0120150264
05-22-2015
Complainant v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Complainant
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120150264
Hearing No. 532-2013-00003X
Agency No. HS-ICE-21775-2012
DECISION
On October 28, 2014, Complainant filed an appeal from the Agency's September 29, 2014, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: 1) whether there are genuine issues of material fact that require a hearing before an EEOC Administrative Judge (AJ); 2) whether the AJ properly found that Complainant's religious accommodation claim was initiated by untimely EEO Counselor contact; 3) whether the AJ properly found that Complainant failed to prove that she was denied a reasonable accommodation for her religious beliefs when she was placed on the work schedule during her Sabbath observances; and 4) whether the AJ properly found that Complainant failed to prove that the Agency discriminated against her on the basis sex (pregnancy) when it failed to reassign her to another office and remove a project from her responsibility.
BACKGROUND
At the beginning of the time period of the events giving rise to this complaint, Complainant worked as a GS-13 Special Agent at the Agency's Strongsville, Ohio facility. Complainant has served as a Special Agent since 1992 and began working at the Agency's Cleveland area offices in 2001. The Cleveland area has two facilities, one located in Strongsville, Ohio (the South office), and the other located in downtown Cleveland (the North office). In August 2011, Complainant was informed that her work group would be transferred to the North office in downtown Cleveland.
Complainant is a Seventh-Day Adventist. One of the core tenets of Complainant's faith is the belief that she must refrain from work from sundown Friday until sundown Saturday. This period of refraining from working is referred to as a Sabbath.
In addition to their regularly scheduled work hours, all agents are assigned on a rotating basis to be "on call" or as a "Duty/Back-up Duty Agent." These duties include tasks such as handling calls from other governmental and/or law enforcement agencies or the general public, which could result in surveillance or enforcement operations. This could include weekend duty. Initially, work schedules were done on a "week at a time" basis, which meant that each agent served a Duty Agent or Back-up Duty Agent for one-week periods. In or about October 2004, schedules were changed to a "day at time" or daily assignment periods.
Complainant stated that when she arrived at the Strongsville facility, she requested not to be called out on surveillance and other duties during her Sabbath hours. According to Complainant, the Resident Agent in Charge (RAC1) and the Group Supervisor (GS1) at that time granted this request for a religious accommodation by arranging the duty schedule so that any time Complainant's duty rotation fell on a Saturday, it was moved to Sunday.
In 2006, RAC1 retired and was ultimately replaced by RAC2. A new Assistant Special Agent in Charge (ASAC) also was appointed for the Ohio region. On or about September 28, 2007, the duty schedule was changed again to "one week at a time," which meant Special Agents were assigned for duty for one-week periods. The schedule ran from 8:30 a.m. Friday until 8:30 a.m. the next Friday.
On her own initiative, Complainant sought arrangements with other agents in which she would swap shifts with other agents for every period she was scheduled for on-call duty during her Sabbath. In June 2011, the Agency reverted to daily scheduling for Back-Up Duty and Primary Agent schedule. However, the Agency scheduled Complainant for duty that overlapped with her Sabbath on July 9, 2011 (Back-Up); August 13, 2011 (Primary); September 16, 2011 (Back-Up); November 12, 2011 (Primary); December 17, 2011 (Back-Up); February 4, 2012 (Back-Up); April 27, 2012 (Primary); June 16, 2012 (Primary); and June 29, 2012 (Back-Up). Additionally, the Agency scheduled Complainant for on-call duty during her Sabbath on October 5, 2013 and November 23, 2013.
In or about October 2011, Complainant was transferred to the downtown Cleveland, Ohio office, which is approximately 14 miles from the Strongsville office. On November 21, 2011, Complainant notified the Group Supervisor (GS2) that she was approximately six weeks pregnant and that her pregnancy was considered high-risk for a miscarriage. Based on concerns about her pregnancy, Complainant requested that GS2 move her back to the Strongsville office, which was closer to her home and avoided much of the downtown Cleveland construction and rush-hour traffic. Complainant also noted that Strongsville is closer to her doctor's office in Wooster, Ohio, and that she needed to be closer to her doctor in case of a medical emergency related to her pregnancy. Complainant further expressed concern about commuting in the upcoming winter weather, as well as bladder issues associated with a longer and more stressful commute. Additionally, Complainant requested that the IMAGE program to which she was assigned be reassigned to someone else because she would not have the entire rating period to accomplish her performance goals given her expected upcoming maternity leave.
GS2 consulted with several layers of management about Complainant's request and was informed by the Agency's Employee Labor Relations (ELR) office that Complainant needed to complete and forward to Agency Headquarters a request for accommodation form and a doctor's note showing a medical need for a transfer. On or about November 22, 2011, GS2 informed the Employee Labor Relations Specialist (ELRS) that Complainant was requesting a transfer to the Youngsville office, and ELRS advised GS2 that Complainant would be required to provide medical information from her physician along with a reasonable accommodation request that would be presented to the Agency's medical staff for review.
On November 30, 2011, Complainant was informed that an ultrasound showed no fetal heartbeat. Complainant experienced a miscarriage on December 15, 2011.
On December 2, 2011, GS2 advised Complainant that she must submit a request for accommodation form with supporting medical documentation to headquarters to be considered for reassignment to the Strongsville office. The reasonable accommodation form contained an inquiry that asked Complainant to describe the medical condition requiring accommodation. The form also asked Complainant to describe the duration of the request. On or about December 12, 2011, Complainant submitted the form. On the form, Complainant stated, "Original request made due to pregnancy. Current request now due to miscarriage." Complainant did not submit any documentation from her physician supporting the request.
On December 23, 2011, the ELRS told GS2 that Complainant's request for transfer needed medical documentation to substantiate her need for a transfer. On December 20, 2011, Complainant contacted an EEO Counselor. On April 3, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and religion (Seventh Day Adventist) when:
1. Beginning November 21, 2011, the Agency did not timely respond to and failed to take seriously her request for accommodation during her high-risk pregnancy; and
2. On January 6, 2012, the Agency failed to provide a reasonable accommodation for her religious belief with regard to scheduling her for work duty during her Sabbath observance.
During a deposition, Complainant testified that, shortly after she arrived at the Cleveland office, she told RAC1 that she is a Seventh Day Adventist and asked him to accommodate her observance of the Sabbath. She stated that he accommodated her religious observance by not scheduling her to oversee surveillance or enforcement actions on her Sabbath. Complainant further testified that when the schedule was changed to a "week at a time" in September 2007, she was no longer accommodated. Complainant stated that she did not ask management to accommodate her at that time because "it was clear that I had been accommodated, and they had chosen to change it, and to me it was clear they no longer [were] accommodating me by making the change." Complainant's Deposition, p. 22.
Complainant further testified that on one occasion, she received a duty call regarding a possible money drop-off right before Sabbath began. Complainant stated that she told the duty agent that because it was close to sundown, she should call RAC2 instead. Complainant testified that she then called RAC2 and advised him of the situation, but RAC2 became irate and said, "We're getting to the bottom of this Sabbath thing." Complainant's Deposition, p. 25.
Complainant testified that from November 21, 2011, until March 26, 2012, she was able to switch with another agent when she was scheduled to work on the Sabbath. Complainant testified that during a meeting with RAC2, he asked her if she was "okay with switching on your own." "And I mean what else am I going to say at that point?" Complainant testified. Complainant's Deposition, p. 40. Complainant testified that management has not stopped anyone from switching duty days. Complainant also testified that, as a criminal investigator, her job description requires her to be available at all times, or "24/7."
Complainant further testified that changing her work station to the downtown Cleveland office doubled her commute. Complainant testified that on November 21, 2011, she told GS2 that she was six weeks pregnant, and her pregnancy was "high risk." She testified that she then met with a management to see if it would be reasonable for her to ask management to transfer her back to the South office to avoid the added stress of a doubled commute, and for her performance plan to be changed because she would not have the entire rating period to complete all the goals that were set forth for her. She stated that the management official said that he thought her requests were reasonable. Complainant testified that the only restriction she had at that time was a prohibition on firing weapons. Complainant also testified that GS2 told her that she needed to fill out a reasonable accommodation form, which she did. She stated that she submitted the form on December 12, 2011, but she did not submit any medical documentation.
GS2 testified that he supervised Complainant from 2008 until June 2012 and knew that she is a Seventh Day Adventist. GS2 further testified that he always accommodated Complainant's Sabbath observances. He stated that when there were enforcement actions on the weekends, the Agency never called Complainant out to work because management knew she was observing her Sabbath.
GS2 further testified that the duty agent roster is alphabetically-based to alleviate complaints of unfairness. He stated that on those rare occasions when Complainant's duty would fall on her Sabbath, management allowed her to switch with another agent, which she did during her entire tenure without any problems. GS2 testified that Complainant was never forced to work during her Sabbath. GS2 testified that the duty agent schedule is released quarterly, which allows Complainant advance time to swap with other agents. GS2 also stated that if Complainant were unable to find an agent to swap with her, she probably would have come to management, and management would force someone to work.
GS2 also testified that Complainant informed him that she was pregnant on November 21, 2011. GS2 testified that Complainant said that her pregnancy was high-risk and requested to move from the downtown office to the Strongsville office because the drive to the Strongsville office was shorter and less stressful. GS2 stated that he told Complainant to "run it up the chain of command" because group supervisors cannot make that decision, and he had no experience with this type of matter. GS2 also stated that he raised the matter with his chain of command, and that ELR advised him to inform Complainant to obtain a note from her physician demonstrating a medical need to transfer from the downtown Cleveland office to the Strongsville office.
GS2 further testified that on December 2, 2011, he presented Complainant with an accommodation request form and told her to fill it out and provide him with medical documentation from her physician demonstrating a medical reason for the transfer. GS2 further testified that, later that day, Complainant talked to him about getting the IMAGE program transferred to another agent because she planned to go on maternity leave in July 2012, and she was concerned about making her goals. GS2 testified that IMAGE is a "meet and greet" program wherein employees explain immigration compliance to businesses. GS2 stated that he advised Complainant that performance appraisals could be changed throughout the year, and he would work with her regarding the goals. GS2 testified that he also told Complainant that if she needed help or had an issue meeting goals, he could probably get other employees to assist and do presentations so that the overall office goal could be met.
GS2 testified that he learned that Complainant had a miscarriage on December 12, 2011, when she submitted a request for accommodation. GS2 stated that Complainant did not submit any supporting medical documentation with her request. GS2 testified that on December 21, 2011, he informed Complainant that her accommodation was "incomplete."
GS2 testified that a secretary who worked in the Strongsville office was assigned to work at the Cleveland office a couple of days per week because there were nine agents in Cleveland without any administrative support, and there was a need for her to go through boxes of documents so that they could be sent to the records center. GS2 further testified that he has not moved any of his personnel under his supervision between the North and South offices, and that headquarters must approve any requests to move based on medical needs.
In a sworn declaration, GS2 also stated that Complainant was in sick leave status on November 30 and December 1, 2011. GS2 further testified that Complainant was also on sick leave from December 6, 2011, until December 12, 2011, and also from December 14, 2011, until December 21, 2011. GS2 stated that any delay in responding to Complainant's requests was attributable to the ELR Specialist being on vacation during the Thanksgiving holiday, and Complainant's sick leave status. GS3 further stated that he informed Complainant that headquarters requested medical documentation to support her request to transfer to Strongsville, but Complainant became very upset and yelled, "I had a miscarriage. Don't you understand? It's too late." GS3 also testified that on January 6, 2012, a Resident-in-Charge (RAC2), Complainant, and GS3 met with Complainant and informed her that she needed to provide supporting medical documentation demonstrating her need for the transfer, but Complainant insisted there was no reason why management had to go through headquarters to transfer her to Strongsville. GS2 stated that Complainant's request for a transfer to downtown Cleveland office was denied because she never provided management with medical documentation that demonstrated a need to be reassigned to Strongsville.
AJ's Decision
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 AJ. Complainant timely requested a hearing. On July 23, 2013, the Agency moved for summary judgment in its favor, to which Complainant responded in opposition. On September 2, 2014, the AJ granted summary judgment in favor of the Agency.
Regarding claim 1, the AJ noted that Complainant did not allege that her pregnancy or any medical condition rendered her disabled within the meaning of the Rehabilitation Act. The AJ stated that Complainant's attempt to compare herself to other employees was "unavailing" in this case because she failed to provide the Agency with medical documentation to support her requests for an accommodation. The AJ concluded that Complainant did not establish a prima facie case of discrimination because she did not show that other employees received reasonable accommodations for undetectable medical conditions and were provided accommodations in the absence of supporting medical documentation. The AJ further concluded that the Agency provided legitimate, non-discriminatory reasons for its actions, but the Complainant failed to show that the reasons were pretext for unlawful discrimination.
Regarding claim 2, the AJ found that Complainant challenged work schedules implemented in 2007, but did not initiate EEO Counselor contact until December 20, 2011. The AJ found that claim 2 should therefore be dismissed on the basis that it was initiated by untimely EEO Counselor contact.
The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in finding that her religious accommodation claim was initiated by untimely EEO Counselor contact. Complainant maintains that the Agency's ongoing denial of a religious accommodation is a "continuing violation" that renders her EEO Counselor contact timely. Complainant maintains that, although the failure to accommodate began in 2007, it continued on a consistent basis through 2012, well after her initial December 20, 2011, EEO Counselor contact. Complainant also contends that the AJ erred in granting summary judgment in favor of the Agency. Complainant maintains that the Agency previously accommodated her by not scheduling her for Primary or Back-up duty during her Sabbath, and there is no evidence that it would not have been reasonable for the Agency simply to continue this prior practice.
Regarding her request for a transfer because of her pregnancy, Complainant contends that there was no specific Agency policy that required medical documentation to support Complainant's request. Complainant further contends that there is no evidence that a medical review was required or that the medical personnel who would review the information would have any particular expertise in pregnancy issues. Complainant maintains that the Employee and Labor Relations Specialist (ELRS) admits receiving the request on November 22, 2011, but did not respond to it until November 29, 2011. Additionally, Complainant maintains that she did not receive the accommodation request form until December 2, 2011, and ELRS received her accommodation request form on December 12, 2011. Complainant maintains that ELRS did not inform her that the information she submitted was deficient until December 23, 2011.
Complainant maintains that similar requests from non-pregnant employees in Cleveland with respect to work-location issues were routinely granted or allowed. Specifically, Complainant contends that an Intel Research Specialist confined to a wheelchair rarely reported to work and did not take leave; an employee was allowed temporary duty in Florida because of his mother's health; a Special Agent was provided with a temporary duty assignment for one year; a Special Agent was permitted to work with a task force in the Strongsville area; and an agent was allowed to work out of the U.S. Attorney's office in Toledo, Ohio. Complainant maintains that there is no evidence that these comparators were required to provide medical justification for their accommodations. Complainant maintains that her pregnancy is the only material difference between herself and the identified comparators, and therefore, the Agency's actions were unlawful discrimination. In a brief appellate statement, the Agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact
The AJ found that Complainant's religious accommodation claim was initiated by untimely EEO Counselor contact because she challenged work schedules implemented in 2007, but did not initiate EEO Counselor contact until December 20, 2011. We note that Complainant contends that the Agency's failure to accommodate her extended beyond the date of her initial EEO Counselor contact. EEOC Compliance Manual, Section 2, "Threshold Issues," p. 2-73, EEOC Notice 915.003 (July 21 2005), provides that "because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it." Moreover, we have held that because an employer has an ongoing obligation to provide reasonable accommodation, failure to do so constitutes a violation each time the employee needs it. Wise v. U.S. Postal Serv., EEOC Appeal No. 0120065130 (May 18, 2007); Harmon v. Office of Personnel Management, EEOC Request No. 05980365 (Nov. 4, 1999). As such, all instances wherein Complainant's religious observance allegedly was not accommodated due to conflicts with her work schedule constitute recurring violations of Title VII. Complainant alleges that she was denied a reasonable accommodation within 45 days of her initial EEO Counselor contact, as well as dates beyond that initial contact. Therefore, we find that Complainant's EEO Counselor contact is timely as to her reasonable accommodation claim, and that the AJ improperly dismissed this claim. We will address this claim on its merits below, as the claim was investigated by the Agency.
Summary Judgment
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record we find that there was no genuine issue of material fact or credibility so as to warrant a hearing. A decision without a hearing therefore was appropriate.
Claim 1
Complainant alleges that the Agency failed to reasonably accommodate her religious beliefs. Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. 42 U.S.C. � 2000e(j); 29 C.F.R. � 1605.2(b)(1). The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires an employee to demonstrate that: (1) he or she has a bona fide religious belief, the practice of which conflicted with their employment, (2) he or she informed the agency of this belief and conflict, and (3) the agency nevertheless enforced its requirement against complainant. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984).
Once a complainant establishes a prima facie case, the Agency must show that it made a good faith effort to reasonably accommodate Complainant's religious beliefs and, if such proof fails, the Agency must show that the alternative means of accommodation proffered by Complainant could not be granted without imposing an undue hardship on the Agency's operations. See Tiano v. Dillard Dept. Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998); Redmond v. GAF Corporation, 574 F.2d 897, 902 (7th Cir. 1978); Cardona v. U.S. Postal Serv., EEOC Request No. 05890532 (Oct. 25, 1989). Pursuant to 29 C.F.R. � 1605.2(a) - (e), the Commission's "Guidelines on Discrimination Because of Religion" (the Guidelines), alternatives for accommodating an employee's religious practices include, but are not limited to, voluntary substitutes and swaps, flexible scheduling, and lateral transfers and job changes. Undue hardship does not become a defense until the employer claims it as a defense to its duty to accommodate. Ansonia Board of Education v. Philbrook, 479 U.S. 60, 68-69 (1986). In order to show undue hardship, an employer must demonstrate that an accommodation would require more than a de minimis cost. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977).
Upon review, we first note that Complainant provided contradictory statements regarding her communications with pertinent management officials about her religious objections to being scheduled to work on Sabbath. For example, in an investigative statement, Complainant generally stated that she spoke to all her supervisors about her religious beliefs about the Sabbath and requested to not be scheduled to work from sundown Friday until sundown Saturday. However, in the same statement, Complainant stated that she "did not approach any managers because it was clear that they were aware of my Sabbath observance and had made the changes despite this, and that they were choosing to no longer accommodate me." Report of Investigation (ROI), Exhibit 9, p. 5. Complainant further stated that she felt that if she brought this matter to management's attention, she would be considered a "trouble maker" and that it would affect her ability to get promoted. Likewise, in her deposition, Complainant testified that when the duty schedule was changed to weekly duty in September 2007, she did not ask management to accommodate her because "it was clear" that she previously had been accommodated, and they had chosen to no longer accommodate her. Thus, Complainant's account of events reflects that she did not notify management of the conflict between her religious beliefs and the work schedule during the relevant time period.
Nevertheless, assuming that Complainant can establish a prima facie case of discrimination based on religious accommodation, we find that the Agency made a good-faith effort to reasonably accommodate her. The Commission has found acceptable several alternatives for accommodating conflicts between work schedules and religious practices, including voluntary substitutes and swaps, flexible scheduling, or lateral transfer and change of job assignments. See 29 C.F.R. � 1605.2(d). With regard to voluntary substitutions or swaps, the Commission has held that the obligation to accommodate requires employers to facilitate the securing of a voluntary substitute. Samuelson v. U.S. Postal Service, EEOC Appeal No. 0120112777 (Feb. 19, 2013). Some ways of doing this are publicizing policies regarding accommodation and voluntary substitution, promoting an atmosphere in which substitutions are favorably regarded, or providing a central file, bulletin board, or other means for making voluntary substitutes available. See Hoffman v. U.S. Postal Service, EEOC Appeal No. 01A01092 (June 29, 2001), req. to recon. den., EEOC Request No. 05A10911 (Nov. 16, 2001).
In this case, it is undisputed that agents' duty schedules were publicized to employees well in advance, usually on a quarterly basis. It is also undisputed that Complainant occasionally was scheduled to work on the Sabbath based on a rotating alphabetical system. It is undisputed that management freely allowed Complainant to arrange swaps with coworkers so that she would not work during her Sabbath. Further, it is undisputed that Complainant never worked on the Sabbath during the relevant time period. Additionally, there is no evidence that Complainant expressed to management any difficulty in finding employees who would substitute with her when she was scheduled to work during the Sabbath.
As such, we find that the Agency promoted an atmosphere that facilitated substitutions that prevented Complainant from working on her Sabbath. In so finding, we note that, in this case, Complainant did not assert that asking others to work on her Sabbath violated her faith. Hyde v. Dep't of Homeland Security, EEOC Appeal No. 0720110003 (Jan. 6, 2003) (agency failed to reasonably accommodate religious beliefs where Complainant informed Agency of his belief that asking others to work on Sabbath violated his faith). Consequently, we find that the AJ properly found that Complainant failed to show that the Agency denied her a reasonable accommodation for her religious beliefs (claim 1).
Claim 2
As an initial matter, we note that on appeal, Complainant contends that her claim that she was denied requested accommodations because of her pregnancy should only be analyzed under Title VII, not the Rehabilitation Act. Essentially, Complainant alleges that the Agency subjected her to disparate treatment in violation of the Pregnancy Discrimination Act.
In this regard we note that, as pregnancy in general is not considered a disabling condition and Complainant does not assert disability discrimination, we need not analyze this claim as such. Rather the claim is properly analyzed as a violation of Title VII.
Title VII of the Civil Rights Act of 1964 forbids a covered employer to "discriminate against any individual with respect to ... terms, conditions, or privileges of employment, because of such individual's ... sex." 78 Stat. 253, 42 U.S.C. � 2000e-2(a)(1). In 1978, Congress enacted the Pregnancy Discrimination Act, 92 Stat. 2076, which added new language to Title VII's definitions subsection. The first clause of the 1978 Act specifies that Title VII's "ter[m] 'because of sex' . . . include[s] . . . because of or on the basis of pregnancy, childbirth, or related medical conditions." � 2000e(k). The second clause states:
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.
The U.S. Supreme Court recently held that complainants can prove violations of the Pregnancy Discrimination Act either by presenting direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or by using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792. See Young v. United Parcel Service, Inc., 575 U.S. ___, 135 S.Ct. 1338 (2015). In this case, there is no direct evidence of discrimination. Therefore, under the McDonnell Douglas framework, the plaintiff has "the initial burden" of "establishing a prima facie case" of discrimination. McDonnell Douglas, at 802. An individual pregnant worker who seeks to show disparate treatment may establish a prima facie case under the McDonnell Douglas framework by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others "similar in their ability or inability to work." Young, 575 U.S. at ___, 135 S.Ct. at 1354.
If she carries her burden of establishing a prima facie case, the employer must have an opportunity "to articulate some legitimate, non-discriminatory reason[s] for" the difference in treatment. Id. If the employer articulates such reasons, the plaintiff then has "an opportunity to prove by a preponderance of the evidence that the reasons ... were a pretext for discrimination." Id.; see also Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 253.
In this case, for purposes of analysis and without so finding, we assume that Complainant established a prima facie case of discrimination. Nevertheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, management stated that Complainant was not transferred to the downtown Cleveland office because she failed to submit requested medical documentation that would explain a medical need for the transfer, or any other accommodations. Regarding Complainant's request to have the IMAGE program transferred to another agent, GS2 stated that he advised Complainant that performance appraisals could be changed throughout the year, and he would work with her regarding the goals.
In an attempt to prove pretext, Complainant alleges that an employee in a wheelchair rarely reported to work and did not take leave; an employee was allowed temporary duty in Florida because of his mother's health; a Special Agent was provided with a temporary duty assignment for one year; a Special Agent was permitted to work with a task force in the Strongsville area; and an agent was allowed to work out of the U.S. Attorney's office in Toledo, Ohio. The mere fact that other Agency employees were permitted to work from other locations does not undermine the Agency's explanation for its actions.
Complainant requested accommodation for a medical issue and, as such, was instructed to submit medical documentation in support of her request, per Agency policy. Complainant has not shown that she was instructed to provide medical documentation while other, non-pregnant employees requesting accommodation for a medical issue were not, which is the gist of the Court's decision in Young. Complainant argues that the cited comparators were not required to provide medical documentation. We note, however, that there is no evidence that the cited comparators either requested transfers for medical reasons or that, if they did, they declined to provide the requested documentation. We further note that Complainant's need for a transfer from downtown Cleveland to Strongsville and reassignment of the IMAGE program was not apparent or obvious. It was therefore reasonable for the Agency to ask for documentation to substantiate her requests. In view of the foregoing, we find that Complainant has not provided sufficient evidence from which it could reasonably concluded that the Agency's non-discriminatory explanations are pretext for unlawful discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that this case presented no genuine issues of material fact, such that summary judgment was appropriate; that while Complainant's religious accommodation claim in fact was timely raised, she nevertheless has not established that the Agency failed to accommodate her religious observance; and that Complainant has not established that the Agency discriminated against her on the basis of pregnancy when it denied her requests for a transfer between offices and to remove a project from her responsibility. Accordingly, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 22, 2015
Date
2
0120150264
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120150264