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

Equal Employment Opportunity Commission

Feb 6, 2023

Appeal No. 2022003450 (E.E.O.C. Feb. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herman F.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2022003450 Agency No. 2022-29456-FAA-01 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a May 11, 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 an Aviation Safety Inspector at the Agency’s facility in Oklahoma City, Oklahoma. On March 29, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment based on religion (Christian) and perceived disability (unvaccinated status) when: 1. On January 27, 2022, he learned management implemented policies and procedures that required all employees who request an exemption from the mandate to be vaccinated against COVID-19 as a religious accommodation to disclose their religious belief in the Employee Accommodation Files system. 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. 2022003450 2 2. On or about January 31, 2022, management implemented the Safer Federal Workforce Task Force’s guidance that required unvaccinated employees to participate in mandatory weekly COVID-19 testing. 3. On or about January 31, 2022, management implemented policies and procedures for mandatory physical distancing and masking requirements for unvaccinated employees. 4. The Agency sent repeated directives and correspondence notifying him that not disclosing if he is vaccinated against COVID-19 without requesting an exemption as a reasonable accommodation via the Employee Accommodation Files system, and not submitting to weekly COVID-19 testing, wearing a mask, and social distancing if unvaccinated would result in disciplinary action, up to and including removal.2 The Agency dismissed the complaint for failure to state a claim because Complainant did not allege that the policies and guidance were applied only to him, as opposed to all Agency employees. It found that in the absence of a specific harm, a complainant cannot pursue a generalized grievance that members of one protected group are afforded benefits not offered to other protected groups. Concerning issue 4, the Agency found that the actions complained of were insufficiently severe or pervasive to alter the terms and conditions of Complainant’s employment. 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" 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 (Apr. 21, 1994). An agency shall dismiss a complaint that fails to state a claim. 29 C.F.R. § 1614.107(a)(1). Issue 1 There is no indication in the record, including Complainant’s appeal statement, that he was ever ultimately required to receive the COVID-19 vaccine, received the COVID-19 vaccine because of a denial of an accommodation request, or was disciplined or received any other adverse action for failing to be immunized. Consequently, regarding vaccination Complainant has not alleged a present harm related to employment for which there is a remedy. Valery G. v. Defense, EEOC Appeal No. 2022002547 (Aug. 16, 2022) (rule applied in vaccination context). 2 The Agency did not define issue 4, but Complainant alleged it in his complaint and on appeal, and the matter is addressed in the FAD. 2022003450 3 Complainant alleged that to get an exemption from the vaccination mandate as a religious accommodation, the employee must disclose their religious beliefs in the Agency’s Employee Accommodation Files system in violation of the Privacy Act of 1974. However, 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. Hongell v. USPS, EEOC Appeal No. 01A61124 (May 2, 2006) citing Bucci v. Education, EEOC Request Nos. 05890289, 05890290, 05890291 (Apr. 12, 1989). A claim of a violation of the Privacy Act cannot be adjudicated in the administrative EEO complaint process. Issues 2 and 3 Complainant does not allege being tested for COVID-19, wearing a mask and physical distancing conflicts with his religious belief. In his EEO complaint, he contended that per the Centers for Disease Control and Prevention (CDC), vaccinated people carry the same viral load as unvaccinated people, but only unvaccinated employees are required to be tested for COVID- 19, and at work wear a mask and physically distance. We find that a fair reading of the complaint is that it is based on vaccination status concerning testing, wearing a mask, and physical distancing, rather than based on religion and perceived 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). See, e.g., Reese W. v. Veterans Affairs, EEOC Appeal No. 2022002734 (Jul. 25, 2022) (where the agency granted the complainant’s reasonable accommodation request exempting him because of his religious belief from the vaccination requirement, but required weekly testing in lieu of getting vaccinated, the complainant was not aggrieved).3 Issue 4 Complainant contends that being subjected to notices and communications warning that failure to comply with various aspects of the Agency’s COVID-19 safety program will result in disciplinary action, up to and including removal, created a hostile work environment. These communications, without more, do not rise to the level of actionable harassment. Complainant alleged that these communications created sleeplessness, anxiety, stress, humiliation, and exhaustion. Allegations that fail to state a claim cannot be converted into a viable claim merely because the complainant asserts damages as a remedy. Ulanoff v. USPS, EEOC Request No. 05950396 (Jan. 26, 1996). 3 On appeal, Complainant argues that the testing requirement violates the U.S. Constitution, the Federal Food, Drug, and Cosmetic Act, and the Nuremberg Code. The EEO complaint process does not have jurisdiction over these matters. 2022003450 4 CONCLUSION Accordingly, the FAD dismissing the 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 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. 2022003450 5 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. 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 6, 2023 Date