Declaration of Sharon Sutton — America's Frontline Doctors v. Becerra (Dkt. 39)

Summary

Declaration of Sharon Sutton, Chief of the Human Capital Policy, Programs, and Accountability Office at the National Aeronautics and Space Administration (NASA), Document 39, filed December 17, 2021 in America's Frontline Doctors, et al. v. United States of America, et al., Civil Action No. 2:21-CV-702-CLM, in the U.S. District Court for the Northern District of Alabama. The declaration describes NASA's requirement that employees be vaccinated against COVID-19 under Executive Order No. 14043, subject to medical and religious exceptions, and an enforcement process that begins with education and counseling. It states that Plaintiff Joseph Leahy and Plaintiff Michael Nelson each have a pending religious exception request and will not be disciplined while it remains pending. It is made under penalty of perjury.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

Text recognized from a scanned document; may contain errors.

Case 2:21-cv-00702-CLM Document 39 Filed 12/17/21 Page 1of6

FILED

2021 Dec-17 PM 01:01
U.S. DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

AMERICA’S FRONTLINE
DOCTORS, et ai.,

Plaintiffs,
CIVIL ACTION NO.
Vv. 2:21-CV-702-CLM

UNITED STATES OF AMERICA, et
al.,

Defendants.

DECLARATION OF SHARON SUTTON

I, Sharon Sutton, hereby declare as follows:

1, I am the Chief of the Human Capital Policy, Programs, and
Accountability Office, Office of the Chief Human Capital Officer (OCHCO) at the
National Aeronautics and Space Administration (NASA). In this position, I have
duties related to NASA’s implementation of Executive Order No. 14043. The
statements in this Declaration are based on my personal knowledge and
information provided to me in my official capacity.

2. Consistent with Executive Order No. 14043, NASA is requiring its

employees to be vaccinated against COVID-19, subject to such exceptions as

N.D. OF ALABAMA
Case 2:21-cv-00702-CLM Document 39 Filed 12/17/21 Page 2 of 6

required by law. Required exceptions include those for medical or religious
reasons. NASA plans to use a phased process for implementing this COVID-19
vaccination requirement with respect to employees who have not timely provided
proof of vaccination and do not have a pending or approved exception request.

3. NASA intends to provide unvaccinated employees with every
opportunity to become vaccinated. If an unvaccinated employee takes steps
toward becoming vaccinated, the enforcement process would be put on hold to
give the employee time to become fully vaccinated. In addition, if an unvaccinated
employee requests a medical or religious exception at any time, the enforcement
process would be put on hold until! NASA has adjudicated the exception request.

4, For unvaccinated employees with no pending exception request,
NASA’s enforcement process will begin with a period of education and counseling
about the benefits of vaccination and ways to obtain the vaccine. After this
counseling period concludes, unvaccinated employees who have not submitted
exception requests may be subject to progressive, formal discipline, including a
proposed suspension followed by, where appropriate, proposed removal from
employment.

5. On November 29, 2021, the Office of Management and Budget
(OMB) and the Office of Personnel Management (OPM) notified the President’s

Management Council to encourage agencies to continue to educate and counsel
Case 2:21-cv-00702-CLM Document 39 Filed 12/17/21 Page 3 of 6

employees, but to delay enforcement action, beyond education and counseling
(and, if warranted, a letter of reprimand), for most employees until 2022. NASA
intends to follow this guidance.

6. Plaintiff Joseph Leahy is an employee of NASA with a service
commencement date of August 19, 2002. He is a competitive service, General
Schedule employee (GS-861-15, Supervisory Aerospace Engineer), currently
employed at the Marshall Space Flight Center. He qualifies as an “employee”
subject to the Civil Service Reform Act (CSRA). 5 U.S.C. § 7511(a).

7. Plaintiff Leahy initiated a request with NASA for a religious
exception on September 20, 2021. That request remains pending.

8, Pursuant to NASA policy, as long as Plaintiff Leahy’s exception
request remains pending, Plaintiff Leahy will not be disciplined for being
unvaccinated.

9. Plaintiff Michael Nelson is an employee of NASA with a service
commencement date of December 5, 1982. He is a competitive service, General
Schedule employee (GS-861-14, Lead Aerospace Engineer), employed at the
Marshall Space Flight Center. He qualifies as an “employee” subject to the CSRA.

10. Plaintiff Nelson initiated a request with NASA for a religious

exception on October 15, 2021. That request remains pending.
Case 2:21-cv-00702-CLM Document 39 Filed 12/17/21 Page 4 of 6

11. Pursuant to NASA policy, as long as Plaintiff Nelson’s exception
request remains pending, Plaintiff Nelson will not be disciplined for being
unvaccinated.

12. At NASA, all requests for religious exceptions will be reviewed at the
Agency level by the Vaccine Exception Agency Review Team (VEART). The
VEART will advise three senior NASA officials designated to make
determinations as to whether employees seeking a religious exception have a
sincere religious belief or practice that conflicts with the vaccine requirement. The
VEART will follow guidance from the Equal Employment Opportunity
Commission (EEOC) in making recommendations. If NASA determines that there
is a conflict between the vaccination requirement and a sincerely held religious
belief, reasonable-accommodation managers and supervisors will work to
determine whether the religious belief or practice can be accommodated. If the
designated senior NASA officials deny an exception request, the respective
employee may seek reconsideration from another designated senior NASA official
and would not be disciplined pending the outcome of that reconsideration.

13. | If Plaintiff Leahy’s or Plaintiff Nelson’s exception request is denied
initially and also upon reconsideration, NASA will provide a new deadline by
which they must provide proof of full vaccination against COVID-19. This new

deadline will provide the employee with at least two weeks to initiate the
Case 2:21-cv-00702-CLM Document 39 Filed 12/17/21 Page 5of6

vaccination process. During this time, the employee would not be disciplined for
being unvaccinated. |

14. If Plaintiff Leahy’s or Plaintiff Nelson’s exception request is denied
and they also fail to meet the new vaccination deadline, NASA would expect to
initiate the enforcement process outlined in paragraphs 2-4 above.

15. Plaintiff Nelson also is employed in a bargaining unit represented by
the Marshall Engineers and Scientists Union (MESA), Local 27, International
Federation of Professional and Technical Engineers (IFPTE). He thus could file a
grievance under the negotiated grievance procedure, concerning (a) any matter
relating to his employment, (b) an alleged breach or misapplication of the
negotiated agreement between Marshall Space Flight Center and MESA, or (c) any
claimed violation, misinterpretation, or misapplication by Marshall Space Flight
Center of any law, rule, or regulation affecting his conditions of employment as
defined in 5 U.S.C. § 7103(a)(14). MESA and the Marshall Space Flight Center
will attempt to resolve the grievance per the procedures specified in the negotiated
agreement. Ifthe grievance remains unresolved, it may be subject to binding
arbitration, with the option to file exceptions to the arbitrator’s award to the
Federal Labor Relations Authority.

16, Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that

the above statements are true and correct.
Case 2:21-cv-00702-CLM Document 39 Filed 12/17/21 Page 6 of 6

Sharon Sutton ’

Chief, Human Capital Policy, Programs, and
Accountability Office

Office of the Chief Human Capital Officer

NASA


File and source

File

gov.uscourts.alnd.177186.39.0.pdf

Size

151,220 bytes

SHA-256

bf2e461310c3d8b9f4a598f987d53b727468fad638635cf110072e143a04b940

Our copy

gov.uscourts.alnd.177186.39.0.pdf

Original

No public link identified.