[Redacted], Edgardo D., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Feb 2, 2023

Appeal No. 2022003241 (E.E.O.C. Feb. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Edgardo D.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2022003241 Agency No. PE-FY22-069 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an April 28, 2022 final Agency decision (FAD) dismissing his complaint alleging 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 Special Education Teacher at the Agency’s Humphreys Middle School in Camp Humphreys, South Korea. On April 13, 2022, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected him to harassment based on religion (Christian), disability, and reprisal for not getting vaccinated when, between January 8 and March 7, 2022, he was required to get tested weekly for COVID-19. The Agency dismissed the entire complaint as untimely because Complainant did not file his formal complaint within the 15-day time limit. Alternatively, the Agency dismissed the complaint for failure to state a claim because it was a generalized grievance. The instant appeal followed. 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. 2022003241 2 ANALYSIS AND FINDINGS Timeliness EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a complaint with an appropriate agency official within fifteen (15) calendar days after receipt of the notice of the right to file a formal complaint. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) requires an to dismiss a complaint that fails to comply with the applicable time limits contained in §§§ 1614.105, .106, and .204(c), unless the agency extends the time limits in accordance with § 1614.604(c). Here, the Agency found that Complainant’s EEO complaint was untimely. But the record is insufficient to establish when Complainant filed his EEO complaint. The complaint is dated April 1, 2022. On April 13, 2022, Complainant emailed the Agency inquiring if it received the EEO complaint that he had previously submitted. On April 18, 2022, the Agency responded that there was no record of Complainant having sent the formal complaint prior to April 13, 2022. On April 19, 2022, Complainant sent another email indicating that he was having email problems. Although the Agency determined that Complainant filed his EEO complaint on April 13, 2022, six days after the end of the 15-day time period, the record does not contain any information or documentation to support this determination. Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy v. Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). The Agency has not met its burden in supporting its dismissal. Thus, we find that Complainant’s complaint was improperly dismissed as untimely filed. Failure to State a Claim An agency shall accept an EEO complaint from any aggrieved employee or applicant for employment who believes that he 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). 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. Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). An agency is required to dismiss a complaint that fails to state a claim. 29 C.F.R. § 1614.107(a)(1). Complainant alleges the Agency subjected him to discrimination when it required him to submit to weekly COVID-19 testing because he was unvaccinated. In his complaint, Complainant wrote that vaccinated and unvaccinated people carry the virus at the same rate, but only unvaccinated individuals were required to undergo testing, and he believed this was to put pressure on him to get vaccinated in violation of his religious beliefs. On appeal, Complainant argues that it is unfair to only require unvaccinated people to get tested for COVID-19, and he would be okay getting tested if a comprehensive approach was used to reduce transmission by testing of all workers before entering a workplace, periodic testing of workers at regular intervals, testing of new workers or those returning from a prolonged absence, or some combination of approaches. 2022003241 3 Complainant does not contend being tested itself conflicts with his religious belief. We find that a fair reading of the complaint is that it is based on vaccination status rather than religion, disability, and reprisal for EEO activity. Casie S. v. Veterans Affairs, EEOC Appeal No. 2022002450 (Jul. 25, 2022) (complainant’s claim that she was required to undergo weekly COVID-19 testing, unlike vaccinated employees, based on her vaccination status, not disability, as she alleged). Vaccination status is not a basis protected by the statutes enforced by the EEOC. 29 C.F.R. § 1614.103(a). See Reese W. v. Veterans Affairs, EEOC Appeal No. 2022002734 (Jul. 25, 2022) (where the agency granted the complainant’s reasonable accommodation request exempting him because of his religious belief from the vaccination requirement, but required weekly testing in lieu of getting vaccinated, the complainant was not aggrieved). CONCLUSION Accordingly, the FAD 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, 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. 2022003241 4 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. 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 February 2, 2023 Date