EEOC Appeal 2020000801

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Irina T.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 2020000801
Hearing No. 510-2015-00450X
Agency No. 1B007001015
DECISION
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 September 20, 2019, 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. For the following reasons, the Commission AFFIRMS the Agency’s final
order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postal Support
Employee Mail Processing Clerk at the Agency’s Detail Mail Distribution Unit, Catano Annex, in
Catano, Puerto Rico.
On February 11, 2015, Complainant informed a Union Steward (US) that she needed a place to
express breast milk. Complainant stated that on February 13, 2015, US discussed the matter with
Complainant’s first-line supervisor (S1). On February 14, 2015, S1 informed Complainant that she
could use US’s office, during the week, and a different office on the weekends. Complainant stated
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.

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that on February 15, 2015, S1 spoke with the Manager of Distribution Operations (MDO), who
stated that the Agency did not have to provide a place to express breast milk, and that Complainant
should use the restroom. Complainant filed a grievance on the matter. Report of Investigation
(ROI) at 58.
On February 26, 2015, a coworker (CW) was making photocopies in US’s office. CW left for a
short period of time and when he returned, he found Complainant in the office, with her back to
him. CW was surprised to see Complainant and quickly closed the door. Complainant stated that
after this incident, she used the restroom to express breast milk. ROI at 99,59.
On March 4, 2015, MDO saw an unaccompanied child in the building and asked how he got in,
and the child pointed to a car in the parking lot. MDO asked the man in the car to identify himself,
and he responded that he was Complainant’s husband. When MDO asked how he got into the
parking lot, he stated that Complainant gave him her beeper. MDO confiscated the beeper and
asked Complainant’s husband to leave the premises. MDO noted that Complainant was not in the
building at the time of this incident. ROI at 125,135-6. On March 8, 2015, S1 conducted a pre-
disciplinary interview with Complainant. During the interview, Complainant stated that the beeper
was in the car that she shares with her husband. Complainant did not respond when asked if she
was aware that she allowed an unauthorized individual to gain access to the parking lot.
Complainant was not issued any discipline for this incident. ROI at 150,80-1.
On March 7, 2015, the Agency settled Complainant’s grievance and agreed to provide two 30-
minute breaks and a clean office, which was already designated, to express breast milk. ROI at 87.
On June 11, 2015, Complainant found the designated office filled with boxes and she took
photographs of the office. Complainant stated that a new supervisor (S2) informed her that the
office was S2’s office; that they would have it cleaned; and that Complainant could continue to
use the office. ROI at 61,102-10.
On May 5, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of sex (female, pregnancy), and in reprisal for prior protected EEO activity
when:
1. 	since February 13, 2015, she was not provided with a reasonable amount of time
and a private, sanitary area to express breast milk; and
2. 	on March 4, 2015, MDO took away her beeper, kicked her husband out of the
employee parking lot, and informed her that she would receive a pre-disciplinary
interview.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
and notice of her right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested a hearing. On June 3, 2016, the Agency filed a Motion for a Decision
Without a Hearing and Complainant replied to the motion on June 20, 2016.

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On April 4, 2018, the AJ issued a decision without a hearing. The AJ determined that Complainant
had not established a prima facie case of discrimination based on sex, or in reprisal for prior EEO
activity, for claim 1 because she was not aggrieved because the Agency granted her request for a
private room to express breast milk. The AJ noted that the incident with CW was an accidental
and isolated event.
For claim 2, the AJ found that Complainant had not established a prima facie case of discrimination
based on sex or in reprisal for prior EEO activity, because there was no evidence that the Agency
acted improperly when it asked Complainant’s husband to relinquish the beeper and leave the
employee parking lot. The AJ also noted that the fact that Complainant was subjected to a pre-
disciplinary interview did not render her aggrieved because the Agency did not subsequently
subject her to personnel action.
However, the AJ assumed, for the purposes of the decision, that Complainant established a prima
facie case of reprisal discrimination when she was subjected to a pre-disciplinary interview and
found 	that 	the 	Agency 	articulated 	a 	legitimate, 	nondiscriminatory reason 	for 	its 	action.
Specifically, Complainant gave her beeper to her husband to access the employee parking lot. The
AJ then found that Complainant had not shown that the Agency’s reason was pretext for
discrimination, and she had not offered an explanation for why it would be proper for an employee
to share a beeper with a non-employee to gain access to the Agency’s employee parking lot.
The AJ concluded that Complainant was not discriminated against based on her sex or in reprisal
for prior EEO activity. The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Complainant appealed the Agency’s final order. The Commission vacated and remanded the
matter because the Agency failed to include a copy of the AJ’s decision with its final order. The
Commission determined that without a copy of the AJ’s decision, Complainant was unable to
argue, with specificity, about the findings and conclusions of the AJ, which the Agency
implemented. Irina T. v. U.S. Postal Serv., EEOC Appeal No. 0120181844 (Sept. 10, 2019). On
September 20, 2019, the Agency issued a new final order, and provided Complainant with a copy
of the AJ’s decision.
CONTENTIONS ON APPEAL
Complainant filed the instant appeal and submitted a statement in support of her appeal.
Complainant argues that S1 provided a sworn statement in support of the Agency’s motion for
summary judgment, which includes facts that were not included in her affidavit. Complainant
asserts that S1 statements are inconsistent and contradictory.
For claim 1, Complainant states that the photos show that the designated area was unacceptable
and that the Agency did not remedy the situation. Specifically, Complainant states that the office
was dirty, had boxes on the floor, included a printer covered in dirt, and had mold on the ceiling.

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Regarding claim 2, Complainant states that other employees are allowed to have family members
drop them off and enter the facilities. Complainant also argues that the Agency changed her shift
against her will, and that she has been subjected to a hostile work environment for years.2
The Agency did not respond to Complainant’s appeal.
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. 	See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual
conclusions 	and 	legal 	analysis 	– 	including 	on 	the 	ultimate 	fact 	of 	whether 	intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chap. 9, § VI.A. (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”).
We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249.
2 We note that this claim was previously adjudicated in a separate EEO complaint in Irina T. v.
U.S. Postal Serv., EEOC Appeal No. 0120180106 (June 19, 2018), reconsideration request denied,
EEOC Request No. 0520180507 (Oct. 5, 2018). In addition, the Commission has held that it is
not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v.
Dep't of Homeland Security, EEOC Appeal No. 01A40449 (Apr. 22, 2004). We note that
Complainant raises a hostile work environment claim for the first time on appeal, which we will
not address in the instant decision.

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At the summary judgment stage, the judge must believe the non-moving party’s evidence and must
draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact”
is one that a reasonable judge could find in favor for 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
“material” fact has the potential to affect the outcome of a case.
An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, Complainant has not
presented any arguments or evidence showing that there are any material facts in dispute
Ultimately, the AJ correctly determined that there are no genuine issues of material fact or
credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was
appropriate.
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). 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. Heidi B. v. Department of Health and Human Services, EEOC Appeal No.
0120171750 (Feb. 28, 2019) (citing 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))).
request for reconsideration denied, EEOC Request No. 2019002792 (June 25, 2019).
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.

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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 did not establish that the Agency failed to accommodate her because the record
showed that after it learned of Complainant’s request, the Agency provided Complainant with an
appropriate space, other than a restroom, to use to express breast milk.3
S1 stated that when she learned of Complainant’s request for a room to express breast milk, she
discussed the matter with MDO. While S1 and MDO worked to identify an appropriate location,
S1 and US agreed to allow Complainant to use the union office. S1 stated that they then designated
a supply room for Complainant’s use. In June 2015, S2 arrived and claimed the supply room as
her office. While the supply room was cleaned and painted, Complainant was allowed to use
another office. ROI at 148-9. Complainant resumed using S2’s office after it was cleaned and
painted.
On appeal, Complainant argues that the office was dirty, had boxes on the floor, included a printer
covered in dirt, and had mold on the ceiling. However, we find that the Agency acted quickly to
address Complainant’s concerns. As noted by Complainant, S2 responded that the office would be
cleaned when Complainant complained about the conditions. ROI at 61. Complainant filed a
grievance on June 12, 2015, which was settled on June 15, 2015, and the Agency agreed to paint,
clean, and organize the office. ROI at 93. S1 added that Complainant was provided use of MDO’s
office while the office was cleaned. ROI at 156. In her supplemental declaration submitted with
the Agency’s motion for a decision without a hearing, S1 confirmed that once S2’s office was
cleaned and painted, Complainant resumed use of the office. We also note that there is no evidence
that 	Complainant 	alerted 	any management 	official 	that 	the 	office 	was 	not 	an 	effective
accommodation, after it was cleaned. See Heidi B. v. Dep’t of Health and Human Services, EEOC
Appeal No. 0120171750 (Feb. 28, 2019), reconsideration request denied, EEOC Request No.
2019002792 (June 25, 2019).
In addition, we find that Complainant did not show that the Agency accommodated other
employees with different offices. Accordingly, we find that Complainant has not shown that the
Agency failed to accommodate her pregnancy-related condition.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 	Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
3 After CW accidentally walked in on Complainant on February 26, 2015, Complainant stated that
she used the restroom because she was scared to use US’s office, until the Agency made a room
available on March 7, 2015. ROI 59. However, we note that there is no indication that US’s office
was not available to Complainant, and that she chose not to use it.

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For Complainant to prevail, she must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. 	McDonnell
Douglas, 411 U.S. at 802 n.13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). 	Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. 	Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). 	If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. 	At all times, Complainant retains the burden of
persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
her sex and in reprisal for prior EEO activity, we find that the management officials proffered
legitimate, nondiscriminatory reasons for their actions. As described above, the Agency responded
to Complainant’s requests in claim 1. Regarding claim 2, MDO stated that the parking lot is only
to be utilized by employees and contractors, and that “unknown” individuals need to be escorted.
ROI at 126. S1 stated that an Agency beeper is non-transferable and that Complainant’s husband,
who is not an Agency employee, was not authorized to possess the beeper. ROI at 151.
Complainant 	has 	not 	shown 	that 	the 	proffered 	reasons 	were 	pretext 	for 	discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer's
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir.2000) (internal
quotation marks omitted); see McDonnell Douglas, 411 U.S. at 804-05.
On 	appeal, 	Complainant 	argues 	that 	S1 	provided 	statements 	that 	were 	inconsistent 	and
contradictory, but she did not specify the inconsistencies or contradictions, nor provide any
evidence to support her assertion. In addition, Complainant argues that other employees are
allowed to have family members drop them off and enter the facilities. However, we note that
Complainant’s situation specifically involved her family members on the Agency’s premises,
unaccompanied by Complainant. As such, we find that Complainant has not shown that the
Agency discriminated against her based on her sex or in reprisal for prior EEO activity.
CONCLUSION
Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing
finding no discrimination.

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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.

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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
September 16, 2020
Date