U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dollie T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120161743 Agency No. 4J-460-0096-15 DECISION On May 3, 2016, Complainant 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 April 7, 2016, 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. For the following reasons, the Commission VACATES the Agency's final decision and REMANDS the matter for a supplemental investigation. ISSUES PRESENTED The issues presented are: (1) whether the record is sufficiently developed to determine whether Complainant was subjected to discrimination based on sex (female/pregnancy); and (2) whether the Agency erred in not accepting disability as a basis for Complainant's claims. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a probationary Rural Carrier Associate, PS-05 at the Agency's Crown Point, Indiana Post Office facility. Complainant averred that she began working for the Agency in February 2015 and that in May 2015 she informed the Agency that she was pregnant. According to Complainant, the Postmaster (S1) told her to bring in documentation of her medical restrictions. The record contains a June 29, 2015, doctor's note, which states that Complainant is pregnant with an estimated due date of December 6, 2015, and that she cannot lift more than 25 pounds. The record contains a July 15, 2015, doctor's note, which states that Complainant has hyperemesis gravidarum and cannot lift, push, or pull more than 10 pounds and that she can only drive the truck for two hours per day. Complainant alleged that on July 16, 2015, S1 called her and told her that she could not work due to her medical restrictions. According to S1, there was no productive work available for Complainant within her medical restrictions. Complainant averred that she could have cased a route and delivered mail and packages for two hours without violating her restrictions. S1 averred that the collective bargaining agreement (CBA) prohibits light duty in the rural carrier craft. The record contains excerpts from the applicable collective bargaining agreement. Article 13, Section 1 of the CBA states, "The Employer will make an effort to assist employees who through occupational injury or occupational illness are unable to perform their regularly assigned duties. This effort will consist of possible assignment to limited duty work if such is available." Article 13, Section 3 of the CBA states, "In the rural carrier craft, at any local installation, regular rural routes shall not be considered for any light duty assignment." Complainant stated that S1 did not schedule her to work after July 16, 2015. According to Complainant, on August 7, 2015, S1 called her and told her to come in for an evaluation of her probationary period. On August 7, 2015, S1 issued Complainant a termination notice for unavailability during her probationary period. S1 stated that Complainant told her that her medical restrictions would last until after the probationary period ended, so she could not evaluate Complainant. On November 7, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female/pregnancy) and disability (complications of pregnancy) when: 1. Between July 16, 2015, and August 7, 2015, her medical restrictions were not accommodated and she was sent home; and 2. On August 7, 2015, she was issued a Termination During Probation letter. The Agency only accepted sex as a basis. However, both Complainant's formal complaint and the EEO Counselor's Report clearly indicate that she alleged both sex and disability as bases for her claims. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that she was wrongly denied work and terminated because of her pregnancy. Complainant states that a former coworker who was terminated due to pregnancy was subsequently reinstated, and Complainant requests that she similarly be reinstated. In response to Complainant's appeal, the Agency contends that its final decision properly found that Complainant failed to establish that its legitimate, nondiscriminatory reasons were pretextual. STANDARD OF REVIEW 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"). ANALYSIS AND FINDINGS 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)(l). "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." 42 U.S.C. § 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. Although the framework for analyzing a pregnancy discrimination denial of accommodation claim was solidified in Young prior to the filing of Complainant's complaint, the Agency failed to analyze her claim using this framework; 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, was sent home without pay, and was discharged. 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 quality 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. Disability Discrimination Complainant alleged in her formal complaint that she was subjected to disability discrimination. However, the Agency characterized her claim as sex discrimination arising under Title VII. Complainant's disability discrimination allegation was neither accepted nor investigated. Given that pregnancy-related complications can constitute a disability, combined with the fact that Complainant alleged that she was denied accommodation for her medical restrictions, the Agency should have accepted and investigated Complainant's claim as one of disability discrimination. "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, No. 915.003 (June 25, 2015). 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 Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.000 (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 (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 (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."). We find that the record is insufficiently developed to determine whether Complainant was a qualified individual with a disability. We further 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 Complainant was ineligible for light duty. 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). Accordingly, the record requires further development, including a full investigation into Complainant's disability discrimination claims. 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 and REMAND the matter for a supplemental investigation in accordance with this decision and the ORDER below. ORDER Within one hundred twenty (120) calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation that includes, but is not limited to, the following information: 1. A full investigation of Complainant's disability discrimination claims, including information probative of whether Complainant was denied a reasonable accommodation under the Rehabilitation Act; 2. Identification of comparator 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 employees injured on the job; 4. Explanation 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; and 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). The Agency shall complete these actions within one hundred twenty (120) calendar days of the date this decision is issued, unless the matter is otherwise resolved before that time. The Agency shall then 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 the issuance of an Agency decision. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 6-14-18 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161743 8 0120161743