0120180910
09-27-2018
Sharonda M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sharonda M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120180910
Hearing No. 530-2015-00084X
Agency No. 1C-451-0059-14
DECISION
On January 16, 2018, 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 December 21, 2017, 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 the Pregnancy Discrimination Act (PDA), 42 U.S.C. 2000e(k) (1978). For the following reasons, the Commission VACATES the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, 2315-0063, PS-6, at the Agency's Columbus, Ohio, Processing and Distribution Center (P&DC). Complainant is an Asian and Indian female.
Complainant returned from maternity leave on December 9, 2013. Complainant worked on a detail as a Data Collection Technician in In-Plant Support from December 9, 2013, to May 3, 2014. On May 3, 2014, Complainant returned to her Mail Processing Clerk position of record. From December 9, 2013, to May 28, 2014, Complainant used the In-Plant Support Conference Room to express breast milk.
Complainant alleged that, on May 15, 2014, the Acting In-Plant Support Manager (S1) approached her near the In-Plant Support Conference Room and asked her why she was in the In-Plant Support area. Complainant stated that she told S1 that she was still using the conference room to pump breast milk. On May 29, 2014, S1 asked the Maintenance Manager (S2) to remove Complainant's access to the In-Plant Support area. S1 averred that Complainant was not permitted to be in the area because she no longer worked in In-Plant Support. According to Complainant, a Caucasian coworker of European descent (C1) who did not work in In-Plant Support retained access to the In-Plant Support area, including after May 29, 2014.
Complainant stated that, from May 29 to June 12, 2014, S1 told Complainant to use the bathroom to pump breast milk. According to Complainant, the union asked S1 and other managers for a more private and sanitary place for Complainant to pump. Complainant averred that she pumped in the bathroom from May 29 to June 12, 2014, to ease the pain of not regularly pumping but threw away the milk because of the unsanitary conditions. Complainant stated that she was ultimately unable to sustain milk production due to not pumping regularly.
S1 averred that, when she learned that Complainant needed a private space to express breast milk, she arranged for Complainant to use an alternate private room. Complainant's first-level supervisor (S3) stated that Complainant was provided with a private, sanitary room "immediately" after Complainant asked for a space to pump. Report of Investigation (ROI) at 89-90. On June 12, 2014, S1 permitted Complainant to start using the supervisor's locker room for expressing breast milk. According to the record, this locker room was clean and could be locked from the inside when Complainant was using it.
Complainant alleged that a Caucasian Operation Industrial Engineer of European descent (C2) was provided with a sanitary locked room to pump breast milk. S1 stated that C2 worked in In-Plant Support so had access to the In-Plant Support area and also had a different supervisor than Complainant.
On June 11, 2014, Complainant initiated contacted with an EEO Counselor. On September 25, 2014, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (Indian), and sex (female/lactation) when:
1. On April 7, 2014, she was informed that she was not selected for a Data Collection Technician position; and
2. On May 29, 2014, her access to a conference room that she was using to pump breast milk was taken away.
The Agency dismissed claim 1 for untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Over Complainant's objection, the AJ issued a decision granting the Agency's motion for summary judgment.
The AJ concluded that no genuine issue of material fact existed and that summary judgment was therefore appropriate. The AJ found that Complainant failed to establish a prima facie case of disparate treatment because she did not demonstrate any similarly-situated employees outside of her protected classes who were treated more favorably. The AJ noted that C2 was not a proper comparator because C2 worked in In-Plant Support and therefore appropriately had access to the In-Plant Support Conference Room. The AJ found that Complainant failed to rebut the Agency's legitimate, nondiscriminatory reason, which was that removal of her access to In-Plant Support was required by Agency policy when she no longer needed it for her job assignment. The AJ's decision did not address Complainant's allegation that C1 retained access to the In-Plant Support area despite not working there. The AJ also did not analyze Complainant's complaint as a failure to accommodate under the Pregnancy Discrimination Act because she did "not allege that the agency provided other employees who were not lactating [ ] a place, other than the restroom, to address similarly limiting medical conditions." AJ Decision (AJD) at 5.
The Agency's final order fully implemented the AJ's decision. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that her claim should have been analyzed as a claim of failure to accommodate under the Pregnancy Discrimination Act in addition to a Title VII disparate-treatment claim. According to Complainant, the AJ ignored evidence of pretext in not addressing the fact that C1 retained access to In-Plant Support despite not having any official job duties in that area. Complainant argues that the AJ inappropriately assessed S1's credibility in finding that she only learned of Complainant's need for accommodation shortly before providing access to the supervisor's locker room. Complainant requests that the matter be remanded for a hearing.
The Agency makes no contentions in response to Complainant's appeal.
STANDARD OF REVIEW
In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a summary judgment decision and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a summary judgment decision on this record. The Commission's regulations allow an AJ to issue a summary judgment decision 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 summary judgment decision is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a summary judgment decision only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a summary judgment decision, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for summary judgment. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for summary judgment).
The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that, when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (February 24, 1995).
We note that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See EEO MD-110 at 7-1; see also 29 C.F.R. � 1614.109(e). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998); see also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995).
In the instant case, after a careful review of the record, we find that the AJ erred when she concluded that there was no genuine issue of material fact in this case.
Accommodation of Complainant's Pregnancy-Related Condition
We disagree with the AJ's conclusion that Complainant did not allege that the Agency failed to accommodate her pregnancy-related condition, lactation. 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 Security 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) (1994).
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. Gonzales v. Marriott Int'l, Inc., 142 F. Supp. 3d 961, 978 (C.D. Cal. 2015) (citing Young v. United Parcel Service, 575 U.S. ___, 135 S. Ct. 1338, 1354 (2015)).
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, 575 U.S. at ___, 135 S. Ct. at 1354.2
An agency may then seek to justify its refusal to accommodate the complainant by relying on "legitimate, nondiscriminatory" reasons for denying her accommodation. Id. at 1354 (citing, McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)). "That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those ('similar in their ability or inability to work') whom the employer accommodates." Id.
The complainant may then show that the agency's reasons are pretextual, which can be done "by providing sufficient evidence that the employer's policies impose a significant burden on pregnant workers, and that the employer's "legitimate, nondiscriminatory' reasons are not sufficiently strong to justify the burden, but rather -- when considered along with the burden imposed -- give rise to an inference of intentional discrimination." Young, 575 U.S. at ___, 135 S. Ct. at 1354.
Here, there are genuine issues of material fact relating to prongs 3 and 4 of a prima facie case of failure to accommodate a pregnancy-related condition. Although S1 and S3 represented that they accommodated Complainant quickly upon learning that she needed a place to pump breast milk, it is undisputed that Complainant was required to use the bathroom from May 29 to June 12, 2014. The AJ should assess the credibility of S1 and S3's representations of when they learned about Complainant's need for accommodation and whether there was a delay in providing a space other than the restroom. From the record, it is also unclear whether the bathroom was a reasonable accommodation. The record is devoid of evidence as to whether the Agency accommodates other employees for medical conditions that require accommodation with private spaces other than the restroom. It is undisputed that C2 was provided with a private space for pumping. Therefore, there are genuine issues of material fact, and the record needs to be further developed.
We further find that there are genuine issues of material fact as to whether Complainant's access to In-Plant Support was required to be removed, which would have established that the Agency's reasons were pretextual. We note that Complainant indicated that C1 did not work in In-Plant Support yet retained access to the In-Plant Support area. The record requires further development regarding C1's alleged access to the In-Plant Support area.
We find that there are too many unresolved issues regarding whether the Agency accommodated Complainant's needs as a nursing mother and, if not, whether Complainant established that the Agency's reasons for not doing so were pretextual. Therefore, the AJ should not have granted summary judgment in favor of the Agency with regard to this matter. See Heidi B. v. Dep't of Health and Human Serv., EEOC Appeal No. 0120152308 (June 3, 2016) (finding that the Agency's final decision did not address Complainant's claim that she was denied the reasonable accommodation of a lactation room); Pregnancy Guidance, at I (B)(1) (noting that "evidence indicating disparate treatment based on pregnancy, childbirth, or related medical conditions includes . . . an employer policy or practice that, although not facially discriminatory, significantly burdens pregnant employees and cannot be supported by a sufficiently strong justification").
Disparate Treatment Based on Race and National Origin
We also find that Complainant established prima face cases of race and national origin discrimination. In order to establish a prima facie case of race or national origin discrimination, Complainant must demonstrate that: (1) she is a member of a protected class; (2) she was subjected to adverse treatment; and (3) she was treated differently than otherwise similarly situated employees outside of her protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar 13, 2003); Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). Complainant is Asian and Indian, whereas she alleged that Caucasian coworkers of European descent were treated differently regarding access to In-Plant Support.
In finding no discrimination based on race and national origin, the AJ relied on the Agency's legitimate, nondiscriminatory reason that its policy mandated that Complainant could not have access to the In-Plant Support area after her detail ended. However, the AJ did not address Complainant's evidence that C1, a Caucasian coworker of European descent, retained access to this area despite not working in In-Plant Support. Moreover, Complainant's detail ended in early May, yet S1 did not direct that her access to the In-Plant Support area be removed until May 29, 2014. Therefore, S1's credibility should be assessed regarding this issue. We find that there are genuine issues of material fact as to whether Complainant established pretext based on race and/or national origin and that credibility must be assessed at a hearing. Therefore, summary judgment also should not have been granted as to this claim.
CONCLUSION
Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency's final order and remands the matter to the Agency in accordance with this decision and the ORDER below.
ORDER
The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC's Philadelphia District Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
September 27, 2018
__________________
Date
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 We note that the investigation of Complainant's EEO complaint ended before the Supreme Court's decision in Young solidified this framework. However, we find that Complainant clearly alleged that the Agency failed to accommodate her when she was required to use the bathroom to express breast milk.
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