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

Equal Employment Opportunity Commission

Feb 2, 2023

Appeal No. 2022003132 (E.E.O.C. Feb. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dudley H.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022003132 Agency No. ARCEERDC22MAR01479 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an April 18, 2022 final Agency decision (FAD) dismissing his complaint alleging 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., and 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 as a Research Physical Scientist, DB-04, at the Agency’s U.S. Army Corps of Engineers, Engineer Research and Development Center in Vicksburg, Mississippi. On April 4, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on religion (non-denominational) and disability (perceived disability) when on or about February 2, 2022, his Branch Chief denied his travel request per FRAGORD 9, FRAGORD 11, and FRAGORD 13 to OPORD 2021-38 (USACE COVID Steady State Operations).2 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 The record reflects that FRAGORD 11 (and its predecessor FRAGORD’s 6 through 10) restricts the official travel of employees that have not been vaccinated against COVID-19. 2022003132 2 The Agency dismissed the complaint for failure to state a claim because Complainant did not allege a harm by being denied his travel request. The instant appeal followed. On appeal, Complainant makes no comment. In reply, the Agency argues that the FAD was correctly decided. ANALYSIS AND FINDINGS An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she 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, .106(a). 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. Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). An Agency shall dismiss a complaint that fails to state a claim. 29 C.F.R. § 1614.107(a)(1). In his formal complaint, Complainant alleged that he was denied travel orders “on the basis of my vaccination status” and that this constituted a form of retaliation against unvaccinated individuals. He alleged this discriminates against his sincerely held religious beliefs because he is unvaccinated for this reason and the perception that being unvaccinated is a disability that makes it more likely he will get or spread COVID-19. Complainant indicated that he applied for an exemption from the COVID-19 vaccination mandate, and his request was pending. There is no indication in the record, including Complainant’s appeal statement, that he was ever required to receive the COVID-19 vaccine or received the COVID-19 vaccine because of a denial of an accommodation request. We find that a fair reading of Complainant’s complaint is that he is alleging discrimination based on vaccination status rather than religion and disability. Tommie O. v. Army, EEOC Appeal No. 2022002436 (Aug. 29, 2022). Complainant’s vaccination status is not a protected basis under any of the statutes enforced by the EEOC. 29 C.F.R. § 1614.103(a). Moreover, we find that Complainant has not alleged that he suffered any present harm or loss with respect to a term, condition, or employment because of the denial of his travel request. CONCLUSION Accordingly, the Agency’s final decision dismissing Complainant’s 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. 2022003132 3 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). 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. 2022003132 4 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 February 2, 2023 Date