[Redacted], Terrance A, 1 Complainant,v.Bill Nelson, Administrator, National Aeronautics and Space Administration (Marshall Flight Center), Agency.

Equal Employment Opportunity Commission

Feb 21, 2023

Appeal No. 2022003840 (E.E.O.C. Feb. 21, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terrance A,1 Complainant, v. Bill Nelson, Administrator, National Aeronautics and Space Administration (Marshall Flight Center), Agency. Appeal No. 2022003840 Agency No. NCN-22-MSFC-00017 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated June 9, 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. BACKGROUND During the period at issue, Complainant worked as a Project Manager or Engineer, Grade GS-14, for the Agency’s Marshall Space Flight Center, at the U.S. Army Redstone Arsenal in Huntsville, Alabama. On March 2, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of religion (Christian), disability (perception of having an infectious disease) or on genetic information when: 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 2022003840 1. On November 24, 2021, the Agency confirmed to Complainant that all attendees for an on-site luncheon event with the Agency's Administrator must comply with the Agency-wide requirement that unvaccinated employees and visitors provide proof of a negative COVID-19 test prior to arrival on-site. 2. Beginning November 30, 2021, Agency messages and policies regarding government-wide vaccination and testing guidance “harassed” Complainant to become fully-vaccinated. 3. On an unspecified date, Complainant was required to attest to his vaccination status. 4. On an unspecified date, the Agency included vaccination requirements on job announcements and promotions, which prevented unvaccinated individuals from getting promotions and new job opportunities. On June 9, 2022, the Agency issued a final decision, dismissing the formal complaint pursuant to 29 C.F.R. 1614.107(a)(1). Regarding Claims 1 - 3, the Agency found that Complainant had not identified matters which adversely affected his employment. Similarly, the Agency determined that regarding Claim 4, Complainant merely asserted that the Agency’s COVID-19 program discouraged him from applying for promotions and other opportunities. However, Complainant did not allege he had been rejected or even applied for any posted vacancies for which the Agency allegedly required vaccination against COVID-19. Additionally, the Agency held that that the conduct that Complainant alleged to be discriminatory was insufficiently severe or pervasive to be construed as a viable harassment claim. The instant appeal followed. On appeal, Complainant contends that the Agency’s COVID-19 policies had stigmatized him by requiring him to either wear a mask or to test for COVID-19. Complainant argues that, in contrast, co-workers who were vaccinated for COVID-19 did not have to do so. Complainant argues further that the Agency’s COVID-19 policy infringed upon his and other employee’s religious freedom and bodily autonomy of him and other employees. Finally, he argues that the Agency’s rules about masking, testing, and disclosure of vaccination status had stigmatized him among his co-workers. 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, .106(a). 3 2022003840 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 complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). Here, we affirm the Agency’s determination that Complainant did not adequately allege that he suffered a present harm or loss over the alleged matters with respect to a term, condition, or privilege of his employment for which there is a remedy under EEOC Regulations. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). In other words, Complainant failed to show that the Agency’s action caused him to suffer direct, personal deprivation in terms of employment status. Quinones v. Dep’t of Def., EEOC Request No. 05920051 (Mar. 12, 1992). Regarding Claim 1, Agency management apparently required the event’s attendees be vaccinated against COVID-19 or have a negative result on a recent COVID-19 test. The Agency “can require mandatory COVID-19 viral testing to evaluate an employee’s continued presence in the workplace” so long as it is job-related and consistent with business necessity. Karolyn E. v. Dep’t of Def., EEOC No. 2022002840 (Sept. 19, 2022) (citing 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, at Question A.6.). Regarding Claim 2, Complainant states that Agency leadership harassed him through Agency- wide emails to employees on the subject of mandatory vaccinations for COVID-19.2 But Agency-wide emails discussing COVID-19 vaccinations do not constitute offensive conduct. Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. Therefore, without more than the allegation that he was a recipient of these Agency-wide emails, Complainant has failed to assert a viable claim of harassment under the employment discrimination statutes. Regarding Claim 3, Complainant alleged that the Agency improperly required him to disclose his vaccination status. This Commission has rejected similar discrimination claims based on COVID-19 vaccination status as opposed to those statuses that are expressly protected under C.F.R. § 1614.103(a). Cassie S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 202200245 (July 25, 2022). 2 In December 2021, a federal court issued a temporary nationwide injunction stopping the implementation of Executive Order 14043, mandating COVID-19 vaccination of federal employees. 4 2022003840 Furthermore, we reject Complainant’s GINA claims stating that the Agency solicited or used his genetic information or family medical history to discriminate against him. Here, there was no indication that the Agency improperly questioned Complainant about genetic information or his family’s medical history. Ryan L. v. Dep't of Def., EEOC Appeal No. 2021004679 (July 26, 2022)(citing 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 at Question K.14, “[t]he act of administering a COVID-19 vaccine does not involve the use of the employee’s genetic information to make employment decisions or the acquisition or disclosure of genetic information and, therefore, does not implicate Title II of GINA.”) Regarding Claim 4, Complainant in essence asserts that he did not bother to pursue advancement opportunities because he understood the COVID-19 policy to preemptively preclude his selection. We find Claim 4 simply too speculative to render Complainant “presently aggrieved” in accordance with Diaz. Moreover, Claim 4 raised generalized grievances about the Agency’s COVID-19 policy as it broadly applied to all unvaccinated Agency employees and thus fails to state a justiciable claim. Crandall v. Dep’t of Veterans Affairs, EEOC Request No. 05970508 (Sept. 11, 1997). CONCLUSION The Agency’s final decision to dismiss the formal complaint for the reasons discussed above 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). 5 2022003840 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. 6 2022003840 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 February 21, 2023 Date