U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxane C.1, Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency. Appeal No. 0120131635 Hearing No. 450-2012-00256X Agency No. 1G761001512 DECISION On February 1, 2013, Complainant filed a timely appeal from the Agency's January 29, 2013, final order (FAD) 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. For the following reasons, the Commission VACATES the Agency's FAD, which fully implemented an EEOC Administrative Judge's (AJ) finding of no discrimination issued on summary judgment, REMANDS the complaint for a hearing. ISSUE PRESENTED Was the grant of summary judgment improper because there were genuine issues of material fact concerning whether Complainant was denied accommodation because of her pregnancy? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Jack D. Watson Processing & Distribution Center in Fort Worth, Texas. Complainant's position description required that she load, unload, and move bulk mail and perform other duties incidental to the movement and processing of mail, and requires that she lift 25 to 70 pounds. Report of Investigation (ROI), p. 86. Complainant became pregnant. There is some indication in the record that, upon her informing management of this, they requested information regarding her work tolerance and medical restrictions. See EEO Counselor's Report, ROI, p. 46. On August 23, 2011, Complainant submitted her first Work Tolerance Limitations to Return to Work form (Work Tolerance form) to a Supervisor, Distribution Operations (S1), who suggested that Complainant give the form to the facility Nurse. Agency's Motion for a Decision without a Hearing, p. 2. Complainant was allowed to continue working in her position. Id. This Work Tolerance form does not appear in the record and there is no indication of what restrictions it contained for Complainant. Around October 11, 2011, Complainant submitted another Work Tolerance form to S1, which set forth the following limitations: two hours of standing, one hour of walking, five hours of sitting, lifting no more than 10 pounds, no pushing or pulling, and only 1 to 3 hours of occasional bending, squatting, climbing, kneeling, and twisting. ROI, p. 151; Agency's Motion for a Decision without a Hearing, p. 2. Complainant was allowed to work in the "Dump-N-Cull" area for one shift but later that evening S1 informed her that she needed to speak to another Supervisor, Distribution Operations (S2) regarding her medical restrictions. ROI, p. 11-12. S2 told Complainant to clock out because there was no work available for her within her medical restrictions. ROI, p. 26, 68. Complainant explained that she was working in the Dump-N-Cull area cancelling mail all evening and that was within her restrictions. Id. at p. 26-27. S2 informed Complainant that the Agency was only legally obligated to accommodate employees injured on the job, and that Complainant was not entitled to light duty work because she was not injured on the job. Agency's Motion for a Decision without a Hearing, p. 2; ROI, p. 27, 68. S2 further informed Complainant that Mail Handlers did not have any seated jobs. ROI, p. 27. S2 informed Complainant that she would provide her with forms to request an accommodation through the Light Duty Committee. ROI, p. 27. Complainant apparently was sent home without any work at that time. Id. The following day, Complainant returned to work to pick up the forms from S2 to request an accommodation through the Agency's Light Duty Committee. ROI, p. 27, 68. On October 17, 2011, Complainant returned to work to submit the forms requesting temporary light duty from October 17, 2011, through March 3, 2012. ROI, p. 27, 31, 68, 149. She also submitted a new Work Tolerance form, which increased her standing, walking, and sitting restrictions to eight hours, when they were previously two, one, and five hours respectively. ROI, p. 30, 150. Complainant's restrictions on bending, squatting, climbing, kneeling, and twisting remained unchanged. Id. The new restrictions also included that Complainant be allowed to take a 15-minute break each hour, and increased her lifting restriction from 10 pounds to 15 pounds. Id. Complainant presented these restrictions to S2, who explained that Complainant had to wait for the Light Duty Committee to make a decision before she could return to work. ROI, p. 68-69. On October 18, 2011, S2 wrote on the bottom of the light-duty request form Complainant had submitted to her: "Due to [Complainant's] lifting restrictions (15 lb) we cannot accommodate her at this time in her bid area. Also the restrictions of a break of 15 minutes an hour cannot be accommodated." ROI, p. 149. S2 then sent the documentation to the Light Duty Committee, apparently for consideration. ROI, p. 85. On October 22, 2011, Complainant reported to work to meet with her union president. ROI, p. 27, 28, 69. They spoke to the Acting Manager of Distribution Operations (S3) because S2 was off work. S3 allegedly instructed Complainant to report to work in her bid area, which she did on October 23 and 24, 2011. ROI, p. 12. Complainant explained that when she and the union president met with S3, he thought her restrictions were reasonable. ROI, p. 12. However, at the end of her shift on October 24, 2011, Complainant was called to the management office where she spoke to S2, S4 (her immediate supervisor), and the Manager of Distribution Operations (S5), who informed her that S3 had made a mistake by allowing her to work. ROI, p. 69. Complainant was not permitted to return to work, and was asked to wait until the Light Duty Committee made a decision on her request. ROI, p. 12-13. Complainant alleged that also during the meeting on October 24, 2011, S5 asked her about a rumor she heard about whether or not Complainant was truly pregnant. ROI, p. 60. Complainant reassured S5 that she was pregnant, and according to Complainant, S5 went on to comment that it was just a rumor and compared Complainant to the singer Beyonce and how people were saying she was not really pregnant. ROI, p. 60. The Light Duty Committee met to discuss Complainant's request for accommodation, and determined that it could not accommodate her based on the severity of her medical restrictions. ROI, p. 134, 137, 143. By letter dated November 10, 2011, the Light Duty Committee denied Complainant's request, informing her that no light-duty assignments were available within her craft to safely accommodate her limitations. ROI, p. 71, 148. Testimony from one member of the Light Duty Committee revealed that "the main reason no work was available was because Complainant's restrictions included taking 15-minute breaks every hour." ROI, p. 16. Another member testified that "Complainant's restrictions included a break every 15 minutes (sic) and there was no work in the Plant that would allow for such accommodations." ROI, p. 16. Subsequent to the denial of light duty, Complainant remained on leave without pay; it is unclear for how long. ROI, p. 23. Complainant's submissions indicate that she may have remained on leave without pay for the remainder of her pregnancy. See, e.g., Complainant's Response to Agency's Motion for Findings and Conclusions without a Hearing; see also, ROI, p. 23. Complainant filed a formal EEO complaint on January 25, 2012, alleging that the Agency discriminated against her on the bases of race (Hispanic2) and sex (female/pregnancy) when commencing October 11, 2011, Complainant was denied reasonable accommodation and sent home with no work available.3 At the conclusion of an investigation into the allegations, Complainant was provided a copy of the ROI and requested a hearing before an AJ. The AJ issued a decision without a hearing finding no discrimination. The AJ concluded that Complainant did not establish a prima facie case of sex discrimination because she did not identify any employees outside of her protected class who sustained an off-the-job injury and were provided with light-duty work. AJ Decision, p. 5. The AJ also concluded that the Agency stated a legitimate, nondiscriminatory reason for denying Complainant the accommodation of light-duty work. Id. According to the AJ, the Agency stated that it could not provide Complainant light-duty work because there was none available within her medical restrictions, and Complainant was unable to show this reason was pretext for discrimination. Id. CONTENTIONS ON APPEAL The Agency contends that, because Complainant did not submit any brief in support of her appeal, she failed to show that there is a dispute and a need for a hearing. Agency's Brief In Support Of Appeal (Agency Brief), p. 6.4 Further, the Agency contends that summary judgment in its favor was proper because Complainant "failed to identify an employee outside of her protected class who was truly similarly situated and treated more favorably." Agency's Brief, p. 8. The Agency states that the individuals Complainant pointed to that were "sitting down" on the job were not similarly situated because they had on-the-job injuries whereas Complainant did not. Id. at p. 7. The Agency contends that "it is undisputed that employees who have an on-the-job injury have rights under both the Collective Bargaining Agreement and the Federal Employees' Compensation Act..." Agency's Brief, p. 7. The Agency also contends that it stated a legitimate, nondiscriminatory reason for not providing Complainant with a light-duty position, and that Complainant did not point to any evidence of pretext. Id. at p. 9. These reasons were that Complainant was not entitled to light-duty work because she did not sustain an on-the-job injury and, furthermore, that there was no available work within Complainant's restrictions. Agency's Brief, p. 9. STANDARD OF REVIEW The AJ's legal and factual conclusions, and the Agency's final order adopting them, are reviewed 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 decision without a hearing, and the decision itself, will both be reviewed de novo). ANALYSIS AND FINDINGS I. Disparate Treatment Sex Discrimination in Violation of Title VII5 The issue on appeal is whether the AJ properly concluded that Complainant was not subjected to disparate treatment sex discrimination due to the Agency's contention that Complainant was denied light-duty work because none was available within her medical restrictions and that it was not legally obligated to accommodate Complainant because pregnancy is not an on-the-job injury. An AJ may issue a decision without a hearing, summary judgment, when he or she finds that there are no genuine issues of material fact. 29 C.F.R. § 1614.109(g); Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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. Anderson, 477 U.S. at 248. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Anderson, 477 U.S. at 255. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon determining that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). 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." § 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). An agency may then seek to justify its refusal to accommodate the complainant by relying on "legitimate, nondiscriminatory" reasons for denying her accommodation. Young, 575 U.S. at ___, 135 S. Ct. 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. The framework for analyzing a pregnancy discrimination denial of accommodation claim was solidified in Young while Complainant's case was pending; therefore, a hearing is appropriate for Complainant to have the opportunity to prove her complaint in light of Young. Particularly important to this framework is the fact that the Agency contended that it did not need to provide light-duty work to Complainant as it did for employees who sustained on-the-job injuries. See Agency Reply to Complainant's Response to Agency's Motion for a Decision without a Hearing (Agency's Reply). The existence of such a distinction, work-related versus non-work-related injury, does not absolve the Agency of liability under the Young framework. See Young, 575 U.S. at ___, 135 S. Ct. at 1341 (reversing grant of summary judgment in favor of UPS where lower court found that plaintiff did not establish a prima facie case because employees who fell within on-the-job injury or ADA categories were too different to qualify as "similarly situated comparators"). Complainant offered proof of the prima facie elements of her case. She demonstrated that she belongs to a protected class by virtue of being female, she sought accommodation by requesting light duty, and the Agency did not accommodate her, resulting in her having to take leave without pay. Complainant also pointed to four employees who were performing their jobs while seated. The Agency does not dispute that these employees were given seated positions; rather, it argues that it had no legal obligation to accommodate Complainant as it did those workers because pregnancy is not an on-the-job injury. See generally, Agency's Brief. Viewed in the light most favorable to Complainant at the summary judgment stage, there is a genuine dispute as to whether the Agency provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Complainant's.6 In further support of her prima facie case, Complainant pointed to another comparator, who was pregnant and provided with light duty as an accommodation two years prior. ROI, p. 18-19. The Agency argues that this employee was not a valid comparator because she was also in Complainant's protected class in being pregnant. Agency's Reply, p. 5. However, the fact that this employee was accommodated with light duty could serve to undercut the Agency's position that it could not accommodate Complainant's restrictions, particularly in the Dump N' Cull area, the very area in which the comparator allegedly was allowed to work with the same 15-pound lifting restriction. ROI, p. 17-19; see, e.g., Martin v. Winn-Dixie Louisiana, Inc., No. 3:13-CV-00682-JWD-SCR, 2015 WL 5611646 at *16 (M.D. La. Sept. 23, 2015) (reasoning that the employer previously providing other pregnant women with accommodations could count against it because this indicated that the pregnancy-related restrictions in question did not affect the performance of an essential job function). It calls into question the Agency's position that the lifting restrictions and breaks could not be granted. This is accompanied by the fact that at least one supervisor, S3, allowed Complainant to work with the restrictions Complainant presented, without any issues. ROI, p. 12. Finally, Complainant alleged that a manager made a comment that there were rumors that she was faking her pregnancy. Formal Complaint, ROI, p. 29. The Agency has proffered as a legitimate, nondiscriminatory, reason that it did not have an obligation to accommodate Complainant with light duty because she did not sustain an on-the-job injury and, further, that there were no light-duty positions in which to safely accommodate Complainant's request for 15-minute breaks each hour and her 15-pound lifting restriction. Agency's Brief, p. 9. The Agency will need to further articulate a justification for its stated policy of not having to accommodate pregnant workers while accommodating other categories of workers. Further, the AJ should facilitate developing the record to determine whether Complainant can show pretext by demonstrating that such a policy imposes a significant burden on pregnant workers, and that the Agency's legitimate, nondiscriminatory reason is not sufficiently strong to justify the burden imposed.7 Complainant has pointed to the fact that the Agency accommodates workers injured on the job and employees who are granted reasonable accommodations for disabilities, yet her request for light duty was denied. However, the record needs to be developed on this issue to determine whether the Agency's justifications to accommodate others but not a pregnant worker are sufficiently strong to avoid liability under Title VII. Finally, Complainant's allegation that S5 asked her about rumors regarding whether she was actually pregnant should be reinstated and analyzed under a framework of hostile work environment sex and race discrimination. The claim was sufficiently related to the denial of reasonable accommodation for pregnancy-related complications, which Complainant raised with the EEO counselor. 29 C.F.R. §1614.107(b) (an agency may dismiss a matter "that has not been brought to the attention of a Counselor," unless that matter is "like or related to a matter that has been brought to the attention of a Counselor"). In addition, this allegation should be analyzed to determine whether it presents evidence of a discriminatory motive by agency officials based on Complainant's pregnancy status. Therefore, a decision without a hearing was not appropriate because genuine issues of material fact remain as to whether the Agency provided more favorable treatment to some employees; further, the record needs more development for an analysis consistent with Young. II. Denial of Reasonable Accommodation in Violation of the Rehabilitation Act "A pregnant employee may be entitled to reasonable accommodation ... for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment." See Enforcement Guidance: Pregnancy Discrimination and Related Issues, at EEOM 626:20. In order to establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation, unless it can demonstrate that it would be an undue hardship to do so. 29 C.F.R. § 1630.9(a); see also, EEOC Compl. Man. (BNA), Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.000 at EEOM 902.151 (Oct. 17, 2002). The Agency seems to indicate that Complainant never requested reasonable accommodation, but only light-duty work. However, Complainant's request may be construed as a request for reasonable accommodation because she identified her exact medical restrictions and the accommodations she would need, such as a 15-minute break each hour. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, at EEOM 902.154 (a request for reasonable accommodation does not have to be in writing and does not have to use the magic words "reasonable accommodation"); see also, Triplett-Graham v. U.S. Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24, 2006) (employee need only inform agency that he or she needs adjustment or change at work for reason related to a medical condition); Enforcement Guidance: Pregnancy Discrimination and Related Issues, at EEOM 626:23 (indicating that employers should "[t]rain managers to recognize requests for reasonable accommodation and to respond promptly to all requests. Given the breadth of coverage for pregnancy-related impairments under the ADA, as amended, managers should treat requests for accommodation from pregnant workers as requests for accommodation under the ADA unless it is clear that no impairment exists."). It is not currently clear from the record whether Complainant is a qualified individual with a disability. However, the results of Complainant's request for accommodation seem to be a denial in that the Agency contended that minimum lifting restrictions were 20 to 30 pounds and that a request for 15-minute breaks each hour could not be accommodated. ROI, p. 15-16. There is no indication that these accommodations would have caused an undue hardship. Therefore, unless Complainant objects, the complaint should be amended to include a claim of denial of reasonable accommodation under the Rehabilitation Act. The AJ should facilitate development of the record on this issue. CONCLUSION After a careful review of the record, the Agency's FAD, fully implementing the AJ's decision on summary judgment that Complainant was not subject to sex or race discrimination, is VACATED. The complaint is REMANDED for a hearing to address Complainant's claim of sex and race discrimination and a hostile work environment under Title VII, and if Complainant agrees, denial of reasonable accommodation under the Rehabilitation Act. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit 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 (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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 (M0416) 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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 Complainants 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 7-19-2016 __________________ 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 The Commission considers the term "Hispanic" to denote a national origin rather than a race. However, the same analysis is applied to claims of race discrimination and national origin discrimination. 3 Complainant also alleged race and sex discrimination when, on October 24, 2011, the Manager of Distribution Operations (S5) asked her about rumors about her not being pregnant and compared Complainant to the celebrity Beyonce, whom people allegedly did not believe was really pregnant. ROI, p. 60. The Agency dismissed this claim for failure to state a claim because Complainant was not aggrieved by the statement. Further, the Agency determined that the statement was not sufficiently severe or pervasive to constitute a hostile work environment. ROI, p. 60. Finally, the Agency contends that the dismissal was appropriate because Complainant did not bring the particular comment to the attention of the EEO Counselor, and the comment does not clarify the original complaint nor might reasonably be expected to grow out of the original complaint. Id. 4 There is no requirement for a complainant to submit a brief in support their appeal. Our regulations only require that "the appellant should use EEOC Form 573, Notice of Appeal/Petition, and should indicate what is being appealed." 29 C.F.R. § 1614.403; see also, Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § IV.A (Aug. 5, 2015). Therefore, whether Complainant submitted a brief or statement is not dispositive of whether summary judgment was proper. 5 EEOC guidance also provides that complainants may pursue a "disparate impact" theory of discrimination because "Title VII is violated if a facially neutral policy has a disproportionate adverse effect on women affected by pregnancy, childbirth, or related medical conditions and the employer cannot show that the policy is job related for the position in question and consistent with business necessity." See EEOC Compl. Man. (BNA), Vol. 2, Sec. 626, Enforcement Guidance: Pregnancy Discrimination and Related Issues, No. 915.003, at EEOM 626:12 (June 25, 2015). 6 "For purposes of the prima facie case, the plaintiff does not need to point to an employee who is "similar in all but the protected ways. For example, the plaintiff could satisfy her prima facie burden by identifying an employee who was similar in his or her ability or inability to work due to an impairment (e.g., an employee with a lifting restriction) and who was provided an accommodation that the pregnant employee sought." Enforcement Guidance: Pregnancy Discrimination and Related Issues, at EEOM 626:13. The AJ should facilitate supplementing the record on this issue to determine whether non-pregnant employees, similar in their ability or inability to work, were provided with accommodations. 7 A complainant "can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers." Young, 575 U.S. at ___, 135 S. Ct. at 1354. A complainant can also point out that the fact that the Agency "has multiple policies that accommodate nonpregnant employees ... suggests that its reasons for failing to accommodate pregnant employees ... are not sufficiently strong." Id. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2013-1635 2 0120131635