[Redacted], Ty S., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Mar 2, 2023

Appeal No. 2023000878 (E.E.O.C. Mar. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ty S.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2023000878 Agency No. DOS-0397-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 2, 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 relevant time, Complainant worked as a Physical Scientist, GS-15, at the Agency’s Bureau of Consular Affairs in Washington, D.C. On September 28, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on disability (perceived disability) when: 1. He was required to submit to periodic testing between April 22, 2022, and August 17, 2022, for COVID-19 due to his unvaccinated status; and 2. He was referred for disciplinary action for refusal to consent to testing for COVID-19 on July 21, 2022. 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. 2023000878 2 On November 2, 2022, the Agency issued a final decision dismissing the formal complaint in its entirety in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS In accordance with EEOC Regulations 29 C.F.R. §§ 1614.103 and 1614.106(a), the Agency shall accept an EEO complaint from any aggrieved employee who believes that he has been discriminated against by the Agency because of race, color, religion, sex, national origin, age, disabling condition or subjected to reprisal for EEO-protected activity. This 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 under EEO laws. Under 29 C.F.R. § 1614.107(a)(1), the Agency shall dismiss a complaint if it fails to state an EEO claim. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Upon review, the Commission determines that the Agency properly dismissed Complainant's complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Complainant has asserted claims which simply fail to meet the standard of “presently aggrieved” regarding employment, for which there is a remedy under our statutes. In claim 1, Complainant challenges the Agency’s policy requiring regular COVID-19 testing for unvaccinated personnel. However, it is clear from his allegations that Complainant is alleging discrimination based on his 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). In claim 2, Complainant alleges that he was “referred” for discipline on July 21, 2022, for his refusal to submit to COVID-19 testing. The record, however, does not indicate that Complainant was actually disciplined or suffered any other adverse consequence as a result of his refusal to submit to COVID-19 testing. We find, therefore, that Complainant has failed to alleged he was “aggrieved” with respect to claim 2. Upon review, the Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant failed to adequately allege that he suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994). 2023000878 3 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 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. 2023000878 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 March 2, 2023 Date