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

Equal Employment Opportunity Commission

Mar 13, 2023

Appeal No. 2023000767 (E.E.O.C. Mar. 13, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Iliana S.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2023000767 Agency No. 22-00421-00357 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 24, 2022, dismissing a formal complaint alleging unlawful employment discrimination in violation of 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 for the Agency as a Legacy Lead Systems Engineer, DP-0801-05, at the Naval Air Warfare Center Aircraft Division in Patuxent River, Maryland. On March 3, 2022, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on her disability2 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 The record shows that, due to a medical condition, the Agency granted Complainant an exemption from being immunized against COVID-19 as a reasonable accommodation. 2023000767 2 1. On January 10, 2022, Complainant was informed that policy required unvaccinated personnel such as herself to submit to weekly COVID testing prior to entrance into her workplace. 2. On February 17, 2022, after Complainant tested positive for COVID, her supervisor informed her that she was not permitted on base until she had a negative COVID test result, which she believed was contrary to the Centers for Disease Control (CDC) guidelines. 3. On March 2, 2022, Complainant was informed by management that she was not allowed to attend an event (“ENARG for PMA-281”) because she was unvaccinated while vaccinated members of her team were allowed to attend. After an investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant did not respond. Thereafter, on October 24, 2022, the Agency issued a final decision, pursuant to 29 C.F.R. § 1614.110(b). The Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). The instant appeal followed. Complainant did not submit any statements on appeal. ANALYSIS AND FINDINGS By regulation, an agency shall accept an EEO 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). 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 (Apr. 21, 1994). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. Although Complainant raised disability as her basis for her allegations of discrimination, a fair reading of Complainant’s formal complaint indicates that she is alleging disparate treatment based on her vaccination status, not disability. Complainant alleged in her formal complaint that the Agency’s testing was enacted and “required only unvaccinated personnel to be tested every week.” She argued that, “[u]nvaccinated should not be singled out to be tested. If testing needs to be done, everyone should have to do it. Whether vaccinated or unvaccinated, you can get COVID and you can spread COVID.” For the same reason, Complainant challenged management’s decision on March 2, 2022, that she could not attend a work event because she was not vaccinated, while coworkers who were vaccinated were allowed to attend. 2023000767 3 Here, we conclude Complainant is alleging discrimination based on vaccination status rather than a disability, not a basis protected by the statutes enforced by the EEOC.3 See 29 C.F.R. § 1614.103(a). 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, Question A.6 (if job-related and consistent with business necessity, employers can require mandatory COVID-19 viral testing to evaluate an employee’s continued presence in the workplace). In reaching this conclusion, we note that Complainant does not allege that her ability to submit to testing for COVID was impacted by her disability. CONCLUSION The Agency’s final decision dismissing the formal complaint for failure to state a claim 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 3 We also note, in her affidavit of record, Complainant expressly stated that she believed the testing policy was uniformly applied to all unvaccinated employees and she was not specifically singled out. 2023000767 4 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. 2023000767 5 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 March 13, 2023 Date