[Redacted], Ambrose M., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Dec 13, 2022

Appeal No. 2022004361 (E.E.O.C. Dec. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ambrose M.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022004361 Agency No. DON-22-68733-00742 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a July 25, 2022 final Agency decision (FAD) dismissing his complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Quality Assurance Specialist, NH-1910-02, Strategic Weapons Facility, Atlantic (SWFLANT), CA Missile Processing Section, Quality Verification Branch, in Kings Bay, Georgia. On June 30, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on disability (unspecified physical/medical status) when, since March 25, 2022, because he has not been vaccinated against COVID-19, he has been required to wear a mask at work and vaccinated people are not required to do so. He wrote, “I await the results of my pending reasonable accommodation.” The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim because all unvaccinated employees are subject to the same COVID-19 safety requirements. 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. 2022004361 2 The instant appeal followed. On appeal, Complainant states that the masking requirement policy at his facility “segregates unvaccinated and vaccinated personnel” and makes him feel look like he is someone who is “questioning authority”. He states he believes he is being treated differently than vaccinated federal employees because recommendations from federal agencies state nothing about “segregating the vaccinated vs. unvaccinated population as it pertains to masking.” He reiterates that still awaits the “results of my pending reasonable accommodation.” In response, the Agency’s requests that we affirm the FAD. It argues that vaccination status is not a protected class under the Commission’s regulations. In addition, for the first time, the Agency asserts that Complainant’s initial EEO contact is untimely. The Agency reasoned that Complainant has been required to wear a mask since July 2021, but did not initiate EEO contact until March 25, 2022, outside of the applicable time limit. ANALYSIS AND FINDINGS An agency shall accept a complaint from an aggrieved employee or applicant from employment who believes that he 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). An “aggrieved employee” is 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. 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. 29 C.F.R. § 1614.107(a)(1). Complainant writes he awaits the “results of my pending reasonable accommodation”, but there is no allegation by him in the record that he has a medical impairment that requires an accommodation or prevents him from safely wear a mask. Rather, Complainant alleges he was treated differently than unvaccinated employees with respect to masking. A fair reading of the complaint is that it is based on vaccination status, not disability. Casie S. v. Veterans Affairs, EEOC Appeal No. 2022002450 (Jul. 25, 2022) (complainant’s claim that she was required to undergo weekly COVID-19 testing, unlike vaccinated employees, based on her vaccination status, not disability, as she alleged). Vaccination status is not a basis protected by the statutes enforced by the EEOC. See 29 C.F.R. § 1614.103(a). For the reasons set forth herein, we AFFIRM the Agency’s final decision dismissing the formal complaint.2 2 Because we affirm the Agency’s dismissal for the reason discussed above, we need not address the Agency’s timeliness argument raised for the first time on appeal. 2022004361 3 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). 2022004361 4 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 December 13, 2022 Date