EEOC Appeal 2020000196

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Linn L.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs (VA)
(Veterans Health Administration),
Agency.
Appeal No. 2020000196
Agency No. 2003-0686-2019102116
DECISION
On September 13, 2019, Complainant filed a timely appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated
August 16, 2019, dismissing her complaint of unlawful employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. 	§ 791
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
§ 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Recreation Therapist, GS-11 at the Veterans Affairs Medical Center (VAMC), Geriatrics and
Extended Care, in Leavenworth, Kansas. For 20 or more years she also served as the local National
Federation of Federal Employees (NFFE) Union President. She performed Recreational Therapist
duties every other month once a week for half days, which accounted for 5% of her full-time
schedule, and for the remaining 95% exclusively performed her union function on official time.
On July 3, 2019, Complainant filed an equal employment opportunity (EEO) complaint alleging
that the Agency subjected her to a hostile work environment based on her disability, age (62 - 65),
and reprisal for prior protected EEO activity when:
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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1. 	After beginning as a representative in an EEO case in July 2016, has been stalked daily in
her car on and off Agency premises, and the Agency has not investigated.2
2. 	On or about November 2017, the Hospital Director; American Federation of Government
Employees (AFGE) union officials; and two others collectively set her up for an adverse
action by saying she would not let an employee leave a room, which was not true.
3. 	On December 7, 2017, while she was working in the union office, the Hospital Director
called her and said at least three times that she was psychologically unsafe to a co-worker,
which was not true.
4. 	On or about January 22, 2018, at an Administrative Investigative Board (AIB) meeting, the
Hospital Director said she blocked an AFGE employee from leaving a room, questioned
what she did when she interviewed the employee as a union representative, and was
insulting, rude and disrespectful toward her.
5. 	On 	or 	about 	February 	24, 	2018, 	she 	was 	told 	by 	a 	concerned 	friend 	that 	in
October/November 2017, “they” were out to get her, and in March 2017, at a local bar off
the Agency campus, he heard the Human Resources (HR) Chief, another Agency employee
(only identified by name), and a third unidentified employee loudly saying she needed to
retire and was only making pennies on the dollar.
6. 	On or about June 15, 2018, while on lunch break in a parking lot, a man in a navy blue
SUV stalked her, and all through the summer she was stalked by various vehicles to and
from work, and while off work.3
7. 	On July 30, 2018, at Walmart she was stalked by a co-worker son’s friend with several
other vehicles and stalkers, she reported this to S1, the Geriatrics and Extended Care
Service Line Manager (Geriatrics Manager), the HR Chief, and the VA police and the
Agency did not investigate.
2 During intake, Complainant stated the stalkers are friends of the person she represented.
3 In July 2018, Complainant’s first line supervisor (S1) wrote contemporaneous Reports of Contact
recounting contacts as follows. On July 19, 2018, Complainant reported being stalked by vehicles,
said a person followed her in the community and then another waits for her on VA grounds like a
hand off, believes the followers are coming from AFGE and/or the Agency, and while the VA
police advised there is an active investigation, they are “in” on it because they are represented by
the AFGE Union President, and “this goes deep.” On July 25, 2018, Complainant reported she has
multiple license plate numbers of those who follow her, and that the Agency has spent $86,000 on
a Private Investigator to watch and follow her. On July 30, 2018, Complainant reported that her
telephone is being monitored and believed a tracking device was on her car, which is how she is
tracked.

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8. 	On August 2, 2018, after reporting stalking to the HR Chief with examples of who, what
and where and whom she believed were involved there was no investigation and the HR
Chief refuses to talk to her any longer.
9. 	On August 6, 2018, via email she reported being followed and whom she believed was
doing so to the HR Chief and no investigation followed.
10. On or about August 9, 2018, she reported stalking to the HR Chief, and no investigation
followed.
11. On or about August 29, 2018, she went to a national cemetery to visit her deceased husband
and she saw a car parked up on a hill far off waiting for her to come to the cemetery
watching her, and then the car and a second one awaiting her stalked/followed her when
she left.
12. On or about October 8, 2018, while driving with her 91-year-old mother as a passenger,
cars pulled out in front of her in an unsuccessful attempt to stage a car accident, and she
believes the perpetrators were the AFGE Union President’s friends.
13. On or about October 23, 2018, she reported to S1 that she was being stalked both on and
off the VA campus, and there was no investigation.
14. On or about October 25, 2018, the Geriatrics Manager said she could not talk to her about
concerns unrelated to the 5% of her duty time as a Recreation Therapist, giving 	no
assistance concerning her being stalked on and off work.
15. On or about November 1, 2018, at a meeting she requested with the Geriatrics Manager to
report stalking, the Geriatrics Manager had an Employee Relations/Labor Relations
(ER/LR person) join rather than meet alone. She reported being stalked by vehicles both
on and off the VA campus, who she thought was involved, and 	the attempt to stage an
accident with her mother in the car. The Geriatrics Manager responded that this sounded
like a conspiracy, she may have a mental health problem, offered no advice other than to
report the stalking to the local authorities because this was not an Agency concern, and
failed to have the Agency investigate. 4
4 After the meeting, the Geriatrics Manager wrote a contemporaneous Report of Contact. She
recounted as follows. Complainant reported being “gang-stalked” by people she does not recognize
before and after work and on and off the VA campus, this has been arranged by VA employees,
the Leavenworth Police Department, and personnel in the town prison, this goes “really deep”,
they use friends and family to stalk her, they monitor her cell phone and car and coordinate with
each other, and the local prosecuting attorney and the Agency’s Office of Inspector General are
involved. The VA has tapped her telephone and computer, there were two recent incidents of
stalkers attempting to stage an automobile accident with her in town, and in connection with her
being at Walmart, 20 or more cars came into its parking lot. In response to asking Complainant if

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16. On January 10, 2019, in a meeting with the Hospital Director, he asked her “What
[retirement] system are you in?”, to which she responded the old system, asked “How many
years do you have?”, to which she responded around 37, and then said, “Do you know that
you are only making pennies on the dollar?” to which she responded she earns about 10%
more working and would continue to work after retiring, to which he responded “Where,
here? Where would you work?”
17. As a grievant representative she was on a telephone call on March 6, 2019, with a Labor
Management Specialist, and after they had a disagreement the latter said “You’re crazy.
Next I know you are going to say that you broke out with something”, a reference to her
having shingles breakouts when stressed.
The Agency dismissed the complaint for lack of standing because it appeared it concerned things
that occurred when Complainant was serving as the Union President, not as an employee. It found
that a portion of her complaint failed to state a claim because it constituted using the EEO process
to collaterally attack the VA Police’s decision not to investigate her stalking allegations. It found
that incidents 14 – 17 failed to state a claim because they did not rise to the level of actionable
harassment or would reasonably deter EEO activity. The instant appeal followed.
ANALYSIS AND FINDINGS
Here, despite the Agency’s assertions to the contrary, we conclude that Complainant has standing
to file the EEO complaint at issue.5 On appeal, via counsel, Complainant cites cases for the
proposition that she has standing. She cites Good v. USPS, EEOC Appeal No. 01892450 (July 31,
1989) (while a claim by an employee that he was discriminated against for his activities as a union
steward does not fall within the purview of EEO law, he also claimed the same discriminatory
events were motivated by his previously filing a complaint which states a claim of reprisal) and
Smith v. Veterans Affairs, EEOC Appeal No. 01A20144 (Feb. 26, 2003) (a Police Chief alleged
discrimination when an AFGE official falsely accused him of having people monitor him, the
union falsely accused him of placing security cameras in the women’s restrooms, an AFGE official
falsely informed an Engineering Service employee that the Police Chief threatened to arrest him,
an AFGE official told one of his subordinates that the Police Chief is not going to make it off
probation, etc., and agency management allows this hostile work environment to exist.
she suspected being monitored before she was a representative in an EEO case in 2016, she said
no and did not have a mental health diagnosis, which was not asked, and later spontaneously said
she did not have a history of mental health disorders. Complainant said that after she reported her
issues to the local police for the third time, the Chief of Police “ran her out” and “didn’t want to
hear about more stalking complaints” so went to internal affairs to file police reports.
5 In reply to Complainant’s brief, the Agency argues in part that her brief was untimely filed. While
we agree, we exercise our discretion to consider the brief.

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While the agency contends these matters involve union, not agency actions, these claims
encompass matters over which agency management, not merely union officials have influence
because the complainant was purportedly subjected to harassment, insults and threats, and the
agency did nothing to stop such behavior).
Complainant further argues that her complaint states a viable claim of harassment and would
reasonably likely deter EEO activity.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment.
The Court explained that an "objectively hostile or abusive work environment [is created when] a
reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives
it as such. Harris, at 21-22. Thus, not all claims of harassment are actionable. Where a complaint
does not challenge an agency action or inaction regarding a specific term, condition or privilege
of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the
complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the
complainant's employment.
The Commission has a policy of considering reprisal claims with a broad view of coverage. See
Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission
policy, claimed retaliatory actions which can be challenged are not restricted to those which affect
a term or condition of employment. Rather, a complainant is protected from any discrimination
that is reasonably likely to deter protected activity. See EEOC Enforcement Guidance on
Retaliation and Related Issues, at 5-19 (REV. Aug. 25, 2015).
In general, when examining whether or not a complaint states a viable claim of harassment, we
assume, for the sake of analysis, that Complainant’s allegations will be proven true. 	Here,
however, is one of the rare exceptions. 	We find that Complainant’s stalking allegations are so
speculative that they cannot state a viable claim of employment discrimination or retaliation. While
Complainant alleges she has been stalked since July 2016 for being an EEO representative, she
does not identify any specific stalkers. Her assertions that Agency officials and employees are
somehow involved seems to be based on pure conjecture. The details provided by Complainant of
the stalking allegations do not sufficiently allege facts to indicate that they are more than
speculation, or for that matter, based in reality. Bejar v. Veterans Affairs, EEOC Appeal No.
01A11321 (Apr. 3, 2001) (the complainant, a Physician, alleged that the Director of Primary Care
Service encouraged his subordinate female employees to sexually harass him in an attempt to
remove him which manifested in a physical therapy student requesting that he show her around
the city and join her for lunch or dinner and several female Physical Therapists staring and walking
straight towards him. The complainant’s claims regarding the Director were merely speculation
without any support, and hence fail to state a claim); Complainant v. DoD, EEOC Appeal No.
0120122055 (Sep. 25, 2015) (after being forced out of the Agency, the complainant applied for at
least five positions to no avail.

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She contacted a Recruiter for a private employer about an EEG Technologist position who, after
receiving her resume, sounded very positive that a position was going to become available.
However, she was later told that she was not eligible. The complainant filed an EEO complaint
alleging that the Recruiter spoke with her former supervisor and as a result was not considered for
the job. The EEO counselor contacted the private employer and was advised no EEG position was
available when the complainant contacted the Recruiter, nor was there any indication in emails
provided by the complainant between herself and the Recruiter that the Recruiter contacted her
former supervisor. As such, the complainant’s claim is merely based on speculation and hunch,
and hence fails to state a claim).
Because Complainant’s stalking allegations are speculative, we find that the failure by various
components of the Agency to chase them down also fails to state a claim.6
We find that the remaining allegations, i.e., 2 – 4, 5 (local bar portion) and 15 – 17 fail to rise to
the level of actionable harassment and would not reasonably likely deter EEO activity. It appears
that allegations 2 – 4 all concern the same matter – Complainant being accused, in her role of an
NFFE representative, of not letting an AFGE employee leave the room whom she was questioning.
Regarding this, Complainant has not indicated anything more than management being concerned
and trying to get at the bottom of what occurred – no threats or implementation of any discipline.
The remaining allegations merely concern minor venting by various people in management.
Accordingly, the FAD’s dismissal for failure to state a claim is AFFIRMED.
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.
6 Accordingly, we need not determine if a portion of the complaint failed to state a claim because
it constituted a collateral attack on the VA Police’s decision not to investigate Complainant’s
stalking allegations.

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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. 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.

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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 15, 2020
Date