[Redacted], Mario L., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2023000706 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mario L.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2023000706 Agency No. FS-CF-2022-00445 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated September 29, 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 for the Agency as an Engine Captain, Grade GS-8, at the Mark Twain National Forest in Potosi, Missouri. On August 11, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on religion (Christian), disability (perceived due to non-COVID vaccination), and in reprisal for prior EEO-protected activity (requesting exemption from the COVID-19 vaccine) when, on May 9, 2022, Complainant was instructed to enroll in the Department’s Coronavirus Disease 19 (COVID-19) screening testing program. 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 2023000706 On September 29, 2022, the Agency issued a final decision dismissing the formal complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency determined that Complainant had not been sufficiently aggrieved by enrolling in the Agency’s COVID-19 screening testing program.2 The instant appeal follows. On appeal, Complainant states that because of the Agency’s COVID-19 prevention programs, he no longer feels secure in his job and has chosen to withdraw from acquiring training to become a “burn boss.”3 Complainant maintained that after he refused to test for COVID-19, the Agency perceived him as ill or disabled despite being asymptomatic which, among other things, thwarted his prospects for promotion. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, 1614.106(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 (April 21, 1994). If a complainant cannot establish that they are aggrieved, then the agency shall dismiss their complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). Upon review, the Commission find the Agency properly dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. First, Complainant failed to allege that he was an “aggrieved employee” with respect to his withdrawal from “burn boss” training. Typically, when a complainant alleges that an agency engaged in the employment practice of failing to advance a complainant’s career, the complainant will usually allege that the agency did not select the complainant for a higher-level position, did not detail the complainant to serve in a similar higher-level position, or denied the complainant access to a particular training program. Here, Complainant did not allege that the Agency denied him access to “Burn boss” trainings or any other advancement opportunities to become a “burn boss.” Nor did the Agency allegedly give any indication to Complainant his career advancement would be affected by his refusal to comply with the Agency’s COVID-19 testing program. Instead, his allegations indicate that he chose to withdraw from such trainings on his own accord based on his subjective belief that his job was no longer secure, despite the 2 We note that record indicates the Agency ended its testing program on August 22, 2022, and Complainant was no longer subjected to the testing requirement as of that date. 3 A fair reading of the record reflects that a “burn boss” is an individual qualified to execute controlled burns to manage and restore forests. 3 2023000706 absence of any such indication from the Agency. Because Complainant did not allege that the Agency denied him any advancement opportunities to become a “burn boss,” he failed to state a viable claim with respect to his withdrawal from “burn boss” training. Complainant also challenged the Agency’s requirement that he participate in its COVID-19 testing program because he was not vaccinated against the virus. First, we note that Complainant was not required by the Agency to be vaccinated against COVD-19. In his complaint, Complainant stated, however, that the testing requirement was discriminatory because only “a portion of the workforce [those not vaccinated]” were required to test rather than the entire workforce. He also argued this Agency practice put him at risk of contracting COVID from a fully vaccinated employee who were not required to test. Based on these allegations, we find that Complainant has raised a generalized grievance, and, in so doing, the matter was insufficient to state a claim of individualized harm to his employment. Crandall v. Dep’t of Veterans Affairs, EEOC Request No. 05970508 (Sept. 11, 1997). Furthermore, although retaliation, disability and religion were raised in his formal complaint as the bases for the alleged disparate treatment, a fair reading of this record reflected Complainant’s belief, that as an unvaccinated employee, he was receiving less favorable treatment from the Agency than those employees who were vaccinated. Therefore, to the extent that Complainant has alleged discrimination based on vaccination status, we have held that an employee’s vaccination status is not a basis protected by the statutes enforced by the EEOC. Tommie O. v. Dep’t of the Army, EEOC Appeal No. 2022002436 (Aug. 29, 2022). CONCLUSION We AFFIRM the Agency's final decision dismissing Complainant's formal EEO complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). 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 4 2023000706 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. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter 5 2023000706 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 31, 2023 Date