U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxane C.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 0120142863 Hearing No. 570-2012-00494X Agency No. DIA201100033 DECISION Complainant timely filed an appeal from the Agency's June 30, 2014, 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. 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 AFFIRMS in part and REVERSES in part the Agency's FAD, which fully implemented an EEOC Administrative Judge's (AJ's) finding of no discrimination. ISSUES PRESENTED 1. Did the AJ properly issue a decision without a hearing? 2. Did Complainant prove by a preponderance of the evidence that she was subjected to sex discrimination (female/pregnancy) and reprisal? BACKGROUND Complainant worked as a Regional Desk Officer at the Office of Controlled Operations, Middle East/Africa Division, in Washington, D.C. The management officials involved with this complaint are 1) the Division Chief (S1); 2) the Chief of Training Management at the Joint Military Attaché School (JMAS) (S2); 3) the Deputy Division Chief (S3)2; and 4) the Chief, Office of Field Operations (S4); Deputy, DXA (S5). Report of Investigation (ROI), p. 5-6, 598. Complainant was selected for a position as a Defense Liaison Officer in Country X.3 ROI, p. 5. Prior to reporting to her assignment, she needed to complete the requisite JMAS training. Id.; see also, ROI, p. 585. Complainant was scheduled to attend the JMAS training from April 29 to July 29, 2011. ROI, p. 432. The Agency contended that this 14-week training had to be completed all at once, apparently to preserve "team camaraderie."4 ROI, p. 586. On February 22, 2011, Complainant informed the Chief of Training Management, S2, that she was pregnant and expected to deliver "within a couple of days of the final graduation exercise."5 AJ Decision, p. 3 (citing, ROI p. 504). S1 became aware that Complainant was pregnant around February 2011.6 ROI, p. 629. S1 spoke with Complainant during a meeting, and verified the information "in the late February, early March." ROI, p. 631. S3 became aware of Complainant's pregnancy in January 2011, when Complainant personally informed him because he had been the selecting official for her new position. ROI, p. 593. S4 testified that he became aware that Complainant was pregnant approximately three weeks before the start of the April 29, 2011 training. ROI, p. 4. During a meeting with S2, which occurred on February 22, 2011, Complainant was alerted that attending the April training would be an issue due to her pregnancy. ROI, p. 503-504. S2, who was in charge of building rosters for the JMAS classes, initially placed Complainant's name on the April 2011 roster, as per the instructions of "upstairs," because they had approved her to attend the required JMAS training in order to commence her Country X assignment. ROI, p. 535-36. S2 testified that, upon being informed by Complainant of her pregnancy, he acknowledged that Complainant's pregnancy might be a problem because "the training is very physical in nature." ROI, p. 504. S2 testified that he was particularly concerned with the "defensive driving" portion of the training and the fact that the "training involves physical contact between the instructors and the students and that was my first concern because the issue of pregnancy and a person being physically hit was a concern." ROI, p. 505 (emphasis added). S2 also added that the final five days of the training corresponded closely to Complainant's delivery date and "that part of the training involves confrontations and detentions ... so that was another concern about the physical safety...that was my primary concern." ROI, p. 506 (emphasis added). At that time, Complainant did not present any medical documentation to S2 disclosing any medical restrictions. ROI, p. 511-512.7 S2 still suggested that Complainant wait to take the training course until the next offering in August 2011. ROI, p. 7. Upon being presented with the August option, Complainant did not want to attend the August training and stated that it was "not an option." ROI, p. 509. According to S2, Complainant then presented her own options during "brainstorming" about how she could complete the April 2011 course,8 but he believed those options were not feasible; therefore, he suggested that "the real option, the best option is to attend the August class." ROI, p. 539, 524.9 S2 subsequently presented Complainant's suggestions to upper management, specifically S4 and S5, via e-mail, and these officials responded that they did not endorse any of those suggestions and that "no, that's not a plan, that's not a way ahead." ROI, p. 518. S2 testified, "They said move her to the next class or something. I don't recall. Again, my e-mail box was deleted.... And I don't recall if it said move her to the next class or take her out or whatever but at that point in time, that's essentially what I did." ROI, p. 526. In later testimony, S2 stated: "Well they didn't say move her to August. They said she is not going to be attending this class, the April class. And whenever somebody does that, I move that name to the next class as a placeholder. That's just what I did." ROI, p. 539.10 Other management officials became involved around the same time period in late February, early March 2011. See, e.g., ROI, p. 631. S1 testified that he heard Complainant was pregnant and wanted to confirm, specifically during a late February - early March, meeting with her because there were potentially "violent" portions of the training: At the time, when a woman would be in the late stages of pregnancy, you don't want to shortchange the training for something that could later be exceedingly beneficial to the individual. You would want them to get the full benefit of the training. But you don't want to cause harm and there would be potential, because of the pregnancy, to do that. So my concern - I don't recall having said that but perhaps in so many words, I was voicing that I was concerned for her and her child and also the liability of the agency if she was to go and, in the course of training, something unfortunate happened. I would think that the agency, no matter what waivers she might have signed, would still be liable for having put her in a situation where she might have gotten hurt or hurt her child." ROI, p. 643-44. S1 also observed that "centers of balance change" during pregnancy, and it is not always easy doing things such as "walking upstairs." ROI, p. 643. S1 stated that Complainant presented alternative options for her to attend, which involved breaking up the course. ROI, p. 641. S1 explained that, while he did not know it at the time of the meeting, his later conversation with S4 made it clear that Complainant would not be able to attend the course if she could not complete the whole course in its entirety because it "puts the whole team at a disadvantage" if an individual begins the training and completes it in a later course. ROI, p. 642. S3 testified that Complainant went to see him around the same time period in late February 2011. ROI, p. 596. Complainant informed him that she was pregnant and that her due date fell within the last few weeks of the training. ROI, p. 596. S3 explained that Complainant believed that there might be a problem with her being able to attend, but that "she would be willing to sign a waiver and basically negating the government of all responsibility," and also offered three alternative suggestions, which included finishing the final portion of the course after her due date. ROI, p. 596. S3 contacted S1 about the situation, and they both contacted S2, asking about the suggestions Complainant made and whether he would be willing to approve. ROI, p. 597. S3 stated that S2 almost immediately reached out to S4, and a meeting was called to discuss the issue. ROI, p. 598. S3 recalled S4 stating that individuals need to complete the entire training at once, and that "we can't pull somebody out of the course mid-stride." ROI, p. 598. S3 also recalled management stating that "they won't be willing to accept her waiving responsibility for the government on it because, you know, there are physical risks of going through the course." ROI, p. 599. According to S3, there were concerns about "high-speed driving that would pose a risk if someone is expecting and couldn't be belted in ... and aspects of hostage" training that would constitute an increased risk. Id. S3 concluded, "[S]o they said for that reason, we couldn't do it ... what we had discussed was we'll just postpone everything six months ... that we would just wait until the August class." Id. A few days later, in early March 2011, Complainant again went to meet with S3, and they convened with S1. ROI, p. 600. The supervisors told Complainant she would not be able to attend the training due to "the physical risk" and "I won't say unfairness but the ability to split somebody's training." Id. S3 recalled that he informed Complainant that they were not pulling her from the JMAS training, just postponing it until after she had her baby. ROI, p. 601, 606. S3 speculated that, due to the nature of the training, Complainant would have been exposed to an "unacceptable physical risk." ROI, p. 606. This meeting was captured in S1's subsequent memorandum, which elaborates on S1's concerns about the degree of physical activity required by the course, the health and safety of Complainant and her child, and potential liability for the Agency. ROI, p. 86. S4 testified that he became aware that Complainant was pregnant through her supervisors, who presented to him that Complainant was "requesting accommodation" to complete the April training. ROI, p. 563. S4 indicated that he instructed that Complainant be placed in the August training because he wanted her to complete the entire training at once with the same team mates. ROI, p. 564-565. According to S4, Complainant had stated that she could not complete the entire course that started in April. ROI, p. 564.11 On March 3, 2011, after Complainant's name was removed from the April training roster, Complainant confronted S2 regarding why her name was removed, and Complainant told him that the safety of her baby was not management's concern. ROI, p. 533. S2 testified that he responded, "The organization has a responsibility to provide a safe work environment for you and everybody else." ROI, p. 533. Complainant submitted an official request for reasonable accommodation on March 2, 2011, to allow her to attend the April training. AJ Decision, p. 3. Complainant stated that she had no desire to submit the reasonable accommodation request, and apparently only did so in hopes that management would allow her to take the April 2011 training. ROI, p. 429-30, 433. As part of that request, Complainant indicated that she would not be able to complete the last two weeks of the course, which would delay her graduation from the course. AJ Decision, p. 3. Complainant suggested the alternative of completing the final exercise in December 2011, rather than having to miss the entire April 2011 class and delaying her Country X assignment. Request for Reasonable Accommodation, ROI, p. 110. The request for accommodation was denied on grounds that Complainant was not a qualified individual with a disability, because Complainant's medical notes did not reveal that she was experiencing any complications with her pregnancy. ROI, p. 6. On May 2, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and perceived/actual disability (pregnancy/child birth), and subjected her to harassment under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when: 1. On February 22, 2011, the Program Manager rejected three alternative suggestions Complainant offered that would allow her to complete the last two weeks of training for the JMAS course that was scheduled to begin on April 29, 2011 and end July 29, 2011; 2. On February 29, 2011, Complainant was informed that she would not be allowed to attend the scheduled training class "due to her condition." She was told, "We just don't feel comfortable with someone in your condition going through this training"; 3. On March 3, 2011, the Assistant Program Manager told Complainant that her pregnancy was a liability that prevented her from attending the training; 4. On March 15, 2011, Complainant was approached by several persons who congratulated her that she had reached a settlement agreement and had been placed in the August 2011 training class; 12 5. On March 14, 2011, Complainant's request for reasonable accommodation was denied. Complainant also alleged that that the Agency discriminated against her on the bases of perceived/actual disability and retaliation for prior EEO activity when: 6. On August 22, 2011, Complainant's first day back to work after returning from maternity leave, she was directed to report to another office and denied her admission into the JMAS training course beginning in late August 2011. Complainant did not attend the April training, and took sick leave for maternity purposes. ROI, p. 6. S2 stated that he placed Complainant's name on the August roster after she was removed from the April roster; however, upper management (or DFX) sent a follow-up roster with the names of the individuals to be placed in the August course, and Complainant's name was not on that list. ROI, p. 529. S2 conferred with management, mainly regarding that Complainant's "name was not on the list" and "They said, 'Yeah, roger that.'" ROI, p. 530. S2 did not recall who he spoke to on the DFX staff regarding Complainant's placement in the August 2011 training. Id. The Agency did not provide an explanation as to why Complainant's name did not appear on the August 2011 roster. However, S4 explained that he initially instructed that Complainant's name be placed on the roster, and did not subsequently communicate with her: "From my perspective, she was given that opportunity and then once she went to EEO and got a lawyer, we were told to remain - to go through any future working relationship with her through the EEO office. So she quickly, after she didn't like my answer, went to the EEO office and made a complaint and so from my perspective, she was offered the next class, she was scheduled to attend and, quite frankly, I was surprised that she wasn't in the class." ROI, p. 565. Complainant, however, states that she never received official notification that she was being placed in the August course. ROI, p. 332. Complainant's co-worker, who managed the training list, stated that he initially placed Complainant on the list, but then "I was told to pull her off, I guess because everything was going on, just to wait and see if she still wants to go to August." ROI, p. 672. This co-worker offered no definitive answer as to why Complainant's name was removed from the list. Id. Complainant did not attend the August training after returning to work and accepted a position elsewhere. She explained that, in speaking with the EEO office regarding her being placed in the August training, she was informed that if she accepted the August training, her EEO complaint on the claim of not being able to attend the April training would be negated because "everything has been made right." ROI, p. 334. As a result of not attending the JMAS training, Complainant was not able to assume the Defense Liaison Officer position, and took another position. AJ Decision, p. 5-6. At the conclusion of an investigation into the allegations, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's November 25, 2013, motion for a decision without a hearing and issued a decision without a hearing on June 13, 2014. Specifically, the AJ found that, because Complainant told the Agency she could not complete the course because of her due date, the Agency did not discriminate against her; it was Complainant herself who determined she could not finish the course, and she was never told that she could not participate because of her pregnancy. AJ Decision, p. 9. The AJ also found that Complainant's name was removed from the August roster because she declined to attend the August course. AJ Decision, p. 10. The AJ concluded that Complainant did not prove that she was subjected to sex, disability, or reprisal discrimination. The Agency subsequently issued a FAD adopting the AJ's finding that Complainant did not prove that the Agency subjected her to the alleged discrimination. CONTENTIONS ON APPEAL I. Complainant's Contentions On Appeal Complainant asserts that management did not want her to attend JMAS training due to their concerns that she could not safely complete the training because of her pregnancy, and that her condition would cause liability for the Agency. See, e.g., Complainant's Brief In Support Of Appeal (Complainant's Brief), p. 6-7. Complainant explains that she requested accommodation, mainly to complete only the final two weeks of the course at a later date, because management explained that the last few weeks of the course were physically strenuous, and they did not want her completing those exercises. Complainant's Brief, p. 11. Complainant's request for reasonable accommodation was denied because the Agency concluded that Complainant was not a qualified individual with a disability, because she was not experiencing a pregnancy related complication. Complainant's Brief, p. 12. Complainant further explains that the Agency decided to place her in a later course, specifically the August course, which she would commence after completion of her pregnancy. Complainant's Brief, p. 13. However, Complainant urges that no one ever told her that she was being placed in the August course, and that if she knew that she had actually been placed in the course she would have attended it. Complainant's Brief, p. 14-15. She also alleges that her name was removed from the roster of the August course in retaliation for her filing an EEO complaint. Complainant's Brief, p. 14. Instead, after Complainant returned from her maternity leave, she began to apply for other assignments. Complainant's Brief, p. 15. Complainant contends that a decision without a hearing was not appropriate because there are genuine issues of material fact in dispute, which require a hearing. Id. at p. 20. Complainant states that S4 prohibited her from attending the April training because of her pregnancy and that, if this fact was credited, Complainant would have direct evidence of pregnancy discrimination. Complainant's Brief, p. 19. Second, Complainant states that there is a genuine issue of material fact as to whether the Agency removed Complainant from JMAS or whether she opted out. Complainant's Brief, p. 21. Complainant contends that it was inappropriate for the AJ to credit S4's testimony on this point. Id. Third, Complainant contends that there is a genuine issue of material fact concerning whether the Agency treated Complainant like other temporarily disabled employees. Complainant's Brief, p. 21. Complainant points out that the Agency did not provide evidence of any individual who had to retake the entire JMAS course if they suffered a medical condition during the course. Complainant's Brief, p. 22-23. Complainant contends that she should not have been denied the reasonable accommodation of making up the final two weeks of the course at a later date. Id. Finally, Complainant contends that there is a genuine issue of material fact concerning why the Agency dropped her from the August roster. Complainant's Brief, p. 23. Complainant asserts that this was done in retaliation for her filing an EEO complaint and not, as the AJ concluded, that Complainant refused to attend. Id. I. Agency's Contentions On Appeal13 The Agency contends that the AJ properly issued a decision without a hearing because there are no genuine issues of material fact in dispute requiring a hearing. The Agency contends that "Complainant simply was unable to complete a course of instruction" therefore, the Agency enrolled her in the next offering of the course. Agency's Brief In Opposition To Appeal (Agency's Brief), p. 1. The Agency argues that the AJ characterized Complainant's claim that she was un-enrolled from the April class as one of harassment, and determined that the Agency's actions did not rise to the level of hostile work environment harassment. Agency's Brief, p. 5. The Agency contends that it acted properly in un-enrolling Complainant from the April course because Complainant's due date fell within the final two weeks of the course, and the course had to be completed in its entirety. Agency's Brief, p. 6. The Agency emphasizes that its position is not that pregnant women cannot participate in the training, but that students were required to complete the full course at one time, and since Complainant "was unable" to complete the April course, the Agency attempted to place her in the August course. Agency's Brief, p. 8. The Agency argues that there is no genuine issue of material fact in dispute on this claim because Complainant has not come forward with any evidence that similarly situated non-pregnant workers were treated more favorably. Complainant's Brief, p. 10. Next, the Agency contends that the issue of how Complainant was dropped from the roster of the August course, while an "open" question, is not material. Agency's Brief, p. 11. The Agency argues that Complainant refused to participate in the August course a number of times, was looking for other positions outside of the unit, and, therefore, Complainant's name was somehow removed from the course roster. Agency's Brief, p. 11. The Agency contends that a hearing is not appropriate because Complainant has not suggested that she will adduce any evidence at a hearing that would clarify this question. Id. at p. 11. ANALYSIS AND FINDINGS I. Summary Judgment An AJ may issue a decision without a hearing, or a 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. An Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VI.B (Aug. 5, 2015). While the issuance of a decision without a hearing was appropriate in this case, the AJ's application of the law in his analysis of Complainant's sex (pregnancy) discrimination claim, and his legal and factual determinations regarding Complainant's reprisal claim, were incorrect. Complainant's claim that she was subjected to sex discrimination in being denied the opportunity to attend the April training should have been analyzed for direct evidence of discrimination, while the AJ analyzed for circumstantial evidence. Next, on the issue of reprisal in being removed from the August training, the record does not support the AJ's conclusion that Complainant refused to attend the August training during the relevant time-frame. Further, the AJ's legal conclusion that the Agency sufficiently stated a legitimate, nondiscriminatory reason for removing Complainant from the August training was legal error. The Agency argued for summary judgment on grounds that there were no genuine issues of material fact. Complainant did not oppose summary judgment, but argues on appeal that summary judgment was improper. We find that there are no genuine issues of material fact requiring a hearing, and the record has been sufficiently developed.14 While the AJ's issuance of a decision on summary judgment was appropriate, the AJ's legal and factual errors leads us to conclude that his decision must be reversed in part, as set forth in the discussion below. Only the portions of the AJ's decision being reversed, and on which claims Complainant prevails, will be analyzed. II. Direct Evidence of Sex (Pregnancy) Discrimination A complainant may prove disparate treatment claims "either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in McDonnell Douglas." Young v. United Parcel Service, Inc., 575 U.S. ___, 135 S.Ct. 1338, 1345 (2015); see also, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) ("The McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination"). Upon review, we conclude that there is direct evidence that management officials did not allow Complainant to attend the April training required for her to begin her new position because of unlawful reasons related to her pregnancy. "Adverse treatment of pregnant women often arises from stereotypes and assumptions about their job capabilities and commitment to the job." EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues, "The Pregnancy Discrimination Act: Stereotypes and Assumptions," No. 915.003 (June 25, 2015). "Employment decisions based on such stereotypes or assumptions violate Title VII." Id. (citing, Maldonado v. U.S. Bank, 186 F.3d 759, 768 (7th Cir.1999) (employer could not discharge pregnant employee "simply because it 'anticipated' that she would be unable to fulfill its job expectations"); Duneen v. Northwest Airlines, Inc., 132 F.3d 431, 436 (8th Cir. 1998) (evidence of discrimination shown where employer assumed plaintiff had pregnancy-related complication that prevented her from performing her job and therefore decided not to permit her to return to work). "Such decisions are unlawful even when an employer relies on stereotypes unconsciously or with a belief that it is acting in the employee's best interest." EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues, "The Pregnancy Discrimination Act: Stereotypes and Assumptions," No. 915.003. Complainant did not experience any complications due to her pregnancy that would have prevented her from safely completing the April training. Concerns voiced by management officials regarding the nature of the training in relation to the health and safety of Complainant and her child are not rooted in any factual determination that Complainant could not complete the exercises due to her condition. Rather, management's concerns were rooted in speculation that Complainant could not complete the course because it was unsafe for her to do so while pregnant. Whether it was actually unsafe is unsubstantiated; Complainant did not state or provide evidence to the Agency that she would be unable to perform the activities in the course due to her pregnancy. Further, in management being concerned that Complainant would not safely be able to complete the last few weeks of the training, they do not point to any specific activity that is part of the training that Complainant would not be able to complete or what specifically would prohibit Complainant from being able to complete the activity. While management testified that the final two weeks involve aggressive driving, there is no evidence that Complainant could not complete the activity or that she refused to do so. The evidence also reveals that Complainant offered to "sign a waiver" in order to attend the April training, which can only be explained by the fact that management officials denied her the opportunity to attend the April training. See ROI, p. 596. In totality, management's concerns about Complainant reflect speculation that Complainant could not safely complete the course just because she was pregnant without any supporting evidence; the kind of stereotyping, even when benevolent, that is prohibited by the Pregnancy Discrimination Act.15 See, e.g., Peralta v. Chromium Plating & Polishing, 2000 WL 34633645 (E.D.N.Y. Sept. 15, 2000) (unpublished) (employer violated Title VII when it instructed plaintiff that she could not continue to pack and inspect metal parts unless she provided letter from doctor stating that her work would not endanger herself or her fetus); see also, EEOC v. Catholic Healthcare West, 530 F. Supp. 2d 1096, 1105-07 (C.D. Cal. 2008) (hospital's policy prohibiting pregnant nurses from conducting certain medical procedures was facially discriminatory). The Agency advances the argument that it did not allow Complainant to attend the April training because she was "physically unable to complete the entire April 2011 JMAS course," since her due date fell "within the final two weeks" of the training. Agency's Brief, p. 6-7. Complainant's testimony demonstrates that she wanted to attend the training notwithstanding the risk of having the baby during the final week of the training, and notwithstanding any other perceived risks. As Complainant points out, she did not remove herself from the course, and subsequently protested being removed by questioning why her name was removed from the roster. After Complainant was informed that she would be removed from the course because of the asserted issues of safety and that her due date fell within the last week of the training, only then did she submit a request for reasonable accommodation based on disability proposing three accommodations to allow her to attend the April training. Although the Agency attempts to merge the issue of Complainant requesting accommodation with its denying her the ability to attend the April training, the Agency had already informed Complainant that she would not be allowed to attend the training due to risks, prior to Complainant placing a formal request for accommodation.16 See, e.g., S3 Testimony, ROI, p. 606. The Equal Opportunity Specialist that handled Complainant's reasonable accommodation request states, "She was saying that she wasn't allowed to complete the course or take the course and that's why she was requesting the accommodation." ROI, p. 621-22. In other words, the Agency's discriminatory act was already completed prior to Complainant requesting ways in which she could attend the training without doing the final weeks that management officials did not want her attending. See, e.g., Enforcement Guidance on Pregnancy Discrimination and Related Issues, "Current Pregnancy, Stereotypes and Assumptions" (providing example of PDA violation where plaintiff explained to potential employer that she would be willing to work up to her delivery date but employer refused to hire her stating as the reason that it could not risk that she will decide to stop working earlier); Maldonado v. U.S. Bank, 186 F.3d 759, 768 (7th Cir.1999) (employer could not discharge pregnant employee "simply because it 'anticipated' that she would be unable to fulfill its job expectations").17 These circumstances constitute direct evidence that Complainant was subjected to sex discrimination because of her pregnancy. Therefore, Complainant has proved by a preponderance of the evidence that she was subjected to unlawful sex discrimination in not being allowed to attend the April 2011 training. III. Circumstantial Evidence of Reprisal Discrimination Turning now to the question of whether Complainant has proved by a preponderance of the evidence that she was subjected to reprisal in being removed from the August training, Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination based on reprisal. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). After a complainant establishes a prima facie case, the burden of production belongs to the agency to articulate a legitimate, nondiscriminatory reason(s), for its actions. Burdine, 450 U.S. at 254-55. The agency's explanation must be sufficiently clear to raise a "genuine issue of fact" as to whether discrimination occurred. Id., at 254. Moreover, it must "frame the factual issue with sufficient clarity so that [complainant] will have a full and fair opportunity to demonstrate pretext." Id., at 255-256. While the agency's burden of production is not onerous, it must, nevertheless, provide a specific, clear, and individualized explanation for the differential treatment. Young v. Dept. of Treasury, EEOC Appeal No. 05940517 (Oct. 13, 1995) (citing, Burdine, 450 U.S. at 255-56 (noting that a complainant is entitled to some rationale that provides an opportunity to attempt to satisfy the ultimate burden of proving that the proffered explanation was a pretext for discrimination)). Complainant engaged in protected EEO activity by contacting an EEO Counselor and filing a formal complaint of discrimination on May 2, 2011. The management officials involved in this case were aware fact that Complainant had engaged in EEO activity. Complainant was subjected to adverse treatment in being removed from the August training she was scheduled to attend after returning from maternity leave. A nexus is established because Complainant was removed from the training, scheduled to commence in August 2011, within three months of her EEO activity in April 2011. See, e.g., Rodriguez v. Dept. of Homeland Security, EEOC Appeal No. 01A43894 (March 30, 2005) ("nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred"). Therefore, Complainant established a prima facie case of reprisal discrimination. The Agency's legitimate, nondiscriminatory, reason for removing Complainant from the August training seems to be that management was not sure whether Complainant was interested in attending the training, and that Complainant refused to attend the training. See, e.g., AJ Decision, p. 10. However, the Agency concedes that it is an open question concerning who removed Complainant's name from the August 2011 training. Agency's Brief, p. 12. First, the Agency's reason in its brief, that Complainant's name was removed from the August roster because she refused to attend the August training, is not supported by evidence in the record. Burdine, 450 U.S. at n. 9 ("An articulation not admitted into evidence will not suffice. Thus, the defendant cannot meet its burden merely through an answer to the complaint or by argument of counsel"). Complainant did not, in fact, refuse to attend the August training subsequent to being removed from the April training. Rather, Complainant initially refused to consider attending the August training while negotiating her ability to attend the April training, which is understandable in that Complainant believed she was unlawfully being denied the opportunity to attend the April 2011 training. But there is actually no evidence in the record that Complainant affirmatively refused to attend the August training apart from her urging management that she should attend the April training, and in her request for reasonable accommodation to attend the April training. The AJ cites to Complainant's statement that the August class "was not an option," but this was stated in connection with Complainant's attendance at the April training, and before she was actually removed from the April training. See, e.g., AJ Decision, p. 4 (citing, ROI, p. 509, 510-11, 524-25, 537, 539). As S2 explained, it was an "initial meeting." ROI, p. 510. Therefore, the Agency's position that Complainant was removed because she did not want to attend the August training is not supported by the record. The actual testimony of management in the record reveals that there is no stated reason why Complainant was removed from the August training. S1 indicated that he did not submit Complainant's name for the August training: "I did not know when she was coming back. And I didn't realize that I had any part to play in submitting her name, actually. I was anticipating that someone would come to us and say, [Complainant] will be assigned ... I didn't take the initiative because I didn't think it was my place to submit her. And I was frankly just waiting for someone to make a decision that she was going to go." ROI, p. 386. S1 opined that it may have been an oversight that no one told him Complainant had returned to work and was available to attend training: "If someone had said that, we would have submitted her name." ROI, p. 388. S1 stated that he was waiting for S4, or someone at a higher level, to inform him whether Complainant would be attending the August training. ROI, p. 391. S4 indicated the following as to why Complainant did not attend the August training: "[F]rom my perspective, she was given that opportunity and then once she went to EEO and got a lawyer, we were told to remain-to go through any future working relationship with her through the EEO office. So she quickly, after she didn't like my answer, went to the EEO office and made a complaint and so from my perspective, she was offered the next class, she was scheduled to attend and, quite frankly, I was surprised she wasn't in the class." ROI, p. 565. When asked whether Complainant was informed that she was enrolled in the August training, S4 explained that he did not know because he did not have any contact with her. ROI, p. 354. S4 indicated that upon her filing an EEO complaint, "we were advised not to have discussions with her and that the EEO office would handle the interactions with her." ROI, p. 351. This testimony provides no insight into why Complainant was removed from the August training except that management ceased communication with Complainant after she filed an EEO complaint. Despite testimony from Complainant's management to the effect that they did not know why Complainant was removed from the August training, other testimony demonstrates that Complainant's removal from the training was deliberate. The training instructor, S2, testified that he initially removed Complainant's name from the April list, and placed her on the August roster per instructions of management. ROI, p. 539. However, he later received notification that she would not attend the August training: "Her name stayed on the roster until I got communication from them ... So I got from them, from their office, an e-mail probably sometime in June or July that had a list of the people they wanted in the next class to confirm. See, basically they're confirming, hey do you have these people in the class. And her name wasn't on that list. And I went back to them and I said, hey, I don't have her name on the list and they said, 'Yeah, roger that.'" ROI, 529-30. S2 explained that he received this information from "someone in the DXF staff" but could not recall the individual's name. ROI, p. 530. S2 did not testify to the individual giving any particular reason why Complainant would not be attending the training. Similarly, a co-worker, apparently in charge of managing the training list, testified to initially placing Complainant on the August list, but then being told to remove her. This co-worker did not provide an explanation as to why he was instructed to take Complainant's name off of the list, but speculated: "I guess because everything was going on, just to wait and see if she still wants to go to August." ROI, 672. While Complainant wanted to attend the April training and was denied the ability to do so resulting in her being unable to report to the Defense Liaison Officer position in Country X, she explains that she was never subsequently informed that she was actually registered for the August training. It is evident that Complainant's name was inexplicably removed from the August roster after having been placed on the roster. Given the record, the Agency did not sufficiently state a legitimate, nondiscriminatory, reason for removing Complainant from the August course, giving her the opportunity to show pretext. Further, S4's comment regarding Complainant's EEO activity is evidence of retaliatory animus to the extent that he indicates that he ceased communication with Complainant regarding the training as a result of her EEO activity. Therefore, Complainant has proved by a preponderance of the evidence that she was subjected to reprisal. 18 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD, fully implementing the AJ's finding of no discrimination, is AFFIRMED in part,and REVERSED in part. Those parts of the FAD implementing the AJ's finding that Complainant was not subjected to harassment based on sex and disability, or disparate treatment disability discrimination, are AFFIRMED. Those parts of the FAD implementing the AJ's finding that Complainant was not subjected to sex (pregnancy) discrimination in being denied the opportunity to attend the April JMAS training, and that Complainant was not subjected to reprisal discrimination in being denied admission to the August JMAS training, are REVERSED; the complaint is remanded to the Agency for remedial action consistent with the Order of the Commission, below. ORDER The Agency is ORDERED to take the following actions within one hundred twenty (120) calendar days from the date this decision becomes final, unless otherwise specified: 1. Offer Complainant a position as a Defense Liaison Officer in Country X, or a substantially equivalent position, in a location mutually agreeable to both Complainant and the Agency.19 The Agency shall inform Complainant of the type of training that will be required for the position, and provide Complainant with the opportunity to complete such requisite training. The offer should be made in writing, providing Complainant 15 (fifteen) calendar days from receipt of the offer to notify the agency of the acceptance or rejection. Failure of the Complainant to respond within the 15 day time limit shall be construed as a declination. 2. The Agency shall award Complainant the appropriate amount of back pay, interest, and other benefits pursuant to 29 C.F.R. § 1614.501(c), which was lost in not being able to assume the Defense Liaison Officer position in Country X. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within 120 (one hundred twenty) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. Within sixty (60) days from the date this decision becomes final, the Agency shall investigate Complainant's entitlement to compensatory damages. The Agency shall provide Complainant with the opportunity to submit evidence in support of her entitlement to compensatory damages. Thereafter, and within 120 days of ythe date this decision becomes final, the Agency shall issue a decision on the amount of compensatory damages due Complainant. 4. Provide training to the Agency personnel responsible for the sex discrimination and reprisal, namely, S1, S2, and S4, placing special emphasis on pregnancy discrimination and an employer's obligation not to take retaliatory action against an employee because of their protected activity. 5. Post at the Office of the Office of Controlled Operations, Middle East/Africa Division in Washington, D.C., copies of the notice ordered below. 6. The Agency shall consider taking appropriate disciplinary action against the Agency supervisors involved in the discrimination. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that all of the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at the Office of Controlled Operations, Middle East/Africa Division, in Washington D.C. copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 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 S3 was the selecting official for the Defense Liaison Officer position in Country X, which Complainant was selected for. ROI, p. 590. 3 The location of this assignment has been redacted. 4 S4, Complainant's fourth-level supervisor, states the following regarding the contention that the JMAS course needed to be completed all at once with the same team members: "We don't have a lot of singletons out there. This is the Department of Defense and we have a team approach to training our people and that's consistent for the 28 years that I've been doing this." ROI, p. 587. 5 Complainant's expected delivery date was July 26, 2011. ROI, p. 6. 6 S1 testified he found out "when there was discussion and I was, among other things, going to inquire of her if she was pregnant and verify, if you will..." ROI, p. 629. 7 S2 suggested Complainant take the August training because he was "trying to find solutions" for her. ROI, p. 512. 8 Complainant stated she could stop the training at a certain point; begin her assignment in Country X and finish up the final weeks of the training after having the baby; or begin the training and finish up after she had the baby and then go to Country X for her assignment. ROI, p. 522. 9 Complainant testified that she sent an e-mail to her EEO counselor directly after having the conversation with S2. ROI, p. 445. 10 Complainant testified that S2 initially indicated that she would not be able to attend the training, and that S4 ultimately made the decision not to have her attend. ROI, p. 437. 11 Complainant emphasized that the only reason she asked to complete the latter weeks of the JMAS training at a later date was because her managers expressed concerns about Complainant being able to safely complete the training. See, e.g., Complainant's Brief, p. 11. 12 The Agency appears to characterize claims 1 through 4 as solely a claim of harassment. However, while the allegations may constitute a claim of harassment taken together, Complainant specified that she is alleging disparate treatment sex and disability discrimination in not being allowed to attend the April 2011 JMAS training due to her pregnancy. See, e.g., Formal Complaint (stating, "DIA discriminated against and harassed me on the basis of sex (female) and perceived disability/physical disability (pregnancy/childbirth) when ..."). The claims were also investigated as disparate treatment and harassment claims. See ROI, p. 5-7. The AJ also treated the claims as disparate treatment and harassment. See AJ Decision, p. 2, 6, 8-9. 13 The Agency cites to testimony in its brief in support of appeal and motion for summary judgment which frequently does not support the argument being made. For example, in its motion for summary judgment, the Agency cites to ROI, p. 415-16 for the proposition that "Complainant's attorney explain[ed] the steps he took to stop Complainant's management from trying to work with Complainant on identifying an assignment." Motion for Summary Judgment, p. 9. What the testimony actually establishes is that Complainant and her counsel were willing to engage in mediation, but Complainant's counsel objected to management contacting Complainant directly when they knew she was represented by counsel. ROI, p. 416. 14 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). 15 The Pregnancy Discrimination Act and EEOC regulations contemplate very specific circumstances under which an employee would not be permitted to perform a job because of pregnancy. Prohibiting an individual from particular employment because of pregnancy requires the employer to mount an affirmative "bona fide occupational qualification" defense showing "that pregnancy actually interferes with a female employee's ability to perform the job, and the defense must be based on objective, verifiable skills required by the job rather than vague, subjective standards." Enforcement Guidance on Pregnancy Discrimination and Related Issues, "Disparate Treatment: Bona Fide Occupational Qualification (BFOQ) Defense." "The defense cannot be based on fears of danger to the employee or her fetus, fears of potential tort liability, assumptions and stereotypes about the employment characteristics of pregnant women such as their turnover rate, or customer preference." Id. While the Agency does not explicitly mount this defense, it is effectively what responsible management officials have stated in articulating unsubstantiated fears about safety to Complainant and potential liability to the Agency. However, these over-generalized assertions would not amount to a viable defense. 16 S2 affirms the point that it was the Agency that wanted to remove Complainant from the April training in describing his interaction with Complainant regarding her attendance at the training. From the point that S2 learned about Complainant's pregnancy and her expected due date, S2 wanted to move Complainant to a later training. S2 indicated that in "brainstorming" ways she could attend the April training, Complainant did not state "here is what you need to do to accommodate me." S2 Testimony, ROI, p. 524. Rather, the testimony reflects that Complainant offered ways in which she would be allowed to complete the April training and still address the safety and liability issues raised by management. 17 Even assuming that the evidence did not constitute direct evidence of discrimination and the analysis proceeded under the McDonnell Douglas burden-shifting framework, Complainant would still have shown that the Agency's legitimate, nondiscriminatory reason - that the training course needed to be completed in its entirety - was pretext for discrimination. This is because there is no evidence in the record that the Agency knew for a fact that Complainant could not complete the April training; rather, there was speculation about the safety of the training to Complainant, an issue that was raised immediately subsequent to finding out about Complainant's pregnancy. 18 We do not address Complainant's allegation of disability discrimination because, even upon a finding in her favor, Complainant would be entitled to no further relief than that she will be awarded based upon our findings of sex and reprisal discrimination. 19 This relief is being ordered because Complainant was denied the opportunity to attend the JMAS training, which resulted in her being unable to assume the Defense Liaison Officer position in Country X. The training was required for the position. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2014-2863 2 0120142863