[Redacted], Ernest G., 1 Complainant,v.William J. Burns, Director, Central Intelligence Agency, Agency.

Equal Employment Opportunity Commission

Oct 26, 2022

Appeal No. 2022003080 (E.E.O.C. Oct. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ernest G.,1 Complainant, v. William J. Burns, Director, Central Intelligence Agency, Agency. Appeal No. 2022003080 Agency No. 22-17 DECISION On May 9, 2022, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an April 12, 2022 final Agency decision (FAD) dismissing his complaint of 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 period at issue Complainant was employed by the Agency as a Chief, GS-15. On February 2, 2022, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected him to discrimination and/or harassment and denied him reasonable accommodation based on disability (the Agency presumes he has or may get Covid- 19, a communicable disease, because he has not disclosed his vaccination status) when: 1.g.: on October 26, 2021, the Human Resources Chief denied his October 21, 2021 reasonable accommodation request to go on extended leave.2 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 Complainant alleged other claims. The Agency determined they were identical to claims in a class complaint, filed by another person, that is before an EEOC Administrative Judge (AJ) for a determination on whether to certify the class complaint. The Agency number of the class complaint is 22-35, and the EEOC hearing number is 570-2022-00591X. Citing EEOC Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 2022003080 2 In his EEO complaint Complainant wrote that he made the extended leave request to delay and possibly avoid being fired because the deadline to get vaccinated was November 5, 2021, and wished to use all his accrued sick leave, annual leave, award leave, compensatory time, and if possible five months of home leave. The Human Resources Chief denied Complainant’s extended leave request based on policy that an employee may not leverage discretionary extended leaves of absence as a means to avoid the vaccination requirement for COVID-19 and application of progressive disciplinary measures associated with non-compliance. Complainant separately has written that he did not make and does not intend to make a medical waiver request. The Agency dismissed allegation 1.g. for failure to state a claim in part because this issue actually concerned discrimination based on Complainant’s vaccination status, which is not a protected group under 29 C.F.R. § 1614.103(a). The instant appeal followed. On appeal, concerning vaccination status, Complainant argues that claim 1.g. is based on the Agency wrongly presuming he has a disability because he declines to disclose his vaccination status, not discrimination based on vaccination status. In reply, concerning vaccination status, the Agency argues that elsewhere in his appeal brief Complainant explicitly argues that claim 1.g. occurred “because of my vaccination status” (emphasis in Agency reply). 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, disability, genetic information, sex based wage discrimination or retaliation for EEO activity. 29 C.F.R. § 1614.103(a). EEOC Regulation 29 C.F.R. § 1614.107(a)(1) requires that an agency shall dismiss a complaint that fails to state a claim § 1614.103. Contrary to Complainant’s argument, we find that a fair reading of issue 1.g. in his EEO complaint is that it is based on his vaccination status. He alleged that he requested extended leave on October 21, 2021, because the vaccination deadline was November 5, 2021. In explaining why she denied the leave request to the EEO counselor, the Chief of Human Resources referred to the Agency policy that an employee may not leverage discretionary extended leaves of absence as a means to avoid the vaccination requirement for COVID-19 and application of progressive disciplinary measures associated with non-compliance. Vaccination status is not a protected basis under statutes enforced by the EEOC. 29 C.F.R. § 1614.103(a). Chap. 8 § III, pp. 8-3 & 8-4 (REV. Aug. 5, 2015) as authority, the Agency placed Complainant’s other claims in abeyance until a decision is made on class certification by the Commission. Complainant does not appeal his other claims being held in abeyance. 2022003080 3 Accordingly, for the above reason, 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, pp. 8-3 & 8-4 (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). 2022003080 4 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 October 26, 2022 Date