[Redacted], Elliott D., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Sep 29, 2022

Appeal No. 2022003813 (E.E.O.C. Sep. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elliott D.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2022003813 Agency No. 202229459FAA05 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's June 6, 2022 dismissal of his 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., and Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a General Engineer GS-0801-14, for the Agency’s Flight Standards Training Division in Herndon, Virginia. On April 16, 2022, Complainant filed a formal EEO complaint alleging that the Agency subjected him to a hostile work environment and discrimination on the bases of religion (Christian) and disability (regarded as having a disability). The Agency framed the claims as follows: 1. Beginning in September 2021, management2 implemented policies and procedures in accordance with the President’s Executive Order [EO 14043 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. 2022003813 2 (Sept. 9, 2021)] requiring all employees to submit their COVID-19 vaccinations status in DOT/FAA’s attestation database by November 8, 2021 and sent agency-wide notices that failing to obtain the vaccine without seeking an accommodation would result in disciplinary action. 2. On or about January 3, 2022, pursuant to the President’s Executive Order, management implemented a revised process that required employees requesting religious accommodation to the COVID-19 vaccination to submit personal information in the attestation database by February 2, 2022. 3. On February 3, 2022, Complainant became aware through published notice in the Federal Register that DOT had created a new system of records titled Employee Accommodation Files that would allow DOT to collect, maintain, and disseminate information needed to resolve reasonable accommodation requests based on disability or a sincerely held religious belief. The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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). The 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 (April 21, 1994). If the complainant cannot establish that he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). In the instant case, Complainant contends that he was discriminated against when the Agency required all employees to submit their vaccination status and that failing to obtain the vaccine, without seeking an accommodation, would result in discipline. In support, Complainant provides numerous Agency-wide emails reminding its employees to either get vaccinated or obtain a medical or religious accommodation exemption and, later, to disclose vaccination status. 2 Complainant identifies a number of senior-level DOT and FAA administrators outside his immediate chain of command as the responsible management officials (“RMOs”) for this complaint, reasoning that these individuals have the authority to implement and enforce Agency policy regarding COVID-19 vaccination status. 2022003813 3 However, Complainant has not alleged that he was required to be vaccinated or was subjected to any disciplinary or other adverse employment action because he chose not to be vaccinated.3 The Commission has previously found that allegations of feeling “pressured” to get vaccinated, and an agency’s “encouragement of vaccination by its employees” did not state a claim because the complainant has not alleged that they were actually required to be vaccinated or was subjected to any disciplinary or other adverse employment action because he chose not to be vaccinated. See Ryan L. v. Dep’t of Def., EEOC Appeal No. 2021004679 (July 26, 2022); See also 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”). Similarly, we find that Complainant’s allegation that the Agency’s requirement that he disclose his vaccination status “diminished [his] competitiveness for opportunities and promotion” is, as in Colby S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2022000976 (Apr. 18, 2022), a harm that is “speculative at best.” EEOC precedent has long required that an aggrieved individual must suffer present harm in order to state a viable claim of discrimination.” Id. citing Diaz (emphasis added). Further, Complainant’s assertions that he was forced to provide the Agency with personal medical information and information about his sincerely held religious beliefs or risk termination, and that the information is retained in an Agency database, also fail to establish that he is “aggrieved.” See EEOC COVID-19 Guidance, Parts K (Vaccinations - Overview, ADA, Title VII, and GINA) and L (Title VII Religious Objections to COVID-19 Vaccine Requirements). We note that vaccination status is not a protected basis under the statutes enforced by the EEOC even when couched in terms of “regarded as” having a disability. See Casie S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2022002450 (Jul. 25, 2022). For instance, in Casie S., the complainant failed to state a claim when she argued that she was discriminated against due to the “perception of having [a] COVID infection and perception of being contagious… [because the complainant’s] religious beliefs prevented her from receiving the COVID vaccine.” There, the Commission determined that the complainant was alleging discrimination on the basis of vaccination status not the complainant’s proffered bases of religion and/or disability. Here, Complainant’s assertion in the instant complaint, that “[t]hrough the issuance of DOT/FAA’s requirements, it is presumed that an unvaccinated individual at some point has or will contract COVID-19” asserts discrimination based on vaccination status, not “regarded as” having a disability. 3 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. 2022003813 4 On appeal, Complainant emphatically argues that the Agency’s policy requiring disclosure of vaccination status violates his constitutional rights. The Commission has no jurisdiction to make determinations regarding the constitutionality of an Agency's regulations. See Barela v. Dep’t of State, EEOC Request No. 06890194 (March 9, 1989). Moreover, to the extent that Complainant construes his complaint as alleging a specific violation of the Privacy Act, the Commission notes that the Privacy Act provides an exclusive statutory framework governing the disclosure of identifiable information contained in federal systems of records and jurisdiction rests exclusively in the United States District Courts. See Hongell v. United States Postal Serv., EEOC Appeal No. 01A61124 (May 2, 2006) citing Bucci v. Dep’t of Ed., EEOC Request Nos. 05890289, 05890290, 05890291 (April 12,1989). In sum, we conclude Complainant has failed to state a viable claim of discrimination or harassment that can be adjudicated within the 29 C.F.R. Part 1614 EEO complaint process because he does not allege that he has suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. 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. 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 2022003813 5 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. 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. 2022003813 6 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