work environment claim. See Harris. However,
we have repeatedly found that allegations of a few isolated incidents of alleged harassment usually
are not sufficient to state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC
Request No. 05960030 (July 12, 1996); Banks v. Dep’t of Health and Human Servs., EEOC
Request No. 05940481 (Feb. 16, 1995).
As the record does not support the Agency’s dismissals of the matters in Claims 2, 5 and 8 for
failure to state a claim, and noting the broad range of coverage afforded reprisal claims, we find
Complainant’s allegations, considered together, state a claim of ongoing harassment.

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CONCLUSION
Accordingly, the Agency's Final Decision dismissing Complainant's complaint is REVERSED and
REMANDED for further processing in accordance with the following Order:
ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108
et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. 	If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s
request for a FAD, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. 	Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999).

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If the Complainant files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the 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).

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. 	In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. 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. 	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 3, 2020
Date