[Redacted], Valery G., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity Commission

Aug 16, 2022

Appeal No. 2022002547 (E.E.O.C. Aug. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Valery G.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency. Appeal No. 2022002547 Agency No. 22015 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 6, 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. BACKGROUND During the relevant time, Complainant worked for the Agency as a Customer Experience Specialist in Fort Rucker, Alabama. On February 23, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of religion (Christian) when, on January 15, 2022, the Agency's Accommodation Response Team denied her request for a religious accommodation to be exempt from the mandate to be vaccinated with the COVID-19 vaccine. On April 6, 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). 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. 2022002547 2 The Agency also dismissed the formal complaint on the alternative grounds of failure to cooperate, pursuant to 29 C.F.R. § 1614.107(a)(7). The Agency had emailed Complainant a Notice of Intent to Dismiss letter, on February 28, 2022, and requested that Complainant provide a statement of the specific harm she was alleging to the terms, conditions, or privileges of employment. Specifically, the letter asked Complainant to identify what, if anything, happened to her as a result of the denial. Complainant did not provide a response to the information requested. 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 she is presently an “aggrieved” employee. In the narrative portion of her formal complaint, Complainant has alleged that she was denied her request for a religious accommodation to be exempt from the mandate to be vaccinated with the COVID-19 vaccine. In the complaint, Complainant also indicated her willingness to continue with alternative health measures, including masking, weekly testing, social distancing, self- monitoring for symptoms and quarantining if necessary. The related EEO counseling report contains essentially the same information. As already noted, upon receipt of her complaint, the Agency sent Complainant a letter asking her to identify any harm she suffered as a result of the denial of her accommodation request. The record indicates that the Agency sent Complainant the request to identify the harm she suffered because of a Federal Court injunction blocking implementation of Executive Order 14043, which mandated all Federal employees receive the COVID-19 vaccine. Complainant did not respond to the Agency’s request for more information. However, there is no indication in the record, including consideration of Complainant’s statement on appeal, that Complainant was ever ultimately required to receive the COVID-19 vaccine, received the COVID-19 vaccine because of the denial of the accommodation request, or was disciplined or received any other adverse action for failing to be immunized. Consequently, Complainant has not alleged a present harm related to employment for which there is a remedy. 2022002547 3 However, given the circumstances of the request having been denied rather than held in abeyance by the Agency, we note that if the Agency renews enforcement of the vaccination requirement, Complainant is free to renew his request for religious accommodation, and the Agency must then consider it in accordance with Title VII requirements. Because we affirm the Agency’s determination that Complainant was not an aggrieved individual, we need not address the Agency’s alternative ground for dismissal of this complaint. CONCLUSION For the reasons discussed above, the Agency's final decision dismissing the formal 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. 2022002547 4 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 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 August 16, 2022 Date