Danita P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Apr 16, 2019

0120180791 (E.E.O.C. Apr. 16, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Danita P.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120180791

Agency No. 1F-901-0069-17

DECISION

On December 16, 2017, 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
November 22, 2017, 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 Title II of the Genetic Information
Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the
Agency’s Processing and Distribution Center facility in Los Angeles, California.

The record indicated that Complainant returned to work on October 25, 2016, from maternity
leave. She notified her supervisor (Supervisor 1) that she needed a private area for purposes of
pumping her breast milk. Supervisor 1 provided Complainant with a junior manager office to
use as a lactation room. Complainant contended that the junior manager office was not suitable
because she could only use it at the convenience of others and because people could walk up to
the desk, exposing her back and breasts to others.

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.
0120180791

2
Complainant asserted that she informed Supervisor 1 that the junior manager office was not
appropriate. Complainant indicated that Supervisor 1 instructed her to inform others that she
was using the space. Instead of following Supervisor 1’s instruction, Complainant used other
locations such as the locker room and the “Blue Room” for pumping. However, she found that
the locker room lacked privacy and the “Blue Room” was not sufficient because it was “at the
convenience of others.” Complainant did not expand on this explanation.

Subsequently, in March 2017, Complainant also informed another supervisor (Supervisor 2) that
the junior manager office was not sufficient. Supervisor 2 provided Complainant with use of the
nurse’s break room for purposes of pumping.

However, Complainant alleged that because she did not have an appropriate place to pump, her
milk supply was impacted forcing her to give her child formula. Complainant asserted that this
led to her child to become sick.

On June 6, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of sex (female) and genetic information when, from October 25, 2016
onward, management failed to provide Complainant with an appropriate location to pump her
breast milk.

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.

This appeal followed.

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”).
0120180791

3
Genetic Information Claim

As an initial matter, we note that Complainant alleged discrimination based on genetic
information in violation of Title II of the Genetic Information Nondiscrimination Act of 2008
(GINA), 42 U.S.C. § 2000ff et seq., which prohibits employers from discriminating against any
employee because of genetic information with respect to the employee. 29 C.F.R. § 1635.1.
Genetic information means information about (i) an individual's genetic tests; (ii) the genetic
tests of that individual's family members; and (iii) the manifestation of a disease or disorder in
family members of such individual (family medical history). 29 C.F.R. § 1635.3(c).

During the investigation, Complainant was asked what genetic information was in the possession
of management. Complainant did not specify what genetic information she believes was used to
discriminate against her. Complainant referenced management’s knowledge of her pumping
breast milk. The Commission finds that Complainant's complaint is devoid of any allegations or
facts regarding genetic tests, the genetic tests of her family members, or her family medical
history. In the absence of contradicting evidence, we find that to the extent that the Agency had
any knowledge or awareness of Complainant's genetic information, Complainant has not met her
burden of proof to show that such information played a role in any of the incidents at issue
herein.

Reasonable Accommodation for Pregnancy-Related Condition (Lactation)

The Commission has held that a complainant’s status as a nursing mother is protected under the
Pregnancy Discrimination Act (Pub. L. 95-955) (hereafter PDA). See O’Brien v. National Sec.
Agency, EEOC Appeal No. 01951902 (May 27, 1997). The PDA requires that an agency treat
women affected by pregnancy, childbirth, or related medical conditions the same for all
employment related purposes, as other persons not so affected but similar in their ability or
inability to do work. 42 U.S.C. § 2000e(k) (1994).

An employee who is lactating “must have the same freedom to address such lactation-related
needs that she and her co-workers would have to address other similarly limiting medical
conditions.” See EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues,
EEOC Notice 915.003, I (A)(4)(b) (rev. June 25, 2015) (Pregnancy Guidance). Discriminating
against a woman who is lactating or expressing breast milk violates Title VII and the PDA.
EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 430 (5th Cir. 2013). Title VII mandates the
provision of a reasonable accommodation for an employee who is lactating. Gonzales v. Marriott
Int’l, Inc., 142 F. Supp. 3d 961, 978 (C.D. Cal. 2015) (citing Young v. United Parcel Service,
575 U.S. ___, 135 S. Ct. 1338, 1354 (2015)).

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, 135 S. Ct. at 1354.
0120180791

4
An agency may then seek to justify its refusal to accommodate the complainant by relying on
“legitimate, nondiscriminatory” reasons for denying her accommodation. Id. 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, 135 S. Ct.
at 1354.

Here, we find that Complainant has failed to establish a prima facie case of failure to
accommodate her pregnancy-related condition. With respect to the third prong of the prima facie
case, Complainant has failed to establish that the Agency failed to accommodate her because the
preponderance of the evidence in the record establishes that the Agency provided Complainant
with an appropriate space other than a restroom to use to express breastmilk. Complainant
asserted that she informed Supervisor 1 that the room was not sufficient because people could
walk in on her expressing breast milk. We note that Supervisor 1 denies Complainant’s
assertion. However, assuming Complainant’s version is correct, Complainant claimed that
Supervisor 1 instructed her to inform others that the office was in use so they would not enter the
room. Complainant did not indicate that she followed the instruction to inform others that the
junior manager office was in use or occupied. Moreover, there is no evidence in the record that
Complainant returned to Supervisor 1 after the instruction to indicate that the accommodation
was not sufficient.

When Complainant decided to use other locations such as the “Blue Room” instead of the junior
manager office, she was permitted to do so. We note that Complainant alleged that the “Blue
Room” was flawed. However, Complainant did not expand or clearly explain how the “Blue
Room” did not meet her needs. Complainant stated that in March 2017, she informed Supervisor
2 that the junior manager office was not an effective place to express breast milk. At that point,
Supervisor 2 provided Complainant with use of the nurse’s break room. Upon review of the
record as a whole, the preponderance of the evidence in the record establishes that the Agency
adequately accommodated Complainant’s pregnancy-related condition.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision because the
preponderance of the evidence in the record does not establish that discrimination occurred.

0120180791

5
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 (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.
0120180791

6
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

April 16, 2019
Date