[Redacted], Ervin P., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.

Equal Employment Opportunity Commission

Jan 4, 2023

Appeal No. 2022004811 (E.E.O.C. Jan. 4, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ervin P.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (National Institutes of Health), Agency. Appeal No. 2022004811 Agency No. HHS-NIH-NIA-086-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 10, 2022, dismissing his complaint alleging 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 Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Post-Doctoral Trainee (Fellow) at the Agency’s National Institute on Aging in Baltimore, Maryland. On July 6, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to on the bases of disability (perceived medical condition: not vaccinated for COVID-19) and genetic information (vaccination status) when: 1. On May 19, 2022, he received an e-mail requiring him to undergo COVID-19 testing and indicating that failure to meet the testing requirements may lead to disciplinary action. 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 2022004811 2. On July 1, 2022, he received an e-mail of COVID-19 Community Levels and Safety Guidance for NIH Facilities and believed this to be harassment 3. In 2022, he received “hundreds” of e-mails attempting to force him to participate in discriminatory unwanted medical testing. In statement attached to his formal complaint form, Complainant conveys his belief that the COVID-19 vaccine mandate has amounted to harassment, specifies his medical condition as “being unvaccinated” and complains that the Agency “broadly applied [its COVID-19] policies to [him] as a class of people.” Complainant asserts the Agency perceives that employees “who have not provided proof of vaccination are suffering from an ADA and Rehabilitation Act-defined disability (communicable disease) and [the Agency] is discriminating against them due to the perception (without evidence) that the unvaccinated either currently have or will imminently become infected with COVID-19.” Complainant believes that the Agency is “engaging in genetic discrimination, in medical condition discrimination, and in perceived disability discrimination by treating employees who have not provided proof of vaccination against COVID-19 materially worse than employees who admit to being vaccinated.” The Agency issued a decision dismissing the complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency reasoned that other than receiving information on the now- enjoined vaccination mandate under Executive Order 14043 and other matters related to COVID- 19 protective measures, there was no evidence that any term, condition, or privilege of employment was adversely impacted, and Complainant is not aggrieved. The Agency also found that Complainant failed to state a viable claim of hostile work environment discrimination. The instant appeal followed. In his appeal statement, Complainant argues that the Agency’s COVID-19 policies “discriminate based on vaccination status,” and the Agency “deprived him of his rights under discrimination laws by imposing employment rules differently based on individual status of being vaccinated or unvaccinated with the gene altering covid vaccines.” ANALYSIS AND FINDINGS 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). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. 3 2022004811 While Complainant claims that he is being subjected to discrimination based on a perceived disability, and his genetic information is being used to illegally discriminate against him, a fair reading of his complaint reflects that Complainant believes that as an unvaccinated employee he is being treated differently than vaccinated employees. We conclude Complainant is alleging discrimination based on vaccination status rather than on a disability or on genetic information. Complainant’s vaccination status is not a basis protected by the statutes enforced by the EEOC. See 29 C.F.R. § 1614.103(a). Complainant does not allege that he was required to be vaccinated, but rather challenges the Agency’s requirement that he be regularly tested for COVID-19 in lieu of vaccination. An agency-wide policy mandating weekly COVID-19 testing for unvaccinated employees is insufficient to render a complainant “aggrieved”. See Colby S. v. Veterans Affairs, EEOC Appeal No. 2022000976 (Apr. 18, 2022) (noting that the policy did not cause the complainant to be treated differently from other employees or result in a personal harm to the complainant); What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws, EEOC Technical Assistance Questions and Answers (“EEOC COVID-19 Guidance”) at Question A.6 (Updated on July 12, 2022) (does not state a claim when COVID-19 testing is consistent with guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities that is current at the time of testing); 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 citing Colby S. and EEOC COVID- 19 Guidance). 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. 4 2022004811 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. 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. 5 2022004811 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 January 4, 2023 Date