[Redacted], Demi A., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionDec 7, 2022Appeal No. 2022004572 (E.E.O.C. Dec. 7, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Demi A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022004572 Agency No. 200I-521-2022-146692 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 20, 2022, dismissing a formal 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a part-time Registered Nurse in various clinical settings, including the Medical Intensive Care Unit, the Cardiovascular Intensive Care Unit, the Surgical Intensive Care Unit, and the Coronary Care Unit, at the Agency’s Medical Center in Birmingham, Alabama. In response to the COVID-19 pandemic, the Agency instituted a policy that required all health care personnel to receive the COVID-19 vaccine.2 This policy apparently provided for exceptions based upon medical, religious, or pregnancy reasons. 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 According to the Agency, this was a distinct requirement from Executive Order 14043 based on its “[own] statutory authorities and is not subject to any court-imposed injunctions.” 2 2022004572 Complainant alleged that in August 2021 she requested a religious accommodation in the form of an exemption from the COVID-19 vaccine requirement. On July 8, 2022, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of religion (Christian) and being regarded as disabled due to her non-vaccinated status when, in May 2022, her request for an exemption from the COVID-19 vaccination requirement was denied. On July 20, 2022, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency found that Complainant’s claim was a generalized grievance because her claim challenged Agency COVID-19 vaccine policies which applied uniformly to all of the Agency’s heath care personnel. On appeal, Complainant cites to an email from an Agency Human Resources Specialist as evidence that her request for a religious exemption was denied. See Exhibit 1 to Complainant’s appellate brief. The email states in part, “[t]he Agency has reviewed your request for the COVID-19 vaccination exemption and has determined the accommodation would pose an undue hardship for the Agency. However, prior to being notified of a final decision, the agency will, at your request, offer you as a last result the option for a potential reassignment.” Complainant disputes that exempting her from the COVID-19 vaccination requirement imposes an undue hardship on the Agency. Complainant's representative contends that she acquired “natural immunity” after she had previously survived COVID-19 infection. Complainant considers herself to be “functionally identical” to Agency health care personnel who received the COVID- 19 vaccine. Complainant’s representative argues further that the Agency’s undue hardship rationale was unsupported because she has since continued to perform the essential functions of her nursing job throughout the pandemic except for brief absences when she had to quarantine after she was infected with COVID-19 and when she required surgery that was not related to COVID-19.3 ANALYSIS AND FINDINGS An agency shall accept a complaint from an aggrieved employee who believes that 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, 1614.106(a). EEOC’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 articulate allegations that renders her aggrieved within the meaning of EEOC’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). 3 Complainant does not allege she has been reassigned despite the asserted denial of her request to be exempt from vaccination. 3 2022004572 Here, it appears from the Human Resources email Complainant received in May 2022 that her request for a religious exemption from the COVID-19 vaccination requirement was denied by the Agency. However, the Agency has asserted, and Complainant on appeal confirms, that despite not being vaccinated she has been allowed to continue to work in her nurse position and has not been presented with a reassignment, proposed removal or issued any other adverse action. Because there is no indication in the record that Complainant was ever ultimately required to receive the COVID-19 vaccine, received the COVID-19 vaccine because of the denial of accommodation request, or was reassigned, 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 against her.4 CONCLUSION The Agency's final decision dismissing the formal 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). 4 If the Agency renews enforcement of the vaccination requirement against her, Complainant is free to renew her request for religious accommodation, and the Agency must then consider it in accordance with Title VII requirements. 4 2022004572 Complainant should submit her request for reconsideration, and any statement or brief in support of her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit 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, 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 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. 5 2022004572 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 7, 2022 Date Copy with citationCopy as parenthetical citation