[Redacted], Lara G., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 4, 2023

Appeal No. 2022004825 (E.E.O.C. Jan. 4, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lara G.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022004825 Agency No. 22-65236-01097 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 11, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an IT Specialist at the Agency’s facility in Hanahan, South Carolina. On July 18, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to hostile workplace discrimination on the bases of religion (Christian) and perceived disability when, beginning on May 9, 2022, and continuing to present, she received “harassing” e- mails/notifications regarding COVID-19 vaccination, testing requirements, and meeting attendance requirements; has missed out on networking opportunities; has been required to be absent from meetings; and has been hesitant to pursue training, travel, or other “get togethers” based upon the policies originating from the Secretary of Defense and approved by the Secretary of the Navy. 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 2022004825 In her formal complaint narrative, Complainant explains that “by being banished or persona non- grata they are advertising my vaccination status to other employees who have no business knowing my health record.” She maintains that, “I am being excluded out of hand for opportunities and I anticipate that I will be denied travel because of my vaccination status.” Where the corrective action or remedy is requested in her formal complaint, Complainant states, among other things, “I am requesting NIWC implement a policy prohibiting the collection or use of vaccination status as a factor for selection for assignments, promotions, training, temporary duty assignments, or other career enhancing opportunities.” 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 being informed of the now-enjoined vaccination mandate under Executive Order 14043, and other matters related to COVID-19 protective measures, there was no allegation that Complainant was aggrieved with regard to term, condition, or privilege of employment. The instant appeal followed. In her appeal statement, Complainant asserts that “the Navy was treating me as if I was the carrier of a deadly disease and the owner of a perceived disability by having me repeatedly take COVID tests to prove I was negative for COVID,” although she purportedly exhibited no symptoms. 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. While Complainant claims that she is being subjected to discrimination based on her religion and a perceived disability, a fair reading of her complaint reflects that Complainant believes that as an unvaccinated employee she is being treated differently than vaccinated employees. Complainant has not alleged that she was actually required to be vaccinated against COVID-19 in violation of her religious beliefs. Rather, she is challenging the Agency’s alternative safety measures in lieu of vaccination, especially the requirement that as an unvaccinated employee she be regularly tested for COVID-19. As such, we conclude Complainant is alleging discrimination based on vaccination status rather than on a perceived disability or religion. 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 3 2022004825 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. 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). 4 2022004825 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 January 4, 2023 Date