U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Minnie M.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140003 Hearing No. 440-2012-00145X Agency No. 200J-0005-2011103713 DECISION Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Department of Veterans Affairs (Agency) 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. ISSUES PRESENTED The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing; (2) whether the AJ properly found that the Agency accommodated Complainant's needs as nursing mother by providing her with a suitable place to pump breast milk; and (3) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination based on her protected classes. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Informational Technology (IT) Specialist, GS-11, at the Agency's National Service Desk (NSD) in Hines, Illinois. Report of Investigation (ROI), at 31. Complainant was supervised by her first-level supervisor (S1), her second-level supervisor (S2), and the Director. After the birth of her first child in 2009, Complainant complained that management failed to provide her adequate breastfeeding accommodations in the form of an appropriate lactation room from September 4, 2009, through June 16, 2010. Apparently, in response to this, in a memorandum dated June 17, 2010, management created a lactation room program to accommodate nursing mothers. Id. at 254. The Agency's memorandum specifically designated office 147T for nursing mothers to breast pump. Id. The memorandum outlined that Complainant would be the point of contact responsible for cleaning, scheduling, and reporting problems about the designated lactation room. Id. 2 The designated office 147T contained a desk and had a locking door. Complainant thereafter gave birth to her second child and again went out on maternity leave. On May 8, 2011, when Complainant returned to work from her second maternity leave, she found that management had changed the designated mother's room to the storage room 147K. Id. at 132. Complainant indicated that she had not been kept apprised of any changes related to the lactation room even though she had been designated as the point of contact in the June 17, 2010, memorandum. Id. at 32. The storage room 147K contained several paint cans that had once been opened, old computer equipment, and tools possibly related to painting. Id. at 37-48. Complainant averred that she immediately informed S1 and S2 that the room was not appropriate for the needs of a nursing mother. Id. at 32. Complainant averred that no accommodations were made and she had no choice but to pump breast milk in the storage room despite the conditions of it. Complainant had been unable to pump breast milk in her own office space because she worked in a cubicle without a door. Complainant also indicated that that an employee told her that management said it was a "waste of office space" to dedicate office 147T for a nursing mother's room, and that the office was needed for new employees. Id. Nevertheless, according to Complainant, office 147T had been vacant for three years, and apparently still was vacant at the time she was made to use the storage room to pump breast milk. Id. Complainant thereafter requested that the paint cans be removed, among other things. Although the paint cans were removed, Complainant was still worried that the room was affected by chemicals from the once-opened paint cans that had been stored in the room for many months. Id. at 127. Also, on June 9, 2011, ants apparently began infesting the storage room and got into her breast pump equipment. Id. at 32. Complainant additionally averred that S2 previously had provided a Caucasian female mother with an office space to pump breast milk. Complainant indicated that management made special arrangements to have an employee vacate his/her office for the Caucasian mother whenever she needed to use the breast pump. According to S2, Complainant was, for her first child, previously allowed to use the breast pump in an office, but a decision was made to change the policy after the birth of her second child. ROI, at 156-57. Complainant also reported that after she returned from maternity leave, a coworker reportedly told her, "I thought management fired you, because I'm really surprised to see you back." Id. at 128. On May 10, 2011, coworkers also reportedly divulged to Complainant that management had been discussing her EEO activity while she had been out on maternity leave. According to Complainant, one coworker (C1) overheard the Service Line Manager say that there would be "repercussions" for any employee who assisted in her EEO claims. Id. However, this coworker averred that, although she overheard management discuss Complainant's EEO activity, she did not hear the Service Line Manager say there would be "repercussions" for any employee who supported Complainant's EEO activity. On September 20, 2011, Complainant was informed that three Caucasian women could stay and remain on the Professional Services Team (PST) of the Network and Security Operations Center (NSOC). Id. at 34. Complainant had previously worked on the PST from November 2009 through October 2010 with the three Caucasian women in addition to approximately 16 other employees (male Caucasian, Asian, and African-American). Id. Management made the decision in October 2010 to reassign Complainant and the other 16 employees on the PST to the National Service Desk (NSD). Id. The three Caucasian women were the only employees who could stay on the PST. Id. Although Complainant remained at the same pay grade, she nevertheless felt that her reassignment was a demotion. Id. Complainant felt that she had more seniority, education, and experience than the three Caucasian women selected to remain on the PST. Id. Complainant also felt that her reassignment away from the PST made her less marketable and diminished her skill set. Id. at 139. On June 15, 2011, Complainant contacted an EEO Counselor and on September 26, 2011, filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity (prior EEO complaint) when: 1. As of May 8, 2011, management failed to update their Nursing Mother Program policy to reflect a designated room change. 2. On May 9, 2011, a coworker stated to her that he heard she had been fired. 3. On May 10, 2011, she learned that her coworkers and management were discussing her EEO activities. 4. On May 10, 2011, she heard that management was purposely missing a deadline so that she would not keep her job as an "erroneous hire." 5. On May 15, 2011, her breastfeeding activities were disclosed to coworkers without her permission and without a need to know. 6. On June 9, 2011, her breastfeeding items were infested with ants. 7. On June 15, 2011, management failed to provide a reasonable accommodation. 8. On June 15, 2011, she was assigned a cubicle on the left side of the office, which is race-based because only darker skinned individuals were assigned seating in this area. 9. On September 8, 2011, she learned that S2 gave a more favorable recommendation to a coworker who was competing against her for a new position. 10. On September 8, 2011, S2 provided negative information regarding her to prospective employers. 11. On September 8, 2011, she was informed by a source that due to her "erroneous hire" status, Human Resource Management forced hiring authorities to rescind positions, letting them expire so that she would not be selected. 12. On September 20, 2011, she learned that three Caucasian women were allowed to remain on the Professional Services Team (PST) although she had been removed from the team in May 2011. 13. On October 15, 2011, Human Resource Management withheld paperwork, and consequently she was not promoted to the GS-13 grade level. 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 January 15, 2013, motion for a decision without a hearing and issued a decision without a hearing in the Agency's favor on July 15, 2013. The Agency subsequently issued a final order implementing the AJ's finding that Complainant did not prove that the Agency subjected her to the alleged discrimination. The AJ initially addressed claims 7, 12, and 13 as timely discrete claims of discrimination, and addressed the remaining claims as comprising a hostile work environment. In addressing claim 7, the AJ noted that Complainant argued that the Agency failed to accommodate her when it changed the designated lactation room without informing her and without updating its policy. The AJ noted that Complainant alleged that the new room was inadequate because it contained paint cans and that other employees had keys to the room. After viewing pictures of the storage room, the AJ noted that it looked neat and carpeted with a refrigerator and chairs. The AJ indicated that although the storage room showed paint cans that were open and then closed again, Complainant conceded they were removed from the room at her request. The AJ further indicated that Complainant was able to lock the door and put an "occupied" sign on the door, and did not argue that others entered the room while she was using it. The AJ also indicated that Agency witnesses offered evidence that they did not learn that ants got into her breastfeeding equipment until mediation of the claims herein. The AJ therefore found that the Agency accommodated Complainant's needs as nursing mother, noting that the Agency complied with its June 17, 2010, Nursing Mother's Program memorandum. The AJ also found that Agency complied with the Office of Personnel Management's (OPM's) December 22, 2010, "Memorandum for Heads of Executive Departments and Agencies Re: Nursing Mothers in Federal Employment." The AJ noted that OPM's memorandum stated that an agency need not create a permanent dedicated space, but may temporarily convert other space into a nursing activities area. Regarding claim 12, the AJ found that the three Caucasian women were allowed to remain on the Professional Service Team because of their experience working with the Integrated Operations Center. The AJ indicated that this assignment did not result in any favorable change in pay or promotion opportunities, and employees outside of Complainant's protected classes, like Complainant, were also moved from the PST to the NSD. The AJ also found that Complainant's allegation that only dark skinned employees were assigned to the left side of the office was not supported by the record, as there were Caucasian males assigned to Complainant's side of the room. The AJ also noted that Complainant conceded that her supervisors submitted the paperwork for her GS-13 promotion in a timely and proper fashion. As to Complainant's allegations of harassment, the AJ noted that Complainant did not offer sufficient evidence to establish that the alleged incidents were based on her protected classes as alleged. The AJ further found that the Agency's alleged actions were not severe and pervasive enough to establish a hostile work environment. The AJ further referenced Complainant's assertion that in April 2011, a coworker (C1) and others overheard the Service Line Manager and S2 discussing her EEO claims, and that the Service Line Manger allegedly stated that there would be "repercussions" for any employee who assisted Complainant with her EEO claims. The AJ noted, however, that other coworkers denied hearing such a discussion. The AJ further indicated that, although C1 averred that she did in fact overhear a conversation about Complainant's EEO activity, C1 averred that neither the Service Line Manager nor S2 stated that there would be repercussions for any employee who supported Complainant's EEO claims. The AJ indicated that the fact that one manager acknowledged to another manager that Complainant had filed multiple EEO claims does not, in itself, suggest that the Agency moved Complainant to the NSD or delayed Complainant's promotion to GS-13 on account of her EEO activity. The AJ therefore found that Complainant did not establish that she was subjected to discrimination as alleged. CONTENTIONS ON APPEAL Complainant's Brief On appeal, Complainant, through her representative, asserts that before her maternity leave in 2011, the Agency designated an empty office (147T) as the space for nursing activities. Complainant maintains that a Caucasian female was at that time allowed to use this office space for nursing. Complainant indicates that upon her return from maternity leave, the Agency changed the designated nursing area from an office space to a storage room (147K) that contained paint cans. Complainant felt that the lactation room had been changed specifically after she requested a room to express milk. Complainant contends that the Director was the responsible management official who she cited in her previous EEO complaint, and he was the official herein who made the unannounced change placing her in the storage room. Complainant maintains that she was made to nurse in the unsanitary storage room due to discrimination. With regard to claim 12, Complainant contends that, because of her EEO activity, she was chosen to be among those reassigned from the PST to the NSD. Complainant asserts that the PST is a position that promotes growth and opportunity. Complainant lastly maintains that three Caucasian female employees who remained on the PST had less seniority and experience than her. Complainant further argues that she proved that minority coworkers were segregated from Caucasian employees, and that she submitted seating charts, e-mails, and pictures showing as such. Complainant also says that other minority employees were harassed by coworkers, of which management was certainly aware. Complainant additionally maintains that she proved that the Director would not allow her to be promoted due to her prior protected EEO activity. Complainant also maintains that the AJ erroneously found that she was not subjected to a hostile work environment as alleged with regard to claims 1 through 13. Agency's Response In response, the Agency contends that Complainant does not raise any arguments on appeal except those that were already considered by the AJ. The Agency maintains that the AJ already considered Complainant's opinion that the storage room was not suitable, including Complainant's belief that the paint cans were dangerous to her baby's health. The Agency indicates that the AJ viewed the photos of the storage room, which were submitted by Complainant for the record. The Agency additionally argues that Complainant's allegations surrounding her removal from the PST were also already considered by the AJ. The Agency also contends that at the AJ's request, it obtained C1's affidavit. Therein, according to the Agency, C1 attested that although she overheard two managers discussing Complainant's EEO activity, there was no discussion by the managers of any repercussions on employees who helped in Complainant's EEO activity. Lastly, the Agency argues that Complainant did not establish events there were severe or pervasive enough to rise to the level of a hostile work environment. The Agency therefore requests that we affirm the AJ's decision without a hearing in its favor. ANALYSIS AND FINDINGS AJ's issuance of a Decision without a Hearing 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. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing 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 parry opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (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 [p]arty 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 a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). 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 (Feb. 24, 1995). "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 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). 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 Ch. 7, § 1.; see also 29 C.F.R. § 1614.109(e). In the instant case, we find that the AJ erred in issuing a decision without a hearing because there are material facts in dispute, the credibility of witnesses is at issue, and the record is not adequately developed, as discussed below. Accommodation for Complainant's Pregnancy-Related Condition 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. 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 1354.3 In the instant case, we find there are genuine issues of material fact as to whether Complainant established prongs 3 and 4 of a prima facie case of discrimination for the denial of an accommodation for a pregnancy related condition. Specifically, with respect to prong 3, we note that the AJ found that the storage room 147K accommodated Complainant's needs as a nursing mother. The AJ specifically noted that the storage room looked neat and carpeted with a refrigerator and chairs. The AJ indicated that although the storage room showed paint cans that were open and then closed again, Complainant conceded the cans were removed at her request. Notwithstanding the AJ's findings, we find that the pictures of the storage room contained in the record raise genuine issues of material fact that can only be resolved through a hearing. Specifically, while the pictures do show that the room contained carpeting with a chair and a refrigerator, the room does also show that it contained large industrial sized paint cans, which had been opened at one point. ROI, 37-48. Although the cans may have been removed at Complainant's request, it is unclear if the room contained an odor or fumes from the length of time the cans had been in there. The storage room also purportedly shows old painting equipment along with more cans stacked in the corner in an unorganized manner. Id. In addition, the pictures further purportedly show ants in the storage room infesting Complainant's breast pump equipment. Id. Although the AJ indicates that Complainant never complained about the ants until mediation, there is no dispute that Complainant informed management that the room was unsanitary to begin with. In addition, regarding prong 4, we note that Complainant averred that management made special arrangements to have an employee vacate his/her office for a Caucasian mother whenever she needed to use a breast pump. We also note the record is devoid of evidence as to whether the Agency accommodates other employees for medical conditions that require accommodation. As such, we find there are genuine issues of material fact with respect to prongs 3 and 4, and that the record needs to be further developed. We further find that there is a genuine issue of material fact as to whether there was other office space available at the time that would have accommodated Complainant, which would have established that the Agency's reasons were pretextual. We note that, for the record, Complainant submitted a picture of a vacant office, room 147T, which had been previously designated as the lactation room in the Agency's June 17, 2010, memorandum. According to Complainant, room 147T had been empty for three years and was vacant and still available at the time she was made to use her breast pump in the storage room. Id. at 49. We note that Complainant averred that she had been informed that management said it was a "waste of office space" to designate room 147T as a mother's room. We note that S2 averred that the lactation room was changed to the storage room so that mothers would have more privacy because the storage room had no windows and a lockable door. Id. at 156-57. However, the picture of room 147T in the record apparently shows that it had a lockable door with no windows. Id. at 49. Also, as noted above, Complainant averred that management made special arrangements to have an employee vacate his/her office for a Caucasian mother whenever she needed to use a breast pump. Based on S2's dubious and unspecified reasons for changing the designated lactation room, we find that his credibility, along with other management officials, must be assessed through a live hearing. We find that there are too many unresolved issues on 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 pretext for discrimination. Therefore, judgment as a matter of law for the Agency should not have been granted 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"). Reprisal In the absence of direct evidence for a claim of reprisal discrimination, a complainant must satisfy the three-part evidentiary framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Joy Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F.Supp. 318, 321 (D. Mass. 1976) (applying McDonnell Douglas scheme to discrimination in reprisal). A complainant may establish a prima facie case of reprisal discrimination by showing that: 1) she engaged in protected activity; 2) the agency was aware of the protected activity; 3) she was subjected to adverse treatment by the Agency; and 4) a nexus existed between the protected activity and the adverse action. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340, (Sep. 25, 2000). Here, we find that Complainant established a prima facie case of discrimination based on reprisal with respect to claims 1, 3, 5, and 7. We note that, as the AJ indicated, a coworker averred that she heard management discussing Complainant's prior EEO complaint. Regarding the third prong of a prima facie case of reprisal, under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. EEOC Compliance Manual Section 8, "Retaliation" No. 915.003 at p 8-13 (May 20, 1998). See also Whitmire, EEOC Appeal No. 01A00340. We find that the Agency's action in changing its nursing policy, thereby making Complainant breast pump in the storage room 147K to "reasonably likely to deter protected activity." Finally, with regard to the fourth prong, we find that a nexus exists between Complainant's EEO activity and claims 1, 3, 5, and 7. We note that management changed the designated mother's lactation room to the storage room after Complainant came back from maternity leave, and the EEO process was still ongoing with respect to Complainant's previous complaint. Therefore, we find that Complainant has established a prima facie case of discrimination based on reprisal. We also find that the AJ erred in issuing a decision without a hearing because there are genuine issues of material fact in dispute with respect to whether Complainant established pretext based on reprisal when her accommodation for her pregnancy-related condition was withdrawn. Specifically, we note that Complainant alleged that she experienced similar troubles obtaining a sufficient lactation room after the birth of her first child from September 4, 2009, through June 16, 2010. This allegation was the subject of Complainant's previous EEO complaint addressed in Appeal No. 0120120682. In response to Complainant's alleged troubles finding a suitable office location to breast pump for her first child, in the memorandum dated June 17, 2010, management created a lactation room program to accommodate nursing mothers. ROI, at 36. In the memorandum, management designated Complainant as the point of contact and designated office 147T as the lactation room. Id. However, after management became aware of the birth of Complainant's second child and that she had engaged in the referenced EEO activity, they allegedly retracted the June 17, 2010, memorandum without Complainant's knowledge even though she had been named as the point of contact. As noted above, according to Complainant, office 147T was still vacant at the time she was made to use a breast pump in the storage room, and that another nursing mother was allowed to use an office instead of the subject storage room. We additionally note that C1 averred that she overheard management discussing Complainant's EEO activity. As such, we find that there are unresolved questions of material fact here as to whether the Agency's retraction of its nursing mother's policy was based on reprisal discrimination and, further, whether management openly discussed Complainant's EEO activity. Claim 12 We also find that Complainant established a prima face case of race discrimination with regard to claim 12. In order to establish a prima facie case of race 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 (Sep. 26, 2002). Complainant, as noted above, listed her race as African-American. Also, the record reflects that three employees outside of Complainant's protected class (Caucasian) were selected to remain on the PST, while Complainant and other employees were not. Although the AJ indicated that this assignment did not result in any favorable change in pay or promotion opportunities, the record reflects that working on the PST was considered a more prestigious position than the assignment to the NSD. Consequently, we find that Complainant was subjected to adverse treatment when she was reassigned to the NSD. See Champion v. Dep't of Defense, EEOC Appeal No. 01984284 (June 2, 1999) (complainant's allegations concerning not getting a reassignment constituted an adverse action, affecting the terms and conditions of his employment, even though the reassignment would have resulted in no change in pay grade). In articulating its legitimate, nondiscriminatory reason, the Associate Director explained that the Agency needed to keep some personnel within the PST of the Network and Security Operations Center (NSOC). ROI, at 244. The Associate Director specifically explained that "we have reached our ceiling for positions within NSOC and we do not have any positions to put out for competition at this time other than the ones you have seen posted." Id. Upon review, we find that the AJ erred in issuing a decision without a hearing with regard to claim 12 also. Specifically, there are genuine issues of material fact in dispute with respect to whether Complainant established pretext based on race when she was reassigned away from the PST. In so finding, we note that S1 specifically averred that he did not agree with the Agency's actions in keeping the three Caucasian women on the PST. In an e-mail to the Associate Director dated September 15, 2011, S1 wrote: I just think that this arrangement is a bad idea, [and] is not fair to the other 16 who do not have the opportunity to stay within the NSOC. This also creates a poor atmosphere for all the NSOC because of the feeling that there is a "caste system" with an "in" crowd and an "out" crowd. Fair competition for jobs is where we should be if we truly want that world class organization, not picking and choosing without competition. When I was given this staff, I heard about all the problems. .... My recommendation is that all should go to NSD, or none should go. Id. at 244. We note that the 16 employees not chosen included African-American and Asian employees. Further, the record reflects that one of the chosen Caucasian women was only a GS-9, while Complainant was GS-11. Id. at 245. We therefore find that there are genuine issues of material fact in dispute with respect to whether Complainant established pretext based on race with regard to claim 12. In sum, the Commission finds that there are significant unresolved issues surrounding claim 12, in addition to the claims mentioned above, which should have precluded a decision without a hearing. We also find that the record needs to be further developed as discussed above. Therefore, we find that judgment as a matter of law was not appropriate here. We note that Complainant's complaint encompasses an alleged hostile work environment. As such, in order to avoid fragmentation of Complainant's complaint, we remand the whole matter to the Agency for processing in accordance with the order below. CONCLUSION Accordingly, we VACATE the Agency's final order and REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency shall submit to the Hearings Unit of the EEOC Chicago District Office a request for a hearing, within 15 calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within 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 issue a decision on Complainant's claims 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 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 03/20/18 __________________ 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 Complainant previously filed an EEO complaint dated July 8, 2010. Therein, Complainant alleged that the Agency failed to, among other things, provide her adequate accommodations surrounding the birth of her first child. Complainant specifically alleged that management failed to provide her adequate breastfeeding accommodations in the form of an appropriate lactation room from September 4, 2009, through June 16, 2010. In EEOC Appeal No. 0120120682 (August 28, 2015), we found that Complainant was provided adequate accommodations for expressing milk, noting in part that management developed a facility policy which provided accommodation for nursing mothers. 3 We note that the framework for analyzing a pregnancy discrimination denial of accommodation claim was solidified in Young after the AJ issued her Decision without a hearing, finding no discrimination. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140003 14 0120140003