[Redacted], Bret E., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022002016 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bret E.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Request No. 2022004846 Appeal No. 2022002016 Agency No. ARBELVOIR22NOV00320 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Bret E. v. Dep’t of the Army, EEOC Appeal No. 2022002016 (Aug. 25, 2022). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). On February 8, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of religion and disability when: a. On and after October 18, 2021, he received e-mail communications informing him Department of Defense (DoD) employees who refuse to be vaccinated [against Covid-19] or who do not have an exemption may be subject to disciplinary action. 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. 2022004846 2 b. Since on or about October 29, 2021, US Army Combat Capabilities Development Command, Command Control Computer Communication Cyber Intelligence Surveillance and Reconnaissance (C5ISR) Center has not provided details of the “program” compliance with “applicable laws as required by Executive Order 14043 [requiring Covid-19 vaccination for federal employees], as he has requested. c. On or about October 29, 2021, and additional dates he received e-mail communication from C5ISR Center leaders noting they were awaiting guidance on the processing of any exception requests to the vaccination requirements. d. On and after November 2, 2021, he received e-mails informing all C5ISR Center civilian employees of the requirement to attest to their COVID-19 vaccination status and/or request an exception to the COVID-19 vaccination mandate. e. On or about November 18, 2021, he received a memorandum titled Employee Notification, Mandatory COVID-19 Vaccination for Federal Employees requesting his signature. f. On or about January 5, 2022, he received an e-mail requesting that he sign the Employee Order, Mandatory Coronavirus19 (COVID-19) Testing memorandum. The Agency dismissed the complaint for failure to state a claim, pursuant to 29 C.F.R. §1614.107(a)(1). Complainant appealed, and the Commission’s prior decision affirmed the Agency’s decision. In his request, Complainant, reiterating arguments he previously made, provides no evidence to warrant granting of his request. The complaint clearly involved the Agency’s mere communication, via emails and/or memorandum, to all its employees, including Complainant, regarding its COVID-19 vaccination/testing policy. Despite Complainant’s contentions, the alleged claims did not involve a disclosure of his purported disability or his religion in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. or Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. See EEOC’s What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Updated July 12, 2022), at K. We note that agencies’ requesting documentation or other confirmation of COVID-19 vaccination is not a disability- related inquiry. Id., at K.9. The Commission emphasizes that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. 2022004846 3 After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2022002016 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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 26, 2023 Date