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

Equal Employment Opportunity Commission

Feb 6, 2023

Appeal No. 2022003190 (E.E.O.C. Feb. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marlon H.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022003190 Agency No. 22-60530-00768 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a May 19, 2022 final Agency dismissing his complaint alleging employment discrimination. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst at the Agency’s facility in China Lake, California. On April 22, 2022, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected him to discrimination on the basis of vaccination status when: (1) From January 10, 2022 to present (ongoing as of the date of this letter), NAVAIR Command ‘s COVID-19 testing requirements placed him in an unsafe work environment since vaccinated individuals are not required to consistently test despite being just as susceptible to contracting COVID-19. 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. 2022003190 2 (2) On March 2, 2022, March 7, 2022, March 14, 2022, and March 23, 2022, NAVAIR Command required him to test for COVID-19 following his 90-day pause (due to contracting COVID-19). (3) On March 23, 2022, his direct supervisor notified him that he, “should not be at work,” when he was unable to provide results for his recent COVID-19 test, despite being unable to retrieve it when his supervisor was unavailable. The Agency dismissed the complaint for failure to state a claim because Complainant did not identify a protected basis which falls under the purview of the statutes enforced under the 29 C.F.R. Part 1614 EEO complaint process, but instead alleged “vaccination status” as a claimed basis for discrimination. Complainant filed the instant appeal. 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). In his formal complaint form, Complainant did not check off any fields related to protected EEO bases (for example, religion, disability, race, and so forth). In the narrative attached to his formal complaint, Complainant explained that, with respect to the Agency’s Covid-19 mandated testing requirement, “I believe that [my supervisor] was doing his job as required, however, per the commands safety guidelines, I am to do a COVID‐19 test weekly and provide the results to my supervisor before coming into work on Monday morning.” However, Complainant noted, “Per this, I am being discriminated against because I am unvaccinated”(emphasis added). On appeal, Complainant recounts that the Agency dismissed his complaint for lack of standing because he is not alleging a protected basis. He writes that his complaint does not align with “prong 2 legalities”, meaning alleging a protected EEO basis, but argues dismissing it was wrong because the Agency’s actions violate his right to safety in the workplace. He reiterates the position in his EEO complaint: “As I stated in my complaint, I have been discriminated against because I am unvaccinated. I am required to test weekly for COVID-19 in accordance to [sic.] government policies and authority, while the vaccinated are not required to do the same” (emphasis added). 2022003190 3 It is clear that Complainant is alleging discrimination based on vaccination status, which is not a basis protected by the statutes enforced by the EEOC. See 29 C.F.R. § 1614.103(a). Therefore, we find that the Agency’s dismissal of the complaint was proper. CONCLUSION The FAD 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. 2022003190 4 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. 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