U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Waneta F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120151508 Hearing No. 551-2014-00198X Agency No. 4E-970-0007-14 DECISION On March 18, 2015, Complainant filed an appeal prior to the Agency's March 30, 2015, final decision 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency properly determined that the preponderance of the evidence in the record did not establish that Complainant was subjected to unlawful discrimination based on sex (female and pregnancy) or disability (pregnancy). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant and as a City Carrier2 at the Agency's Creston Station in Portland, Oregon. Complainant's first-line supervisor (S1) was the Supervisor, Customer Service, her second-line supervisor (S2) was the Manager, Customer Service, her third-line supervisor (S3) was the Manager, Customer Service Operations, and her fourth-line supervisor (S4) was the Portland Postmaster. Complainant notified management that she was pregnant in June 2013. Complainant provided management with a June 19, 2013, form filled out by her physician, which estimated Complainant's due date as December 31, 2013, and stated that Complainant had the following restrictions: lifting/carrying/pushing/pulling no more than 15 pounds for no longer than eight minutes per hour and working no more than eight hours per day. On June 24, 2013, S4 issued Complainant a letter, which stated, in relevant part, "Your current restrictions can be accommodated for 8 hours per day, adjusted for workload within your medical restrictions, at Creston Station 8:30 a.m. [t]o 5:00p.m." The letter also noted that "first priority to modified duty assignments are reserved for those employees injured in the course of their duties. Light duty, in contrast, is limited to productive work that is available and of the duties normally associated with an established duty assignment." On July 11, 2013, Complainant was issued a Letter of Warning for failure to be regular in attendance. According to the Letter, Complainant took unscheduled Leave Without Pay (LWOP) on April 19, 2013, and took unscheduled LWOP in lieu of sick leave on June 4, June 5, June 12, June 13, June 24, and July 5, 2013. The Letter stated, "In the investigative interviews held on July 6, 2013 with your shop steward present, you stated that you were absent from work due to medical issues. . . . When asked if you have any reason why you can[]not be regular in attendance, you stated 'Doctor appointments.'" On October 30, 2013, S1 issued Complainant a Notice of a Seven-Day (No-Time-Off) Suspension for unsatisfactory attendance. According to the Notice, Complainant took unscheduled LWOP on July 10, October 10, and October 19, 2013, took unscheduled LWOP in lieu of sick leave on August 22, September 5, September 6, September 7, and October 11, 2013, and was tardy on October 24, 2013. The Notice stated, "In the investigative interviews held on October 25, 2013 with your shop steward present, you stated that your abs[enc]es were caused by illness due to pregnancy. . . . None of the above absences were FMLA protected. When asked if you have any reason you can[]not be regular in attendance you stated 'I can be regular in attendance, unless complications come up due to pregnancy unable ling [sic] me to work.'" In November 2013, Complainant sent S3 and S4 a letter requesting to be an acting 204B supervisor. S2 said that S3 and S4 asked whether she would recommend Complainant to become an acting supervisor and that she said no because she had a poor attitude, "[n]ot to mention the live corrective action in her file." According to S4, she denied Complainant's request because 204B supervisors were required to work more than eight hours a day and more than 40 hours per work, which would have violated Complainant's medical restrictions. On November 12, 2013, Complainant's physician updated her restrictions as follows: standing and walking intermittently (up to 50% of shift), bending at the waist and torso/spine twisting occasionally (up to 25% of shift), lifting/carrying/pushing/pulling no more than 20 pounds, and working no more than six hours per workday, with the following note, "Please modify work duties to inside work where [patient] can void when needed and can rest with feet elevated for 15 minutes twice shift." According to S2, after Complainant's restrictions were updated to inside work only, "[C]omplainant was worked in the office casing up her route in the mornings and running off Express mail if possible. If there was no other available work within her limitations she was then sent home for the day." S2 said that approximately 95 percent of the work of a City Carrier is performed outside. There is no formal letter in the record informing Complainant about whether her updated limitations could be accommodated. On December 6, 2013, Complainant requested EEO counseling. On March 15, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female and pregnancy) and disability (pregnancy) when: 1. On July 11, 2013, she was issued a Letter of Warning; 2. On October 30, 2013, she was issued a Notice of Seven-Day Suspension; 3. On November 22, 2013, her request to be an acting supervisor (204B) was denied; and 4. From June 2013 until December 27, 2013, management provided her with minimal light duty work. The Agency accepted claims 2 through 4 for investigation and dismissed claim 1 pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. 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 requested a hearing but the AJ dismissed the hearing request on February 20, 2015, on the grounds that Complainant failed to respond to the AJ's Order to meet and confer with the Agency, failed to respond to the Agency's discovery requests, and failed to respond to the AJ's Order Granting Agency's Motion to Compel. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that her attorney failed to represent her during the hearing process by failing to comply with her requests. Complainant requests that she be given the opportunity for another hearing. In response to Complainant's appeal, the Agency contends that the events cited by the AJ as justification for dismissing her hearing request occurred before Complainant's attorney entered a notice of appearance. According to the Agency, because Complainant's pregnancy was "normal," she was not an individual with a disability, and she was not entitled to a reasonable accommodation. The Agency further contends that it did reasonably accommodate Complainant by providing her 36.54 light duty hours per week on average between June 24, 2013, and November 8, 2013.3 The Agency also contends that it provided legitimate, nondiscriminatory reasons for its actions and that the preponderance of the evidence in the record does not establish that these reasons are pretext for discrimination. The Agency requests that its final decision be affirmed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Sex (Pregnancy) Discrimination 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, the Agency should thoroughly investigate and analyze this complaint in light of Young. Complainant alleged that she was denied the accommodation of light-duty work and was sent home without pay. She has demonstrated elements of a prima facie case in that she was pregnant and sought light-duty accommodation. However, the record needs development to identify employees who were similar in their ability or inability to work who were provided accommodations. This includes identification of the different categories of workers the Agency accommodates; for example, individuals injured at work and those receiving reasonable accommodations pursuant to the Rehabilitation Act. 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"). The record needs further development on the issue of accommodation for Complainant's pregnancy. Further, the record should be developed to allow for a determination as to whether the Agency's legitimate, nondiscriminatory, reasons are pretext for discrimination. For example, Complainant can show pretext by demonstrating that the Agency's policy of accommodating workers injured on the job, but not pregnant employees, imposes a significant burden on pregnant workers, and that the Agency's legitimate, nondiscriminatory reason is not sufficiently strong to justify the burden imposed. Further, regarding the Agency's contention that Complainant was issued a suspension because of her attendance, the record requires further development on whether other employees, similar in their ability or inability to work, were allowed use of leave or LWOP in lieu of sick leave without being terminated. Enforcement Guidance: Pregnancy Discrimination and Related Issues, No. 915.003, at EEOM 626:15 ("[Employer] must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work"). It is also not clear whether Complainant used leave and LWOP within the guidelines of the Agency's sick leave policy because if so, she would not need to show comparative employees. Enforcement Guidance: Pregnancy Discrimination and Related Issues, No. 915.003, at EEOM 626:15 ("an employer could not fire a pregnant employee for being absent if her absence fell within the provisions of the employer's sick leave policy") (citing, Byrd v. Lakeshore Hosp., 30 F.3d 1380, 1383 (11th Cir. 1994) ("rejecting employer's argument that plaintiff, who was discharged partly due to her use of accumulated sick leave for pregnancy-related reasons, additionally was required to show that non-pregnant employees with similar records of medical absences were treated more favorably; the court noted that an employer is presumed to customarily follow its own sick leave policy and, if the employer commonly violates the policy, it would have the burden of proving the unusual scenario"). Therefore, further development of the record and analysis is required for Complainant's pregnancy discrimination allegations. Disability Discrimination Complainant may also have a claim for denial of a reasonable accommodation under the Rehabilitation Act. "A pregnant employee may be entitled to reasonable accommodation . . . for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment." See Enforcement Guidance: Pregnancy Discrimination and Related Issues, at EEOM 626:20. As a preliminary matter, we REVERSE the Agency's dismissal of claim 1 for untimely EEO counselor contact. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. However, the Commission notes that the duty to reasonably accommodate is ongoing. As such, at the time Complainant contacted the counselor, she was alleging that the Agency remained unwilling to provide her with the accommodations she still needed. 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). Complainant's request for light duty work may be construed as a request for reasonable accommodation because she identified her medical restrictions and the accommodations she would need. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, at EEOM 902.154 (a request for reasonable accommodation does not have to be in writing and does not have to use the magic words "reasonable accommodation"); see also, Triplett-Graham v. U.S. Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24, 2006) (employee need only inform agency that he or she needs adjustment or change at work for reason related to a medical condition); Enforcement Guidance: Pregnancy Discrimination and Related Issues, at EEOM 626:23 (indicating that employers should "[t]rain managers to recognize requests for reasonable accommodation and to respond promptly to all requests. Given the breadth of coverage for pregnancy-related impairments under the ADA, as amended, managers should treat requests for accommodation from pregnant workers as requests for accommodation under the ADA unless it is clear that no impairment exists."). Additionally, Complainant utilized LWOP in lieu of sick leave as a result of her pregnancy, and leave can be a form of accommodation for a pregnancy-related complications. See Enforcement Guidance: Pregnancy Discrimination and Related Issues, No. 915.003, at EEOM 626:20. Therefore, further development of the record and analysis is required for Complainant's disability discrimination allegations. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision, REMANDING allegations 1 through 4 for further processing in compliance with this decision and the ORDER below.4 ORDER Within one hundred and twenty (120) calendar days of receipt of this order, the Agency shall conduct a supplemental investigation which includes the following: 1. A full investigation of allegation 1; 2. Identification of comparative employees who were similar in their ability or inability to work who were provided with light duty and other accommodations; 3. Identification of the various categories of employees receiving accommodations, such as those receiving reasonable accommodations under the Rehabilitation Act and accommodations for those impaired by work-related injuries;5 4. Explication of the Agency's policy on assignment of light- and limited-duty work to workers injured on the job versus those not injured on the job; 5. Other information probative of whether Complainant was denied accommodation for her pregnancy-related restrictions in violation of the Pregnancy Discrimination Act taking into account the framework provided in Young v. United Parcel Service, 575 U.S. ___, 135 S. Ct. 1338 (2015). 6. Information probative of whether Complainant was denied a reasonable accommodation pursuant to the Rehabilitation Act, 29 U.S.C. § 791 et seq. 7. Information probative of whether Complainant was subjected to sex discrimination because of her pregnancy in violation of the Pregnancy Discrimination Act in being disciplined for her use of LWOP in lieu of sick leave, specifically including information on what the Agency's sick leave policy is and the terms under which employees similar in their ability or inability to work were allowed to utilize leave. The Agency shall provide Complainant thirty (30) calendar days to review the Report of Investigation and the supplemental investigation, to provide a rebuttal, and to request a hearing before an EEOC Administrative Judge or to request the issuance of an Agency decision. The Agency shall complete these actions within one hundred and twenty (120) calendar days of the date this decision becomes final, unless the matter is otherwise resolved before that time. In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint. 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 __________________ 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 On November 2, 2013, Complainant was converted from a temporary City Carrier Assistant position to a full-time career City Carrier position. 3 According to the record, in 2013 Complainant worked 40.07 hours the first week of pay period 14, worked 34.21 hours the second week of pay period 14, worked 25.33 hours the first week of pay period 15, worked 33.10 hours the second week of pay period 15, worked 39 hours the first week of pay period 16, worked 38.85 hours the second week of pay period 16, worked 38.72 hours the first week of pay period 17, worked 34.74 hours the second week of pay period 17, worked 39.32 hours the first week of pay period 18, worked 39.22 hours the second week of pay period 18, worked 37.20 hours the first week of pay period 19, worked 26.70 hours the second week of pay period 19, worked 32.62 hours the first week of pay period 20, worked 36.97 hours the second week of pay period 20, worked 39.50 hours the first week of pay period 21, worked 39.65 hours the second week of pay period 21, worked 25.49 hours the first week of pay period 22, worked 36.61 hours the second week of pay period 22, worked 34.75 hours the first week of pay period 23, worked 35.72 hours the second week of pay period 23, worked 24.18 hours the first week of pay period 24, worked 17.53 hours the second week of pay period 24, worked 15.56 hours the first week of pay period 25, worked 7.59 hours the second week of pay period 25, worked 5.89 hours the first week of pay period 26, and worked 7.68 hours the second week of pay period 26. 4 Due to the intertwined nature of claims 2 through 4 and in order to avoid piece-meal litigation, the Commission will not at this time address claim 3. 5 Evidence that "the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers" can contribute to Complainant's showing that a "significant burden" exists for pregnant workers. Young, 575 U.S. at ___, 135 S. Ct. at 1354. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2015-1508