[Redacted], Mindy O., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Dec 14, 2022

Appeal No. 2022003536 (E.E.O.C. Dec. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mindy O.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022003536 Agency No. 200I6212022145487 DECISION Complainant timely filed an appeal to the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the June 7, 2022 final Agency decision (FAD) dismissing her 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 Nurse Practitioner, VN-3, at the VA Medical Center in Mountain Home, Tennessee. In response to the COVID-19 pandemic, the Agency instituted a policy that required all health care personnel to receive the COVID-19 vaccine.2 This policy apparently provided for exceptions based upon medical, religious, or pregnancy reasons. 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 According to the Agency, this was a distinct requirement from Executive Order 14043 based on its “[own] statutory authorities and is not subject to any court-imposed injunctions.” 2022003536 2 On May 23, 2022, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected her to discrimination based on religion (Christian) when: 1. On April 15, 2022, management denied her request for an exemption from the COVID-19 as a religious accommodation. 2. Complainant has “a real belief these mandates for these vaccines are against everyone's freedoms and personal choice and should not be done, especially since they are in the experimental stage and is really against the Nuremberg Code, which in my belief is illegal.” 3. On May 19, 2022, she was informed that Management would not offer mediation to resolve the instant complaint. The Agency dismissed Complainant’s complaint, pursuant to § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. Complainant submitted no argument on 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” 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 (April 21, 1994). An agency shall dismiss a complaint that fails to state a claim. 29 C.F.R. §1614.107(a)(1). Claim 1 In her complaint, Complainant alleged the Agency denied her request for an exemption to its COVID-19 vaccination mandate based on her religious beliefs. In reply to Complainant’s appeal, the Agency asserts, and Complainant does not deny, that she has not been disciplined for remaining unvaccinated, and has been allowed to remain in her Hospitalist Nurse Practitioner position caring for patients admitted into the hospital. Because there is no indication in the record that Complainant was ever ultimately required to receive the COVID-19 vaccine, received the COVID-19 vaccine because of the denial of accommodation request, or was reassigned, disciplined or received any other adverse action for failing to be immunized, she has not alleged a present harm regarding a term, condition, or privilege or her employment that would sufficiently render her “aggrieved” to state a claim under Title VII. 2022003536 3 We find that Complainant has failed to allege a cognizable harm by the mere existence of the vaccination mandate, which is currently not being enforced against her.3 Claim 2 This issue fails to state a claim because the Commission has no jurisdiction over the Nuremburg Code. It only has jurisdiction over specified United States EEO statutes set forth in 29 C.F.R. § 1614.103(a). Claim 3 Agencies have discretion to determine on a case-by-case basis whether a given dispute is appropriate for alternate dispute resolution (ADR). Bryant v. United States Postal Serv., EEOC Appeal No. 0120122761 (Sept. 21, 2010); EEOC Management Directive for 29 C.F.R. Part 1614., Ch. 3 § II.a.1 (REV. Aug. 5. 2015) (as fairness is a “core principle” of ADR, any ADR proceeding, must entered into “knowingly and voluntarily” by all parties) citing the Administrative Dispute Resolution Act of 1996 (“ADRA”) codified as 5 U.S.C. §574. Thus, allegations that an agency failed to offer ADR to resolve a complaint during the EEO counseling period fail to state a claim. Wes L. v. Veterans Affairs, EEOC Appeal No. 0120160853 (May 26, 2016); Bryant. Claim 1 fails to state a viable claim because the Agency acted within its discretion when it opted not to offer Complainant an opportunity to engage in ADR/mediation to resolve this complaint. CONCLUSION The Agency’s dismissal decision in this matter 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. 3 If the Agency renews enforcement of the vaccination requirement against her, Complainant is free to renew her request for religious accommodation, and the Agency must then consider it in accordance with Title VII requirements. 2022003536 4 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. 2022003536 5 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 December 14, 2022 Date