U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nobuko M.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency. Appeal No. 2023000865 Agency No. APHIS-CF-2022-00454 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated September 30, 2022, dismissing a formal 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as an Animal Care Inspector at the Agency’s Animal and Plant Health Inspection Service in Fort Collins, Colorado. On August 7, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of religion (unspecified in the record) and disability (“perceived to have a communicable disease”) when: 1. On August 8, 2022, management denied her request for reconsideration of 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. 2023000865 2 the initial denial of her religious exemption from the Agency’s Coronavirus Disease 19 (COVID-19) screening testing program. 2. In July and August 2022, she was not permitted to travel to high COVID- 19 level locations due to her vaccination status. 3. On July 19, 2022, her request for a religious exemption from the COVID- 19 screening testing program was denied. 4. On June 4, 2022, her former manager was sent the notification of her enrollment in the COVID-19 screening testing program, rather than her current supervisor. 5. On or about June 4, 2022, she was notified that she had been enrolled in the Agency’s COVID-19 screening testing program. 6. Since about October 21, 2021, management has not responded to her request for a religious exemption from the COVID-19 vaccine mandate. 7. Since September 2021, she has received vague responses from management to her questions regarding the religious accommodation process for exemption from the federal employee COVID-19 vaccine mandate. In its September 30, 2022 decision, the Agency dismissed the formal complaint for failure to state a claim. The Agency reasoned that while Complainant asserts that her vaccination status (unvaccinated against COVID-19) is a perceived physical disability, the Commission has ruled that vaccinated status is not a protected basis. As for the alleged events comprising her complaint, the Agency determined that they did not render Complainant an “aggrieved” employee as no term, condition or privilege of her employment was affected. Similarly, the Agency found that the incidents were not sufficiently severe or pervasive to state an actionable claim of harassment. Finally, regarding the screening program, the Agency noted that the program was paused in August 2022 and was now moot. Complainant filed the instant appeal. Complainant did not submit a brief or contentions on appeal. In response, the Agency reiterated the reasoning in its final decision. 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). 2023000865 3 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 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. The Commission finds that the Agency properly dismissed Complainant's complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). In this case, Complainant has asserted claims which simply fail to meet the standard of “presently aggrieved” with respect to employment for which there is a remedy under EEO statutes. In the instant case, Complainant contends she was denied exemption from the Agency’s COVID- 19 Testing Screening Program for unvaccinated personnel. With regard to her perceived disability claim, we find that Complainant is alleging discrimination based on her vaccination status rather than a disability that is perceived or otherwise. This is not a valid basis that is protected by the statutes enforced by the EEOC. See 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) at 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). With regard to her claim of religious discrimination, we first note that, as of August 22, 2022, one month after her request for a religious exemption from testing was denied, the record shows that the Agency no longer required testing of its employees, including Complainant, or other protocols that distinguished between vaccinated and unvaccinated employees. After careful examination of her complaint, related EEO counseling report and the lack of a submission on appeal, we conclude Complainant has failed to allege how she was harmed by the testing requirement. Complainant did not explain the purported conflict between her religion and testing or proffer any alternative screening method that would eliminate the asserted conflict between her religion and the Agency's need to ensure its workplace was free of COVID. Further, Complainant alleges that she was not permitted to travel to locations with reported high or medium levels of COVID-19 due to her unvaccinated status. Again, Complainant has not articulated a harm that can be remedied under the EEO laws. The Commission has consistently held that one's vaccination status is not a characteristic that is protected under the statutes enforced by the EEOC. Ryan L. v. Dep't of Def., EEOC Appeal No. 2022002450 (July 25, 2022); Valery G. v. Dep't of Def., EEOC Appeal No. 2022002547 (Aug. 16, 2022). Moreover, she has not alleged any specific employment-related harm resulted from these travel restrictions. 2023000865 4 To the extent Complainant is alleging discrimination on the basis of religion regarding immunization requirements, nothing in the record indicates that Complainant was ever required to be immunized or subjected to disciplinary or any other adverse action as a result of declining to be immunized.2 Therefore, we find that Complainant fails to allege that she suffered an employment loss based on her religious beliefs. Casie S. v. Dep't of Veterans Affairs, EEOC Appeal No. 2022002450 (July 25, 2022). CONCLUSION Accordingly, the Agency’s final decision dismissing the formal complaint was proper and 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 2 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. 2023000865 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. 2023000865 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 March 13, 2023 Date
