U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elease S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120140731 Hearing No. 450-2013-00163X Agency No. 4G-752-0256-12 DECISION Complainant timely 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 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission VACATES the Agency's final order. ISSUE PRESENTED The issue presented is whether there are genuine issues of material fact that require a hearing on Complainant's claim that the Agency subjected her to disparate treatment and denied her reasonable accommodation because of her pregnancy. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Coit Post Office in Plano, Texas. Report of Investigation (ROI), at 18. Complainant's Position Description (PD) noted that her Letter Carrier position required her to deliver and collect mail on foot or by vehicle under varying road and weather conditions in a prescribed area, with the ability to carry mail weighing up to 35 pounds in a shoulder satchel and to load and unload containers weighing up to 70 pounds. Id. at 172-73. Complainant's supervisors included the Manager, Customer Services (Ms. VM), the then-Postmaster (Mr. JW), and the then-Acting Station Manager (Mr. AT).2 In letters dated July 7, 2012, to Mr. AT, Complainant requested light duty due to her pregnancy. Id. at 144-45. Complainant specifically noted that she was unable to fully perform her Letter Carrier job duties due to her pregnancy. Id. Thereafter, in a letter to the Agency dated July 11, 2012, Complainant's doctor wrote that Complainant was under her obstetrical care and that Complainant was unable to work outside due to extreme heat which could result in a miscarriage. Id. at 146. In another letter dated July 19, 2012, Complainant's doctor wrote: [Complainant] may work outdoors continuously in heat 95 degrees, but needs to be limited to no more than 4 hours when temperatures reach 95 degrees and higher. She will need to take precautions while working in the heat which includes staying hydrated, taking breaks when needed and refraining from lifting items over 15 pounds. Id. at 92. Complainant suggested light-duty accommodations for her pregnancy, including clerk duties that would entail answering phones and handling express mail. Management denied Complainant's request for any light-duty accommodation. Id. at 100. According to Ms. VM, Complainant was denied light duty because she was not injured on the job, and light-duty assignments are only reserved for employees injured on the job. Id. at 101. The Ms. VM believed that Complainant "used her pregnancy as an excuse for mistakes in her work." Id. at 104. Because her request for light duty was not granted, Complainant was forced to use a combination of leave without pay (LWOP), annual leave, and sick leave, as she was unable to fully perform her duties as a Letter Carrier due to her pregnancy. Complainant cites to at least seven different employees whom she believes were injured on the job and were provided with light duty. Id. at 14. On September 18, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female, pregnancy), color (black), and disability when, beginning on or about July 5, 2012, she was denied light duty. 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 June 14, 2013, motion for a decision without a hearing and issued a decision in the Agency's favor on September 26, 2013. The Agency subsequently issued a final order fully implementing the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the AJ found that Complainant failed to establish a prima facie case of discrimination because she did not identify any similarly-situated employees outside of her protected classes that were treated more favorably. In so finding, the AJ noted that some of the comparators identified by Complainant did not hold the same position as she, and that the employees who did were injured on the job while Complainant was not. The AJ noted that Complainant's pregnancy did not constitute an on-the-job injury, and therefore she did not establish a prima facie case of discrimination. The AJ further found that the Agency articulated legitimate nondiscriminatory reasons for its actions; namely, that there were no duties within Complainant's medical restrictions that could have accommodated her. CONTENTIONS ON APPEAL Complainant did not submit a brief in support of her appeal.3 The Agency requests that we affirm its final order, implementing the AJ's decision. 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's decision without a hearing was not appropriate because there are material facts in dispute, and the record is not adequately developed, as discussed below. Disparate Treatment Sex Discrimination in Violation of Title VII 4 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 Ms. VM averred that Complainant was denied light duty because she was not injured on the job, and that light duty assignments are only for employees injured on the job.5 ROI, at 101. 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"). We find that Complainant has offered proof of a prima facie case here. She demonstrated that she belongs to a protected class by virtue of being a pregnant female, she sought accommodation by requesting light duty, and the Agency does not dispute that it did not accommodate her with light duty, resulting in her taking a combination of LWOP, sick leave, and annual leave. The record also shows that at least four Letter Carriers injured on the job were given light-duty assignments. The Agency does not dispute that these Letter Carriers were given light-duty assignments; 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. To the contrary, how or where the employee's limitation arose is irrelevant under the PDA and Young. The only relevant comparison is whether the pregnant worker and nonpregnant worker are similar in their ability or inability to work. Young, 575 U.S. at ___, 135 S. Ct. at 1347-48. 1355. Moreover, this inquiry is satisfied if the employer has a practice or policy that indicates some class of workers are entitled to accommodations, like light duty, when pregnant workers are not provided such a benefit and are similar in their ability or inability to work. Viewed in the light most favorable to Complainant, we find 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 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 available that could have accommodated her. 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 Letter Carriers and other employees injured on the job, yet her request for light duty was denied. 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. An employer's statement, policy, or practice that it will accommodate those injured on the job with light duty, but not those with medical restrictions arising from pregnancy, must be examined further as possible pretext for discrimination. Narrow accommodation policies that exclude employees who need accommodation because of pregnancy may constitute disparate impact discrimination, as well as disparate treatment discrimination. 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 further development for an analysis consistent with Young. Denial of Reasonable Accommodation in Violation of the Rehabilitation Act We note that the Agency argues that pregnancy does not render one an individual with a disability under the Rehabilitation Act. However, "[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 (Pregnancy Discrimination Guidance), 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) (Reasonable Accommodation Guidance). We find that 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 refraining from lifting items over 15 pounds. See Pregnancy Discrimination Guidance, at EEOM 626:23 (indicating that employers should "[t]rain managers to recognize requests for reasonable accommodation and to respond promptly to all requests ... 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"). We find that the record is not fully developed as to whether Complainant is a qualified individual with a disability. The PD for Complainant's position notes that Letter Carriers must carry mail weighing up to 35 pounds in a shoulder satchel and load and unload containers weighing up to 70 pounds. However, Complainant's doctor restricted Complainant to lifting only 15 pounds, among other things. Therefore, Complainant requested to be assigned to clerk duties wherein she could perform mostly sedentary duties. We note that when a complainant cannot be accommodated in her current position, an agency must consider reassigning her to a vacant position in terms of pay, status, and other related factors, including benefits, if the she is qualified for the position. See Reasonable Accommodation Guidance. Here, the Agency simply asserts that there were no available positions/duties within Complainant's restrictions to which she could have been reassigned. However, the Agency has provided no evidence that it conducted an agency-wide search for vacant, funded positions that Complainant could perform with or without reasonable accommodation. See, e.g., Bill A. v. Dep't of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016) (agency has the obligation to conduct an agency-wide search for vacant, funded positions that complainant could perform). We note also that Complainant, in her formal complaint, checked disability as a basis in alleging that she was subjected to discrimination based on her pregnancy. However, the AJ did not address disability as one of Complainant's alleged bases. Therefore, unless Complainant objects, we find that Complainant's complaint encompasses 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 final order, fully implementing the AJ's decision on summary judgment that Complainant was not subject to race/color and sex discrimination, is VACATED. The complaint is REMANDED for a hearing to address Complainant's claim of sex discrimination 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 of the EEOC Dallas District Office within fifteen (15) calendar days of the date this decision is issued. 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 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 12-27-2017 __________________ 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 EEO Investigator attempted to contact both the Mr. JW and Mr. AT, requesting their affidavits for the instant investigation. However, according to the Agency, both men had retired by the time of the investigation. 3 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. 4 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). 5 We note that the Agency has traditionally denominated "light duty" as an assignment which may be offered to an employee whose restrictions are not related to an on-the-job injury or illness, and "limited duty" as an assignment that must be offered to an employee whose restrictions are related to an on-the-job injury or illness, but who retains some ability to work. See, e.g., Wood v. U.S. Postal Serv., EEOC Appeal No. 01A46073 (May 5, 2006). It is unclear why, in this instance, Ms. VM refers to "light duty" as available only to employees injured on the job. 6 For purposes of the prima facie case, a complainant does not need to point to an employee who is "similar in all but the protected ways. For example, a complainant 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. 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." 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