Nakesha T,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 2, 2019

2019002985 (E.E.O.C. Aug. 2, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Nakesha T,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 2019002985

Agency No. 20DR-0006-2018104105

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated March 13, 2019, dismissing a formal
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

During the period at issue, Complainant worked for the Agency as a Human Resources Officer in
Washington, D.C.2 On October 25, 2018, Complainant filed a formal complaint. Complainant
claimed that the Agency subjected her to discrimination in reprisal for prior protected EEO
activity.

In its March 13, 2019 final decision, the Agency determined that the formal complaint was
comprised of the following claims:

1. On April 27, 2018, Complainant was detailed to work at VISN 5 located in
Lithicum, Maryland; and

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 The record reflects that Complainant is no longer employed with the Agency.
2019002985

2
2. On March 29, 2018, [a named management official] instructed a subordinate
employee to access Complainant’s eOPF without Complainant’s permission.

The Agency dismissed claim (1) for failure to raise the matter with an EEO Counselor and for
not being like or related to a matter which was raised with an EEO Counselor. The Agency
reasoned that the detail/reassignment occurred on April 27, 2018, prior to Complainant’s initial
EEO contact on May 11, 2018. The Agency found that Complainant did not raise this matter
during EEO Counseling.

Regarding claim (2), the Agency dismissed this matter for failure to state a claim. The Agency
found that Complainant’s claim that her personnel file was accessed by an Agency employee
was an alleged violation of the Privacy Act. The Agency found this was a collateral attack over
which the Commission does not have jurisdiction. The Agency further found that this alleged
incident was not sufficiently severe or pervasive to set forth an actionable claim of harassment.
Finally, regarding the basis of reprisal, the Agency found that the alleged incident is not
reasonably like to deter Complainant or others from engaging in protected activity.

The instant appeal followed. On appeal, Complainant asserts that the Agency’s final decision
should be reversed. Complainant asserts that she did indeed raise claim (1) with an EEO
Counselor and that this was the reason that she initiated EEO contact. Specifically, Complainant
asserts that in the “Resolution Sought” section of the EEO Counselor’s Report it provides, in
pertinent part, that she is seeking reimbursement for travel to and from VISN headquarters and
restoration of sick leave taken April 27, 2018 through June 8, 2018 (which was related to her
detail).

Regarding claim (2), her personnel file being accessed by someone who did not have a need to
know, Complainant acknowledges that the Commission does not have jurisdiction over the
Privacy Act. However, Complainant reiterates that management instructed an individual to
access her personnel file due to her prior protected activity.

ANALYSIS AND FINDINGS

The Agency improperly dismissed claim (1), the reassignment/detail to Lithicum, Maryland, for
failure to raise this matter with an EEO Counselor. Complainant, on appeal, asserts that she did
raise this matter during EEO Counseling. We are persuaded by Complainant’s assertion that she
spoke with an EEO Counselor regarding this matter. We note that the “Resolution Sought”
section of the EEO Counselor’s Report makes reference to “reimbursement for travel to and from
VISN headquarters” and “restoration of leave taken between April 27, 2018 and June 8, 2018”.
We note that these remedies appear to correspond to Complainant’s detail to Lithicum, Maryland
because she had additional travel costs and the date of the detail was April 27, 2018.
Furthermore, the Agency does not respond on appeal to Complainant’s assertion that she raised
this matter with an EEO Counselor. Based on the foregoing, we find that the Agency improperly
dismissed this claim.

2019002985

3
The Agency also improperly dismissed claim (2), for failure to state claim. We acknowledge
that the Commission does not have jurisdiction over the Privacy Act. We find, however, that the
crux of Complainant’s claim is that the management instructed an employee who did not have a
“need to know” to access Complainant’s personnel file due to Complainant’s prior protected
activity. 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. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U. S. 53 (2006)
(finding that the anti-retaliation provision protects individuals from a retaliatory action that a
reasonable person would have found “materially adverse,” which in the retaliation context means
that the action might have deterred a reasonable person from opposing discrimination or
participating in the EEOC charge process); see also Lindsey v. U.S. Postal Serv., EEOC Request
No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)).

We find that this alleged incident is reasonably likely to deter Complainant or others from
engaging in protected activity and thus has set forth an actionable reprisal claim.

We REVERSE the Agency’s final decision dismissing the formal complaint and we REMAND
this matter to the Agency for further processing in accordance with the ORDER below.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
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 (K0618)
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.
2019002985

4
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). 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.
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
2019002985

5
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 (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

August 2, 2019
Date