[Redacted], Reese W, 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jul 25, 2022

Appeal No. 2022002734 (E.E.O.C. Jul. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reese W,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022002734 Agency No. 2003-0549-2022-142925 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated March 21, 2022, dismissing a formal complaint of 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. BACKGROUND During the period at issue, Complainant worked as a Nurse Manager/Registered Nurse, Grade III/14, for the Procedures Clinic at the Agency’s North Texas Health Care System in Dallas, Texas. On February 22, 2022, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of his religion2 when he was directed by Agency 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 Complainant declined to identify his specific religion. 2 2022002734 management to conduct a weekly self-administered nasal swab test for COVID-19.3 Complainant alleged that during the test, he was forced to use [Emergency Use Authorization COVID-19 testing] products, which he believed were unsafe for internal use. Complainant said he tried to decline the test but felt coerced by management to take it. As a result, Complainant asserted he was physically harmed, including nasal irritation, post-nasal drip, nosebleed and headache. On March 21, 2022, the Agency issued a final decision dismissing the formal complaint, pursuant 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS An agency shall accept a complaint from an 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, 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 (April 21, 1994). If a complainant does not allege that they were “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). Here, we conclude that the Agency has not erred in determining that Complainant’s claim should be dismissed because it does not appear that he is presently an “aggrieved” employee. The sole basis identified by Complainant in his EEO complaint, as well as during EEO counseling, was discrimination because of his religion. However, it is undisputed that the Agency granted Complainant, a registered nurse at an Agency medical facility, an exemption from being vaccinated against COVID-19 as a requested religious accommodation. In lieu of vaccination, the Agency required him to engage in weekly testing for COVID-19 to avoid the spread of the disease at the medical facility. See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws, EEOC Technical Assistance Questions and Answers - Updated on July 12, 2022, Question A.6 (if job-related and consistent with business necessity, employers can require mandatory COVID-19 viral testing to evaluate an employee’s continued presence in the workplace). Ultimately, Complainant consented to take the COVID-19 test, but now alleges he was physically harmed by the test. However, what Complainant has described is a potential claim of job-related physical injury that might serve as the basis for a workers’ compensation claim, but not a viable claim of religious discrimination in violation of Title VII. See Colby S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2022000976 (April 18, 2022). 3 Complainant was required to submit to weekly COVID-19 testing after the Agency granted his religious reasonable accommodation request to be exempt from mandatory COVID-19 vaccination. 3 2022002734 CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim 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). 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 4 2022002734 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 July 25, 2022 Date