Daliah L. Pleva v. United States Postal Service 01A01471 September 19, 2002 . Daliah L. Pleva, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 01A01471 Agency No. 1-D-251-0031-97 Hearing No. 170-98-8255X DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts the complainant's appeal in the above-entitled matter. The issue on appeal is whether complainant has established that the agency discriminated her based on sex (female) when it terminated her transitional employment earlier than required because she was pregnant. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to reverse the agency's final order, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was proven by a preponderance of the evidence, is supported by the record. In addition, we find that the remedy as previously provided by the Administrative Judge is appropriate and have incorporated it into our Order below. ORDER The agency is ORDERED to take the following remedial action within sixty (60) calendar days of the date this decision becomes final, unless otherwise noted: (1) The agency shall amend all agency records to reflect that complainant was an agency employee until December 2, 1997, the last day that transitional employees were employed at the facility. (2) The agency shall determine the appropriate amount of back pay, with interest; overtime pay, if any, with interest; and other benefits due complainant, pursuant to 29 C.F.R. § 1614.501, less any appropriate offsets. The time period for calculation purposes shall be from June 23, 1997, the day that complainant was terminated, to September 2, 1997, the day complainant planned to leave work due to her pregnancy. The complainant shall cooperate in the agency's efforts to compute the amount of back pay, overtime pay and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay, overtime pay and/or benefits, the agency shall issue a check to the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The complainant may petition for enforcement or clarification of the amount in dispute. The petition for enforcement or clarification must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission's Decision.” (3) The agency shall pay complainant compensatory damages in the amount of $1,000<1> for non-pecuniary damages, less any non-pecuniary damages already paid. (4) The agency shall pay complainant's reasonable attorney's fees and costs, if applicable, in accordance with the paragraph below entitled, “Attorney Fees.” (5) The agency is further directed to submit a report of compliance, as provided in the paragraph entitled “Implementation of the Commission's Decision.” The report shall include supporting documentation of the agency's actions in compliance with this Order. POSTING ORDER (G0900) The agency is ordered to post at its Charleston, West Virginia facility copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0900) If complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (R0900) 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 September 19, 2002 __________________ Date 1See Gross v. U. S. Postal Service, EEOC Appeal No. 01980733 (November 19, 1999) ($750 award for non-pecuniary damages where the agency issued complainant a Notice of Removal that was later reduced to a 14-day suspension, which resulted in emotional distress); Hart v. U.S. Postal Service, EEOC Petition No. 04990023 (March 31, 2000) ($1000 award for non-pecuniary damages where the agency issued complainant a 14-day suspension, which resulted in mental anguish, loss of enjoyment of life, injury to character, stress, depression, and humiliation).