COMMONWEALTH OF PENNSYLVANIA

GOVERNOR’S OFFICE

PENNSYLVANIA HUMAN RELATIONS COMMISSION

:
Zachary Rackovan, :
Complainant : Case No. 202102157
:
vs. : EEOC No. 17F202260828
:
The Pennsylvania State University, :
Respondent :

FINDING OF PROBABLE CAUSE

I. JURISDICTION

Complainant filed a complaint with the Commission on April 6, 2022. Complainant has met all
jurisdictional requirements under the Pennsylvania Human Relations Act.

II. SUMMARY OF ALLEGATIONS

Complainant, a Multi-Media Specialist 2, alleges that Respondent discriminated against him due
to his protected classes, religious creed (Christianity), and in retaliation of his protected activity
(requesting a religious accommodation) in violation of 43 P.S. §955 when it:

a) denied his request for a reasonable accommodation on or about October 27, 2021, through
February 18, 2022. Complainant specifically requested a reasonable accommodation of
being exempt from the COVID-19 vaccination mandate and the COVID-19 testing
requirement due to his sincerely held religious beliefs and because he works remotely.
Complainant states that he sincerely holds a religious belief that the Bible is the true and
living Word of God, the Bible teaches that our bodies belong to God, and are a temple of
the Holy Spirit, and as such, he is prohibited from subjecting his body to unwanted
intrusions, but rather to do everything in his ability to honor God with his body and his
lifestyle.

b) discharged him on or about March 18, 2022, due to his inability to abide by the mandatory
COVID-19 vaccine mandate and testing requirement due to his sincere religious beliefs,
though he was working remotely.

c) discharged him on or about March 18, 2022, in retaliation for requesting a reasonable
accommodation due to his sincerely held religious beliefs. Complainant alleges that
Respondent discharged him a month after he requested a religious accommodation.
III. SUMMARY OF DEFENSE

Respondent defends that on November 3, 2021, Complainant was granted his request for a
religious accommodation to the vaccine mandate. Complainant was exempted from the vaccine
requirement and the religious accommodation that was offered was that he continue to weekly test
for COVID-19 and mask in areas on campus where required. Following being granted the religious
accommodation, Complainant claimed that the testing requirement violated his religious beliefs
and requested that he not be required to test. Respondent defends that Complainant’s request was
reviewed, considered and determined by the Vice President of Affirmative Action Office (AAO)
and his request was denied based on ongoing public health concerns associated with the COVID-
19 pandemic. Respondent defends that the accommodation of continuing with the COVID-19
testing and masking was to further the efforts of the University so as not to compromise the health
and safety of the University community. Respondent defends that it informed Complainant of the
University policy that all employees are required to test regardless of work location. Respondent
defends that Complainant’s employment was terminated as a result of insubordination, specifically
for repeatedly not complying with the University’s COVID-19 testing requirements after he was
granted the religious accommodation of being exempted from the vaccine requirement.
Respondent defends that Complainant was formally notified that he was not compliant on at least
three (3) occasions and informed that disciplinary action may ensue.

IV. CLAIMS PRESENTED

Complainant alleges the following acts of harm:

A. Failure to Provide a Religious Accommodation

B. Discharge – Religious Creed
C. Discharge - Retaliation

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Failure to Provide a Religious Accommodation

• It is undisputed that Complainant sincerely holds a religious belief that conflicts with the
job requirements.

Complainant sincerely holds a religious belief that the Bible is the true and living Word of God,
the Bible teaches that our bodies belong to God, and are a temple of the Holy Spirit, and as such,
he is prohibited from subjecting his body to unwanted intrusions, but rather to do everything in his
ability to honor God with his body and his lifestyle.

Respondent does not dispute that this is a statement of Complainant’s sincerely held religious
beliefs or that this reason was not adequate for the purposes of providing an accommodation.
 • It is undisputed that Complainant informed Respondent of the conflict and need for
accommodation.

The parties agree that on October 27, 2021, Complainant submitted a request for a reasonable
accommodation to be exempt from the COVID-19 vaccine because of his sincerely held religious
beliefs. In his email request to Respondent’s Affirmative Action Office (AAO), Complainant
proposed the following accommodation: “Nothing needs to change regarding my work
environment. I have worked as a fully remote employee for years from the privacy of my home
office. Since this working relationship has proven successful over that time, there would be no
undue hardship for Penn State to continue with this long-standing arrangement.”

Respondent records show that on November 3, 2021, AAO granted Complainant’s request for a
religious accommodation for the University’s COVID-19 vaccine requirement. In its email
response, AAO approved Complainant’s accommodation with the requirement that: (1) “You will
be subject to weekly COVID-19 testing at the designated University location, and (2) You will
wear a mask in all indoor locations at any Penn State campus.”

Respondent records show that on January 6, 2022, Complainant submitted another request to
Respondent’s AAO for a reasonable accommodation to be exempt from the weekly COVID-19
testing because of his sincerely held religious beliefs. In his email request, Complainant reiterated
his proposed accommodation: “Nothing needs to change regarding my work agreement. Weekly
testing is unnecessary. Even by Penn State’s guidelines, the consequences of a positive test would
not result in any changes to my daily routine; I would just continue working from home. I have
worked as a fully remote employee for years from the privacy of my home office and have no need
to be on campus.”

• It is undisputed that Respondent failed to provide a reasonable accommodation.

Respondent records show that on February 3, 2022, AAO replied to Complainant via email stating,
“Please note that you have been provided with the accommodation of weekly testing and masking
based on your religious accommodation request to the vaccine mandate. As such, you will be
required to be weekly tested and required to wear a mask where appropriate. The University policy
is that all employees are required to test regardless of work location. If you are not on campus,
then details for you obtaining a mail order test kit are found at virusinfo.psu.edu.”

Respondent records show that on February 7, 2022, Complainant replied to AAO via email that he
“does not accept the accommodation offer as reasonable. A reasonable accommodation cannot
also violate my religious beliefs.” Complainant reiterated his right to a reasonable accommodation,
so long as it does not pose any undue hardship to the university. Complainant indicated that “the
consequences of a positive test or a negative test are exactly the same” and “my requested
accommodation poses no hardship for Penn State (I’m just asking to continue on with the exact
same working agreement I have had in place for years as a remote employee), I would ask that you
reconsider your rejection of my request.”

Respondent records show that on February 25, 2022, Associate Vice President for Affirmative
Action Suzanne Adair reviewed Complainant’s appeal regarding the denial of his request to be
exempted from the weekly COVID testing. “Based on this review which included information
provided by your work unit regarding expectations for your participation in on-campus work
activities at various times throughout the year, the decision regarding your request for exemption
to the weekly COVID testing will stand and you will not be granted an exemption to the testing
process. Given the ongoing public health concerns, you will continue to be required to adhere to
the weekly COVID testing as outlined in your November 3, 2021 email from AAO, per the
accommodation that you previously received for the required vaccine mandate.”

According to manager Pamela Lautsch-Bowman’s verified statement, she supervised Complainant

starting in October 2020. Complainant worked from home five days per week and has not worked
in the office or in-campus. Lautsch-Bowman stated that in non-COVID times, Complainant would
be required to come in person for team meeting, training, and teaching type of in-service but during
the pandemic, they did not have any in-person team meetings or in-service days as they were
required to be remote. Complainant was the only multi-media specialist fully teleworking because
others were working on a hybrid arrangement in November 2021. Complainant was under a
telework agreement to work off-site that was put in place by his previous supervisor John Sankey.
Lautsch-Bowman stated that she was not involved in decisions related to Complainant’s request
for religious accommodation. Lautsch-Bowman further stated that Complainant was mandated to
test weekly because it is the University policy.

According to Program Director John W. Sankey Jr.’s verified statement, he was not involved in
decisions related to Complainant’s request for religious accommodation as it was made by
Respondent’s Human Resources and Affirmative Action Office. Sankey stated that he previously
supervised Complainant prior to the COVID-19 pandemic and worked with him to put a
teleworking agreement for him to work from home five days a week and come to campus for team
meetings and as needed. Sankey stated that the last in-service meeting Complainant attended was
in January 2020. Sankey stated that during the pandemic they all worked remotely, and the rest of
the staff came back on October 5, 2021, on a hybrid telework arrangement of three days in the
office and two days at home. Sankey stated that Complainant would be required to be on campus
if they had a sponsored program to do training, design, and delivery to its contract with the
Commonwealth of Pennsylvania, but they had been doing it on Teams during the pandemic. There
were no scheduled programs at that time. Sankey further stated that Complainant was mandated
to test weekly because it was the policy when he was granted the accommodation for the vaccine
regardless of if he was working from home or not.

Respondent records show that on December 14, 2021, in-person training was scheduled for
January 6, 2022. Attendees were informed that the training session was being postponed to a later
date in the Spring 2022 academic semester and would be in person/face-to-face. No date was
provided.

Records show that Respondent scheduled to have a meeting virtually on March 18, 2022, with
Complainant to reaffirm his understanding that he had been non-complainant for 10 COVID
weekly testing cycles. However, Complainant declined to participate in the meeting. Complainant
stated that on March 4, 2022, Respondent informed him that there would be additional meetings
with Complainant if he continued to be non-compliant with his testing requirements. Complainant
stated that he did not feel the need to attend because he felt he made it clear to Respondent that he
was not going to submit to testing on March 4, 2022. In addition, Complainant stated that he was
committed to other employment that day to supplement his check while he was placed on leave.

The parties agree that on March 18, 2022, Respondent discharged Complainant as a result of
insubordination for not complying with the University mandated COVID-19 testing requirements.

In this case, the evidence shows that Respondent initially granted Complainant’s first request for
religious accommodation to be exempt from the COVID-19 vaccine but it required Complainant
to submit to weekly COVID-19 testing and wear a mask in all indoor locations at any Penn State
campus. Consequently, Complainant submitted a second request for a reasonable accommodation
to be exempt from the weekly COVID-testing requirement because of his religious beliefs and
avers that his request does not pose any hardship to Respondent because he is a fully remote
employee working from home since 2016.

Respondent’s defense that it denied Complainant’s request based on ongoing public health
concerns associated with the COVID-19 pandemic is not a valid defense. The law requires that a
Respondent provide a religious accommodation unless the sincerely held religious belief is in
question or doing so would impose more than a diminimus burden on Respondent. In this case,
Respondent did not question Complainant’s sincerely held religious belief. Although Respondent
indicated that it would be unsafe if Complainant had to be on campus for training, that concern
was speculative as the training never occurred and no in-person meetings had been scheduled.
Respondent also did not engage in the interactive process to discuss alternatives to regular testing
such as testing only when/if the Complainant would have been required to be on campus. In this
case, the Respondent cannot show that granting Complainant, a fully teleworking employee, the
reasonable accommodation to be exempt from regular COVID-19 testing would have imposed any
burden or that continuing the interactive process to find an alternative would not have been
possible.

B: Discharge – Religious Creed

• It is undisputed that Complainant is a member of a protected class.

Complainant practices Christianity as his religion. Complainant provided evidence of his sincerely
held religious beliefs, which Respondent did not question.

• It is undisputed that Complainant was performing at a satisfactory level.

Respondent admits that Complainant’s personnel file contains no disciplinary records. There were
no records to show that Complainant was disciplined for poor work performance prior to his
discharge.

• It is undisputed that Complainant was discharged.

The parties agree that on March 18, 2022, Respondent discharged Complainant as a result of
insubordination for not complying with the University mandated COVID-19 testing requirements.
 • It is undisputed that other factors indicate Complainant was treated differently because he
was in a protected class.

Records show that on March 4, 2022, Respondent held a meeting virtually with Complainant to
discuss his non-compliance with the University’s COVID-19 testing requirements. Also present at
this meeting was his immediate supervisor Pamela Lautsch-Bowman and Program Director John
Sankey. After the meeting, Respondent issued Complainant a disciplinary letter stating, “It is your
responsibility to comply with the COVID-19 testing requirements. If you are still not in
compliance as of March 14, 2022, or at any time in the future, your lack of adherence to the
University COVID-19 Testing Protocol will be considered insubordination and will result in your
immediate dismissal.

Email records show that on March 4, 2022, shortly after the meeting, Complainant filed a
discrimination complaint to the AAO alleging discrimination based on his religion and indicated
that he will be terminated because his religious beliefs prohibited him from participating in weekly
testing. In his complaint, he avers that he requested a religious accommodation to be exempt from
the weekly testing and to “simply be allowed to continue my full remote employment, as I have for
the past 6 years. There has been no need for me to travel to campus for over 2 years. In the previous
years before that, the only reason I was asked to travel to campus was for meet-and-greet type
activities, never anything pertinent to my job duties.” Complainant further alleges that Respondent
treated vaccinated employees more favorably because it required him, a fully remote employee, to
test weekly even though he informed it of a conflict with his religious beliefs, meanwhile,
vaccinated employees who did not have religious objections to the vaccine and who are on campus
every day, who can still contract and transmit the virus, are not required to test.

Complainant stated that on March 4, 2022, Respondent informed him that there would be
additional meetings with Complainant if he continued to be non-compliant with his testing
requirements.

Records show that Respondent scheduled to have a meeting on March 18, 2022, with Complainant
to reaffirm his understanding that he had been non-complainant for 10 COVID weekly testing
cycles. However, Complainant declined to participate in the meeting because he felt he made it
clear to Respondent that he was not going to submit to testing on March 4, 2022. In addition,
Complainant stated that he was committed to other employment that day to supplement his check
while he was placed on leave.

As Respondent failed to accommodate his religious beliefs and Complainant was unwilling to
comply because of those beliefs, it is reasonable to conclude that Complainant’s religious beliefs
were a factor in his discharge.

C: Discharge – Retaliation

• It is undisputed that Complainant opposed what he reasonably and in good faith believed
to be an unlawful employment practice or participated in the Equal Employment
Opportunity (EEO) process.
Respondent’s records show that Complainant engaged in multiple events of protected activity from
October 27, 2021, and most recently on March 4, 2022. Complainant requested a reasonable
accommodation and complained about religious creed discrimination.

The parties agree that on October 27, 2021, Complainant submitted a request for a reasonable
accommodation to be exempt from the COVID-19 vaccine because of his sincerely held religious
beliefs.

Respondent records show that on January 6, 2022, Complainant submitted another request to
Respondent’s AAO for a reasonable accommodation to be exempt from the weekly COVID-19
testing because of his sincerely held religious beliefs.

Respondent records show that on February 7, 2022, Complainant replied to AAO via email that he
“does not accept the accommodation offer as reasonable. A reasonable accommodation cannot
also violate my religious beliefs.” Complainant reiterated his right to a reasonable accommodation,
so long as it does not pose any undue hardship to the university.

Email records show that on March 4, 2022, Complainant filed a formal discrimination complaint
to the AAO alleging discrimination based on his religion and indicated that he will be terminated
because his religious beliefs prohibited him from participating in weekly testing.

• It is undisputed that Respondent subjected Complainant to an adverse action that would

likely discourage a reasonable person from opposing discrimination or participating in the
EEO process.

Respondent records show that on March 18, 2022, Respondent discharged Complainant as a result
of insubordination for not complying with the University’s COVID-19 testing requirements.

• It is undisputed that there was a causal connection between Complainant’s protected

activity and the adverse treatment.

Respondent records show that on March 4, 2022, Respondent held a meeting with Complainant to
discuss his non-compliance with the University’s COVID-19 testing requirements. Also present at
this meeting was his immediate supervisor Pamela Lautsch-Bowman and Program Director John
Sankey. After the meeting, Respondent issued Complainant a disciplinary letter stating, “It is your
responsibility to comply with the COVID-19 testing requirements. If you are still not in
compliance as of March 14, 2022, or at any time in the future, your lack of adherence to the
University COVID-19 Testing Protocol will be considered insubordination and will result in your
immediate dismissal.

Complainant stated that on March 4, 2022, Respondent informed him that there would be
additional meetings with Complainant if he continued to be non-compliant with his testing
requirements.

Records show that Respondent scheduled to have a meeting on March 18, 2022, with Complainant
to reaffirm his understanding that he had been non-compliant for 10 COVID weekly testing cycles.
However, Complainant declined to participate in the meeting because he felt he made it clear to
Respondent that he was not going to submit to testing on March 4, 2022. In addition, Complainant
stated that he was committed to other employment that day to supplement his check while he was
placed on leave.

Complainant was terminated effective March 18, 2022

Respondent records show that on March 21, 2022, three days after it terminated Complainant,
Penn State announced on its website that beginning March 23, 2022, face masks will be optional
in all indoor spaces, except in areas where the law requires them to be worn. Starting March 26,
2022, Penn State will pause its required COVID-19 testing for students, faculty, and staff.

It is obvious that the Respondent knew as of March 18, 2022, the day they told Complainant he
was discharged that they were going to be changing their policy effective the following Monday.
Given that knowledge, it appears that Respondent’s decision to discharge Complainant was
retaliatory.

As Complainant had not yet received his final paycheck nor had arrangements been made to return
his equipment, Respondent could have allowed Complainant to continue to work under the new
policy but chose to continue with the action to terminate him.

B. DETERMINATION

A: Failure to Provide a Religious Accommodation

WHEREFORE, based on the evidence described above, the Pennsylvania Human

Relations Commission concludes that there is probable cause to believe that Respondent, The
Pennsylvania University, discriminated against Complainant, Zachary Rackovan, on the basis
of Religious Creed, in violation of Section 5(a) of the Pennsylvania Human Relations Act.

B: Discharge - Religious Creed

WHEREFORE, based on the evidence described above, the Pennsylvania Human

Relations Commission concludes that there is probable cause to believe that Respondent, The
Pennsylvania University, discriminated against Complainant, Zachary Rackovan, on the basis
of Religious Creed, in violation of Section 5(a) of the Pennsylvania Human Relations Act.

C: Discharge - Retaliation

WHEREFORE, based on the evidence described above, the Pennsylvania Human Relations
Commission concludes that there is probable cause to believe that Respondent, The
Pennsylvania University, discriminated against Complainant, Zachary Rackovan, on the basis
of Retaliation, in violation of Section 5(d) of the Pennsylvania Human Relations Act.
PENNSYLVANIA HUMAN RELATIONS COMMISSION

By: Waydee Rivera

Waydee Rivera, Human Relations Representative II
 TERMS OF ADJUSTMENT

• Reinstatement to Complainant’s position with restored seniority, benefits and pay had he
remained in his position.

• The difference in wages Complainant would have earned had Respondent him on March 18,
2022 (minus his actual earnings during the period) through the date, this matter is resolved.

• Payment of interest to Complainant for any back-pay liability computed at the rate of
• 6 percent per annum.

• Reasonable and verifiable out-of-pocket expenses Complainant incurred in pursuing his

discrimination complaint with the Pennsylvania Human Relations Commission.

• Respondent will participate in Anti-Discrimination training provided by the

• Pennsylvania Human Relations Commission. Training will occur within 30 days of an
executed settlement of this case.