1 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dotty C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022003070 Agency No. 200P-0736-2022-14315 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 22, 2022, 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. BACKGROUND During the period at issue, Complainant worked as an Insurance Verification Technician, GS- 0503-06, at the Agency’s West Civilian Personnel Advisory Center in Las Vegas, Nevada. On January 27, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on religion (Christian) when: 1. She was subjected to a discriminatory hostile work environment characterized by the following incidents: a. Since August 2021, it threatened to put her on leave or terminate her for non-compliance with COVID-19 mandates. b. The training Talent Management System (TMS) COVID-19 Vaccination 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 2022003070 Information and Attestation for Curriculum online DVA-150 form only had the options of - I am fully vaccinated, I am not yet fully vaccinated, I have not been vaccinated, and I decline to respond, with no option for being “fully immunized,” meaning “immunized by God.” On August 27, 2021, Human Resources sent her the VA Secretary’s frequently asked questions article that essentially instructed that those who do not select the fully vaccinated option must get tested for COVID-19 weekly if working in a VA facility, wear a mask indoors, physically distance, and limit travel to mission critical operations. c. An Insurance Verification Supervisor (“Supervisor”) is Complainant’s first line supervisor. By telephone on September 1, 2021, Supervisor’s manager asked Complainant why she just did not enter her non-vaccinated status via the Agency’s LEAF portal, as the manager was doing. d. By email on September 10, 2021, Supervisor directed her to complete the TMS online DVA-150 form by close of business. However, this document had no “fully immunized” option, meaning “immunized by God.” e. By email on October 26, 2021, Supervisor instructed her to provide vaccination proof or request an exemption via VA Form 10230 in LEAF, which has requirements against her religious beliefs. f. By emails on October 27, 2021 and December 7, 2021, she was advised by Supervisor that she was required to come to the office weekly despite her telework accommodation request. g. On December 14, 2021, Supervisor again emailed her about filling out LEAF, and reminded her to come to the office on the required day. 2. Since submissions on August 30 and 31, 2021, September 10, 2021, and October 26, 2021, Complainant’s requests for religious exemption and accommodation related to COVID-19 vaccination, masking, and testing mandates, were delayed without response. 3. Supervisor issued her a written counseling for failure to comply with VA Notice 22-01 dated December 9, 2021. 2 In her formal complaint, Complainant wrote that getting a COVID-19 vaccination, and/or wearing a mask and/or taking a COVID-19 test were all against her sincerely held religious beliefs. 2 On appeal, Complainant raises the basis of reprisal on issue 3, in addition to her claim of discrimination based on her religion. 3 2022003070 In its final decision, the Agency determined that Complainant’s complaint failed to state a claim. Specifically, the Agency found issue 1 did not rise to the level of actionable harassment. On issue 2, the Agency found Complainant was not aggrieved because a Federal Court enjoined it from enforcing Executive Order 14043, which had mandated COVID-19 vaccination for all federal employees. As a result, Complainant’s COVID-19-related exemption requests were indefinitely placed on hold. On issue 3, the Agency found Complainant was not aggrieved because she was merely ordered to comply, given options for compliance, and has not been disciplined. The instant appeal followed. On appeal, Complainant contends that, upon request, the Agency should have exempted her from all COVID-19 policies based on sincerely held religious beliefs. She maintains that the Agency’s ongoing requests that she identify her COVID-19 vaccination status via LEAF or TMS, without the option to choose “fully immunized”, meaning “immunized by God” was anti-religious harassment. Complainant states she refuses to comply with masking requirements because her religion forbids this as a form of “deception” and she believes it is unsafe, and refuses comply with invasive testing requirements based on her religious belief that this would defile her body. She contends that the December 9, 2021 Written Counseling warns of progressive discipline. ANALYSIS AND FINDINGS By regulation, the Agency shall accept an EEO complaint from any aggrieved employee or applicant for employment who believes that she has been discriminated against by the Agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, 1614.106(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. ir 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). Issues 1.d., and 1.g. concern Complainant being instructed on October 26, 2021 and December 9, 2021, respectively, to submit vaccination proof without the option to indicate “fully immunized”, meaning “immunized by God”. They also concern the requirement that the requestor for an exemption from the vaccination mandate acknowledge unvaccinated employees must get weekly COVID-19 tests when in the office and wear a mask indoors, which were against her religious beliefs. Issue 3 concerns Complainant being issued a written counseling on December 9, 2021, for failure to comply with VA Notice 22-01, which refers to being required to submit vaccination proof or request an exemption from the vaccination requirement. However, in her June 12, 2022 appeal brief, Complainant writes that since March 9, 2020, she has worked full-time from home, and wants this to continue as an accommodation. There is no indication in the record, including Complainant’s appeal statement, that she was ever ultimately required to take the COVID-19 vaccine or test, wear a mask, or come into the office with a mask or testing because of a denial of a reasonable accommodation request, or was disciplined or 4 2022003070 received any other adverse action for not doing these things. Consequently, Complainant has not alleged a present harm related to employment for which there is a remedy regarding her remaining allegations. Valery G. v. Defense, EEOC Appeal No. 2022002547 (Aug. 16, 2022) (rule applied in vaccination context). The same is true to issue 3, the written counseling. Complainant was again merely directed to comply with the reporting requirements and again provided various options (which included requesting an exemption from the vaccination requirement) and she has not alleged it resulted in any subsequent disciplinary or other adverse action. CONCLUSION For the reasons stated above, the Agency’s dismissal decision 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit 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. 29 C.F.R. § 1614.604. 5 2022003070 The Agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 29 C.F.R. § 1614.403(g). Either party’s request or statement or brief in opposition must also include proof of service on the other party, unless Complainant files 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. 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 2, 2023 Date
