[Redacted], Bernardina N., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 6, 2022

Appeal No. 2022004427 (E.E.O.C. Dec. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bernardina N.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022004427 Agency No. 200I-521-2022-146370 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 13, 2022, dismissing her complaint alleging 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 Nurse Anesthetist at the Agency’s VA Medical Center in Birmingham, Alabama. On June 22, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of religion (Christian) when, on April 20, 2022, management denied her request for a religious accommodation to be exempt from the Agency’s vaccine mandate (Executive Order 14043), requiring Covid-19 vaccination for all Agency employees. In an attachment to her formal complaint, Complainant stated that on May 11, 2022, she received notification that her accommodation request would cause the Agency undue hardship. Complainant stated that because she did not receive the Covid-19 vaccine, Agency officials told her that she would face reassignment or termination. 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. 2022004427 2 However, one month later in June 2022, Complainant advised the EEO Counselor that she was working in her current position as a Nurse Anesthetist, and had not been presented with a reassignment, proposed removal or issued a termination. On July 13, 2022, the Agency dismissed Complainant’s claim pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state claim. The Agency reasoned that Complainant’s claim constituted a generalized grievance since Executive Order 14043 required the Agency to implement a program requiring all of its employees to get vaccinated. The instant appeal followed. On appeal, Complainant argues that even though her religious beliefs have not been compromised and she has not been terminated, she is “facing pressure to violate her religious beliefs in violation of the law,” specifically Title VII, the Constitution, and the Religious Freedom Restoration Act. In response, the Agency contends that Complainant is not an “aggrieved” employee because she has not been required to obtain the vaccine or disciplined for doing so. The Agency argues that although it has not granted Complainant’s request for accommodation, it has not made a final decision on the matter or taken any action against her. ANALYSIS AND FINDINGS By regulation, an agency shall accept a complaint from any 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 (Apr. 21, 1994). If a complainant does not allege that they were “aggrieved” within the meaning of the Commission’s regulations, then an agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). There is currently a preliminary nationwide court injunction on the enforcement of Executive Order 14043. To ensure compliance with the injunction, the President’s Safer Federal Workforce Task Force has advised federal agencies to take no action to implement or enforce the COVID- 19 vaccination requirement under Executive Order 14043. As a result, enforcement of the vaccination mandate has ceased, thereby eliminating the need for the requested accommodation. This is confirmed by Complainant’s counseling session, during which time she informed the EEO Counselor that she is presently working in her current position as a Nurse Anesthetist, and had not been presented with a reassignment, proposed removal or issued a termination. 2022004427 3 Because there is no indication in the record, including consideration of Complainant’s statement on appeal, that Complainant was ever ultimately required to receive the COVID-19 vaccine, received the COVID-19 vaccine because of the denial of the accommodation request, or was disciplined or received any other adverse action for failing to be immunized, she has not alleged a present harm regarding a term, condition, or privilege or her employment that would sufficiently render her “aggrieved” to state a claim under Title VII. We find that Complainant has failed to allege a cognizable harm by the mere existence of the vaccination mandate, which is currently not being enforced.2 CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) 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 Operations (OFO) within thirty (30) calendar days of receipt of this decision. 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 his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, 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, 2 If the Agency renews enforcement of the vaccination requirement, Complainant is free to renew her request for religious accommodation, and the Agency must then consider it in accordance with Title VII requirements. 2022004427 4 Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO 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 his or her 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(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. 2022004427 5 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 December 6, 2022 Date