[Redacted], Leisa C., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Aug 19, 2021

Appeal No. 2020001074 (E.E.O.C. Aug. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leisa C.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020001074 Hearing No. 420-2017-00205X Agency No. BOP-2016-0504 DECISION On October 31, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 1, 2019 final order concerning her equal employment opportunity (EEO) 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Correctional Treatment Specialist/Case Manager, GS-0101-11, at the Agency’s Federal Correctional Facility in Jackson, Mississippi. On April 21, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female/pregnancy), disability (sciatica), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when: 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. 2020001074 2 1. Complainant was subjected to harassment; 2. on various occasions, Complainant was subjected to pregnancy discrimination when her various requests for a reasonable accommodation were denied or delayed; and 3. on April 29, 2016, Complainant became aware that her supervisor had lowered her Fourth Quarter performance evaluation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s August 9, 2017 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on August 26, 2019. Specifically, the AJ found that with regard to harassment, the actions complained of were insufficiently severe and/or pervasive to constitute harassment, and that with regard to her lowered evaluation, Complainant failed to state a claim because the lowered evaluation was not placed in Complainant’s official personnel folder and it “no longer exists.” With regard to the denial of a reasonable accommodation, the AJ appeared to indicate that Complainant failed to state a claim, finding that Complainant “has not shown that she suffered any harm, was subjected to adverse treatment, or suffered an adverse employment action.” The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 2020001074 3 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Pregnancy Discrimination It is unlawful for an employer to “discriminate against any individual with respect to ... terms, conditions, or privileges of employment, because of such individual's ... sex.” 42 U.S.C. § 2000e- 2(a)(1). “The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). “Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work....” Id. A complainant alleging that the denial of an accommodation for a pregnancy-related condition constituted disparate treatment sex discrimination may state a prima facie case by showing that: (1) she belongs to the protected class; (2) she sought accommodation; (3) the agency did not accommodate her; and (4) that the agency did accommodate others “similar in their ability or inability to work.” Young v. United Parcel Service, 575 U.S. ___, 135 S. Ct. 1338, 1354 (2015). We find that Complainant has not established a prima facie case of pregnancy discrimination. Complainant has shown that she belonged to a protected class due to her pregnancy and sciatica. Complainant sought three accommodations at different times: her initial request “starting in October 2015” which was prior to the birth of her child, was to be able to work in an alternate location from her regular worksite. Complainant requested a different accommodation “in December” of that same year for “national volunteer leave.” Finally, on or about March 29, 2016, following the birth of her child, Complainant sought an accommodation of a private room to express milk for her baby while at work. With regard to Complainant’s request for an alternate work location, we note that Complainant did not initially identify the nature of her disability to management, nor did she explain how the requested accommodation would accommodate her disability. Instead Complainant wrote on the request form: “This request is due to a medical condition that I have stemming from my pregnancy. I cannot discuss my medical condition due to the HIPPA [sic] Act. However, the Medical Chief Officer has received my medical documentation with its rationale.” Complainant’s Supervisor (S1, male) averred that he was aware that Complainant was pregnant, but he was not aware that she had any impairment prior to her request. 2020001074 4 S1 further averred that Complainant made a verbal accommodation request to him and told him that “she was having difficulties walking to the Housing Unit.” S1 maintains that he forwarded Complainant’s request but was not involved in the decision-making process concerning the granting of the request. The Associate Warden (AW1, female) averred that she received Complainant’s written request on or about October 23, 2015, but that “Complainant submitted the request form to her supervisor, but the supporting medical documentation to the Clinical Director.” AW1 further averred that “the medical documentation did not specify why Complainant needed the reasonable accommodation [but that despite this Complainant] received an alternate accommodation offer. . . movement of her office to a downstairs location, pending receipt of additional medical documentation.” On November 2, 2015, AW1 submitted Complainant a response to her request, which stated: You have requested to be able to work your caseload from either the Computer Lab or Associate Warden's Office. To support your request, you submitted medical documentation to [the] Clinical Director. This documentation, from [Physician’s name omitted] states, in relevant part, ''I have recommended that she not be allowed no [sic] prolonged walking and standing." In response, on October 22, 2015, [the Clinical Director] sent you an e-mail. This e-mail advised you that your doctor's note should specify walking and standing time-frames and distances. He then provided you examples, ie., "No prolonged standing over 20 minutes" or ''No walking more than 50 feet," or "No walking for more than 10 minutes at a time." He also stated, “... we just need specifics to ensure we accommodate you appropriately.” On the Agency Request for Reasonable Accommodation Form, AW1 further stated with regard to the alternate accommodation that: The offered accommodation would eliminate the employee's need to ascend to the second tier of a housing unit. By temporarily moving her work area to the Echo 1 or Echo 2 area of the housing unit, the employee would be able to complete her workload on the first floor of the housing unit. Following a review of the record we find that the Complainant has not shown that the Agency failed or unreasonably delayed providing Complainant an alternate work location. The record reveals that Complainant’s failure to promptly provide detailed medical information to the deciding official explaining the nature of her impairment contributed to any delay in her receiving an accommodation. We note in this regard that, to the extent Complainant argues that the Agency was aware of her pregnancy and therefore should have acted even without detailed medical information, being aware of an employee’s pregnancy is not the same thing as being aware that that employee requires a specific accommodation. Complainant herself indicates that her request was due to pregnancy-induced sciatica and Complainant has not shown that any management official was aware she had sciatica prior to her request. 2020001074 5 Indeed, as S1 testified, he was aware Complainant was pregnant, but he was not aware, prior to her accommodation request, that she had any impairment. Furthermore, merely knowing that an employee has an impairment, such as sciatica, does not put the Agency on notice regarding how to provide an appropriate and effective accommodation. Because the Agency was not initially provided sufficient medical information regarding the nature of Complainant’s impairment, we find that any delay in providing an accommodation was not so unreasonable as to constitute a denial of her request. We next turn to Complainant’s request for “national volunteer leave.” A review of the record shows Complainant submitted a request dated December 30, 2015. The record further shows that a screening committee approved her request on January 11, 2016. While there was subsequently some confusion among management regarding whether or not Complainant had exhausted her annual leave prior to her request, a pre-requisite to participation in the volunteer leave program, by March 2, 2016 the record shows that the Agency retroactively awarded Complainant 160 hours of leave. We therefore find that Complainant was not denied participation in the program. Finally, with regard to Complainant’s request for a room to express milk, we note that the Commission has held that a complainant’s status as a nursing mother is protected under the Pregnancy Discrimination Act (Pub. L. 95-955) (hereafter PDA). See O’Brien v. National Sec. Agency, EEOC Appeal No. 01951902 (May 27, 1997). The PDA requires that an agency treat women affected by pregnancy, childbirth, or related medical conditions the same for all employment related purposes, as other persons not so affected but similar in their ability or inability to do work. 42 U.S.C. § 2000e(k). An employee who is lactating “must have the same freedom to address such lactation-related needs that she, and her co-workers, would have to address other similarly limiting medical conditions.” See EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues, EEOC Notice 915.003, I (A)(4)(b) (rev. June 25, 2015) (Pregnancy Guidance). Discriminating against a woman who is lactating or expressing breast milk violates Title VII and the PDA. EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 430 (5th Cir. 2013). Title VII mandates the provision of a reasonable accommodation for an employee who is lactating. Heidi B. v. Department of Health and Human Services, EEOC Appeal No. 0120171750 (Feb. 28, 2019) (citing Gonzales v. Marriott Int’l, Inc., 142 F. Supp. 3d 961, 978 (C.D. Cal. 2015) (citing Young v. United Parcel Service)). Request for reconsideration denied, EEOC Request No. 2019002792 (June 25, 2019). The record shows that Complainant first made her request on March 29, 2016, and was told by a Human Resource Specialist (HRS, female) that “we don’t have a place for that.” HRS confirms that, “Complainant saw me in the administrative hallway and asked me if Human Resources had a place for her to pump breast milk; my response was I didn't know of an area in Human Resources and that I would ask my supervisor when I see her.” Complainant made another request to another Associate Warden (AW2, male) on April 18, 2016, but Complainant maintains that he ignored her. The record further shows that AW2 issued a memorandum to all staff identifying a specific location for employees to use to express milk on May 16, 2016, almost one month later. 2020001074 6 Complainant maintains that by this time it was too late as her milk had dried up. We therefore find that Complainant has shown that the Agency delayed in providing Complainant a room to express milk. Following a review of the record, however, we find that Complainant has not identified other similarly situated coworkers who were treated differently. When asked to identify such individuals, Complainant failed to do so, stating, “Agency controls these documents on all staff accommodated for injury or disability.” Because Complainant has not identified others “similar in their ability or inability to work” who did receive analogous accommodations where she did not, we find she has not established a prima facie case of pregnancy discrimination when the Agency delayed in providing her a location to express milk. We note that in Puente v. Department of Homeland Security, EEOC Appeal No. 07A30018 (October 15, 2003), we found that the complainant established a prima facie case of pregnancy discrimination when she was denied a place to express milk where the record established that similarly situated male employees were permitted to use rest breaks and lunch periods to satisfy their bodily functions or perform personal hygiene, as well as make personal purchases and perform errands, including a male co-worker who had a colostomy bag and who was permitted to take breaks that extended past the allotted twenty minutes without having such time charged to leave. In the instant case, however, we find that Complainant has made no such showing and thus has not established a prima facie case of pregnancy discrimination. Disparate Treatment AW2 averred that S1 lowered Complainant’s evaluation “in error.” The Human Resource Manager (HRM: female, no claimed disability) averred that she assisted AW2 in “correcting [Complainant’s] eval [sic] because [S1] had transferred” to another facility. Complainant herself acknowledges that the correction was made after she brought it to HRM’s attention. We note that the 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. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Because the matter was subsequently corrected, we agree with the AJ’s finding that Complainant has not established a prima facie case of disparate treatment because she has not shown she is an aggrieved employee. Hostile Work Environment We note initially that, to the extent that Complainant is alleging that she was subjected to a hostile work environment when she was denied an alternative work location, denied participation in the volunteer leave program, and denied a place to express milk, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes such claims must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). 2020001074 7 A prima facie case of hostile work environment that includes such claims is precluded based on our finding that complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges the following acts of harassment occurred: from October 2015 through March 3, 2016, Complainant received excessive telephone calls from management officials concerning her progress and expected return date while she was out on medical leave; and on April 29, 2016, Complainant became aware that S1 had lowered her fourth quarter evaluation, which caused emotional distress despite the evaluation being subsequently corrected. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris, the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of the record we find that Complainant has not shown that the actions complained of either involved or were based on her protected bases. Nor do we find that the actions were sufficiently severe and/or pervasive so as to result in discriminatory changes to the terms and conditions of Complainant’s employment. 2020001074 8 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not established, by a preponderance of the evidence, that discrimination or reprisal occurred, and we AFFIRM the final order. 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. 2020001074 9 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 August 19, 2021 Date