[Redacted], Violet F., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022004441 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Violet F.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2022004441 Agency No. IRS-22-0478-F DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated July 20, 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 (GINA) of 2008, 42 U.S.C. § 2000ff et seq. BACKGROUND During the period at issue, Complainant worked as a Correspondence Examination Technician / Bankruptcy Coordinator, Grade GS-7, within the Agency’s Small Business & Self-Employed Examinations unit, on its Brookhaven Campus in Holtsville, New York. On June 28, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on religion (Catholic), perceived disability and 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 2022004441 Between May 6, 2022, and May 16, 2022, Complainant received email messages directing her to undergo weekly COVID-19 testing. 1. On May 11, 2022, Complainant was issued a memorandum regarding her refusal to comply with the IRS screening testing for COVID-19 policy. 2. From May 9 through May 13, 2022, Complainant was not allowed to enter her post of duty. On, July 20, 2022, the Agency issued its 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’s formal EEO complaint had raised generalized grievances, because the alleged incidents were experienced by all Agency workers. The instant appeal followed. On appeal, Complainant argues that the Agency has denied her request for a religious exemption from COVID-19 testing. Complainant maintains that COVID- 19 testing is unrelated to her individual job and is not a business necessity. Complainant disputes the Agency’s characterization of her claim as a generalized grievance. Complainant argued that the Agency’s issuing a memo threatening discipline and denying her access to the workplace were personal deprivations. Complainant also asserted her manager’s frequent emails about COVID-19 testing has caused emotional harm. Additionally, she asserts that she should have been placed in in an indefinite administrative leave status throughout the pendency of her requests for religious exemptions from Agency COVID-19 policies. ANALYSIS AND FINDINGS The Agency shall accept an EEO complaint from any aggrieved employee or applicant for employment who believes that she has been discriminated against by the Agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, 1614.106(a). This 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 under EEOC regulations. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Under 29 C.F.R. § 1614.107(a)(1), the Agency shall dismiss a complaint if it fails to state a valid EEO claim. Complainant explained that the CDC had increased, from “low” to “medium,” the COVID-19 community-transmission level for the Agency facility where she works. As a result, on May 6, 2022, her manager emailed that Complainant had to be tested for COVID-19 in order enter their workplace. The Agency also provided Complainant instructions for arranging COVID-19 testing. Responding via email, Complainant refused to schedule COVID-19 testing and declined to order COVID-19 testing kits. Complainant then informed her manager that she had requested a religious exemption from COVID-19 testing. On May 11, 2022, the Agency issued the memo 3 2022004441 notifying Complainant that refusal to follow the Agency’s COVID-19 testing policy may subject her to discipline, including removal. On her formal EEO complaint form, Complainant has written: I am being discriminated against for my religious beliefs not to defile by body with unwanted intrusions. . . Additionally, I am being discriminated against as having a perceived disability, for a communicable disease . . . I am being discriminated against for my protected genetic information because I am unvaccinated for COVID-19. While Complainant describes her claims against COVID-19 testing in terms of religious discrimination or based on a perceived disability or genetic information, a fair reading of this complaint is that Complainant is accusing the Agency of treating her less favorably than its employees who elected to receive the COVID-19 vaccine. We therefore conclude Complainant is alleging discrimination because she is unvaccinated for COVID-19, and because of her ongoing refusal to submit to COVID-19 testing. Neither of these characteristics is protected under the statutes the Commission enforces. 29 C.F.R. § 1614.103(a). If COVID-19 testing is job-related and consistent with business necessity, EEOC has decided that “employers can require mandatory COVID-19 viral testing to evaluate an employee’s continued presence in the workplace.” 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. Moreover, EEOC has affirmed dismissal for failure to state claim where the complainant has alleged discrimination based on individual choice to remain in an unvaccinated status. Karolyn E. v. Dep’t of Def., EEOC Appeal No. 2022002840 (Sept. 19, 2022). Regarding GINA, Complainant has stated the Agency discriminated against her because genetic material within the COVID-19 vaccine causes a spike protein that her cells would not normally make. GINA prohibits discrimination against any employee because of genetic information. 29 C.F.R. § 1635.1. Genetic information means information about: (i) an individual's genetic tests; (ii) 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). Regardless of the COVID-19 vaccine’s biological mechanism, Complainant’s allegations did not involve information about her genetic tests or genetic testing of her family members. Also, she has not alleged discrimination related to her family medical history. Therefore, she has failed to state a viable claim that the Agency violated GINA. Buck S. v. U. S. Postal Serv., EEOC Appeal No. 2022003265 (June 30, 2022). Finally, while Complainant alleges that she asked for a religious exemption from Covid testing and never got a response, it is unclear how she was harmed. While she does assert she received a memo stating that she needed to be tested to work in office and refusal could result in discipline, she does not allege she was ever disciplined. She apparently refused testing and was not allowed to come into office for some period of time, but does not allege she was not paid. In the EEO 4 2022004441 counseling report, she said the harm that resulted from not entering the building when CDC level was Medium or higher (which was when testing was required) was (in her own words): “Inability to report to the building to adequately perform my job duties.” Without more, this alleged harm was very speculative and 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. 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, 5 2022004441 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 January 31, 2023 Date