[Redacted], Ross R., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.Download PDFEqual Employment Opportunity CommissionJan 31, 2023Appeal No. 2022004583 (E.E.O.C. Jan. 31, 2023) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ross R.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2022004583 Agency No. IRS-22-0479-F DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 25, 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., 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Correspondence Examination Technician for the Agency’s Small Business/Self-Employed Division located in Holtsville, New York. Believing that he was subjected to unlawful discrimination based on religion (Catholic), perceived disability, and protected genetic information, Complainant filed a formal EEO complaint on June 30, 2022. On July 25, 2022, the Agency issued a final decision, and framed the claims as follows: 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. 2022004583 2 1. Complainant was asked about his COVID-19 vaccination status and was told to update the HR Connect database with his COVID-19 vaccination status. 2. Complainant was required to undergo weekly COVID-19 testing. 3. Complainant received a memorandum regarding his refusal to comply with COVID-19 testing. 4. Complainant was not allowed to enter his post of duty because he refused to comply with the weekly COVID-19 testing requirement in order to enter Agency facilities and/or interact with taxpayers in accordance with the Safer Federal Workforce Taskforce guidance. The Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. 1614.107(a)(1). The Agency determined that the formal complaint raised a generalized grievances because the alleged incidents were experienced by all Agency workers. Complainant filed the instant appeal. ANALYSIS AND FINDINGS By regulation, an agency shall accept an EEO 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 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. In his formal complaint, Complainant stated that he was notified on May 6, 2022, that because the CDC’s COVID-19 community level had changed to “medium” he would not be permitted in the building the next week because he was unvaccinated. Days later, when asked to get a COVID-19 test by his manager, Complainant responded that he was in the process of submitting a request to be exempt from testing due to his religion. Thereafter, on May 11, 2022, he received a memorandum indicating he was not allowed to enter his duty station because he refused to comply with the weekly COVID-19 testing requirement required to enter Agency facilities and/or interact with taxpayers the Safer Federal Workforce Taskforce guidance. In the formal complaint, Complainant continued to explain: “I am being discriminated against for my religious belief. I believe we are created in the image of [G]od. He gave me my immune system and I need to keep my body pure of unwanted foreign substances. . . . I feel that since I have not been vaccinated, or did not receive booster shots, that I am subject to testing and 2022004583 3 questioning because of my sincerely held religious beliefs [emphasis added].” Regarding the basis of disability, Complainant alleged the Agency perceived him as disabled because it believed he was at greater risk for COVID-19. While Complainant checked the boxes for the bases of religion and disability, we find that a fair reading of his complaint reflects that Complainant believes that as an unvaccinated employee he is being treated differently than vaccinated employees. As such, we conclude Complainant is alleging discrimination based on vaccination status rather than a disability or religion, not a basis protected by the statutes enforced by the EEOC. See 29 C.F.R. § 1614.103(a). See also, 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); Complainant v. Dep’t of Defense, EEOC Appeal No. 2022002840 (Sept. 19, 2022). Additionally, Complainant contended that requiring his vaccination status on HR Connect “violates my privacy between myself and my doctor.” However, he has not alleged improper disclosure of his Personally Identifiable Information or other health information in violation of the Rehabilitation Act. Finally, in alleging a violation of GINA, Complainant stated he was subjected to discrimination “for my protected genetic information as the ‘vaccine’ causes a spike protein by the injected genetic material that my cells would not normally make.” GINA prohibits employers from discriminating against any employee because of genetic information with respect to the employee. 29 C.F.R. § 1635.1. Genetic information means information about (i) an individual's genetic tests; (ii) the genetic tests of that individual's family members; and (iii) the manifestation of a disease or disorder in family members of such individual (family medical history). 29 C.F.R. § 1635.3(c). Complainant’s claim does not concern genetic testing or his family medical history; and he has not therefore raised a viable claim in violation of GINA. See Complainant v. United States Postal Service, EEOC Appeal No. 2022003265 (June 30, 2022). Finally, while Complainant alleges that he was temporarily not allowed to enter his office building because he refused to comply with the testing requirements during certain periods of heightened community transmission rates, it is unclear how he was harmed. He does not allege he was disciplined or subjected to any other adverse action due to his refusal to test and does not allege he was not paid when not allowed to work in the office. Without more, Complainant’s allegations are insufficient to state a viable claim of discrimination. CONCLUSION Accordingly, the Agency’s final decision to dismiss the formal complaint was proper and is AFFIRMED. 2022004583 4 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 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). 2022004583 5 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 31, 2023 Date Copy with citationCopy as parenthetical citation