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

Equal Employment Opportunity Commission

Sep 29, 2022

Appeal No. 2022002597 (E.E.O.C. Sep. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Archie G.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022002597 Agency No. DON 22-60530-00147 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated March 17, 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 period at issue, Complainant worked as an Engineering Technician, Grade GS-4, at the Naval Air Warfare Center Weapons Division in China Lake, California. On November 15, 2021, Complainant initiated contact with an EEO Counselor, and the parties were unable to resolve the matter informally. On February 15, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on religion (Christian) 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 2022002597 1. President Joseph Biden issued Executive Order 14043 mandating all federal employees be fully vaccinated against COVID-19. Complainant alleges Executive Order 14043 was a threat of physical harm due to side effects experienced by those who received the vaccine. 2. The Secretary of the Navy sent an All-Hands email containing a "Request for COVID-19 Vaccine Exemption for Religious Reason/Religious Accommodation" document which Complainant alleges denies him EEO protections and subjects him to examination, scrutiny, and a disregard of his beliefs. 3. Upon review of the "Request for COVID-19 Vaccine Exemption for Religious Reason/Religious Accommodation" document within the All-Hands email Complainant became aware that it asked for "self-incriminating" and "entrapping" questions. Complainant alleged that this was an act of intimidation, coercion, and a direct violation of "long-held and highly regarded standards." On March 17, 2022, the Agency issued a final decision dismissing the complaint, pursuant to EEOC Regulation 29 C.F.R. § 1614.107 (a)(1), on the grounds that Complainant failed to state a claim. Specifically, the Agency determined that Complainant was not an aggrieved employee because he failed to articulate a present personal employment harm. The instant appeal followed. ANALYSIS AND FINDINGS The Agency shall accept an EEO complaint from any 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 or in reprisal for EEO-protected activity. 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. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss a complaint that fails to state a claim. In this case, the Agency correctly concluded that the formal complaint failed to state a claim because Complainant has not alleged an actual employment harm, as discussed hereafter. Regarding Claim 1 concerning Executive Order 14043, Complainant contends that he was discriminated against when all federal employees were mandated to be vaccinated against COVID-19. However, Complainant has not alleged that he was actually ever required to be vaccinated or was subjected to any disciplinary or other adverse employment action because he 3 2022002597 chose not to be vaccinated.2 See 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 (“EEOC COVID-19 Guidance”). In Claim 2, Complainant stated that the All-Hands email, including a Request for COVID-19 Vaccine Exemption for Religious Reason/Religious Accommodation, infringed on his religious freedom. Complainant, however, has not made an allegation that the Agency has denied him religious accommodation. To the contrary, the Agency-wide email, on its face, encouraged any employee who refused COVID-19 vaccination to exercise their option to request an exemption for religious reasons. Furthermore, it is appropriate for an employer to inquire about any employee’s reason for declining to receive a COVID-19 vaccination. See 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 L.1. (“Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances.”) Similarly Claim 3, describing possible negative impacts of requesting a religious accommodation, amounts to a generalized grievance which is simply too speculative to render Complainant presently aggrieved under EEO statutes. To the extent that Complainant felt pressured to request a religious accommodation, again he has not alleged that he was required to be vaccinated or was discipled as a result of asserting that his religious beliefs conflict with the Agency’s COVID-19 vaccination policy. Ryan L. v. Dep’t of Def., EEOC Appeal No. 2021004679 (July 25, 2022). CONCLUSION Accordingly, we find the Agency properly dismissed the instant formal complaint for failure to state a claim in accordance with 29 C.F.R. § 1614.107(a)(1). Therefore, the Agency's final decision is AFFIRMED. 2 We note a federal court has issued a temporary nationwide injunction stopping the implementation of Executive Order 14043, mandating COVID-19 vaccination of federal employees. 4 2022002597 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit his 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 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. 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). 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. 29 C.F.R. § 1614.604(c). 5 2022002597 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 September 29, 2022 Date