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Elia Viveros v. Patrick R. Donahoe

November 30, 2012

ELIA VIVEROS, PLAINTIFF,
v.
PATRICK R. DONAHOE, POSTMASTER GENERAL, DEFENDANT.



The opinion of the court was delivered by: Margaret M. Morrow United States District Judge

FINDINGS OF FACT AND CONCLUSIONS LAW

This action was tried to a jury from May 29 to June 1, 2012. On June 1, the jury returned a verdict for plaintiff Elia Viveros on her claim for pregnancy discrimination in violation of Title VII, as modified by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k).*fn1 The jury awarded Viveros $225,000 in damages for emotional distress.*fn2 On June 12, 2012, the parties stipulated 18, 2012, the parties filed a stipulation and a joint statement regarding damages, setting forth the areas on which the parties agreed and the areas of disagreement concerning what further damages were appropriate.*fn3 The parties subsequently filed a stipulation stating that there were no issues of fact remaining in the matter, and that the remaining issues regarding damages could be resolved on the basis of the papers provided.*fn4 Having considered the evidence, the arguments of counsel, and the record in this action, the court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

I. FINDINGS OF FACT

A. Background

1. At trial, Viveros argued that she was wrongfully terminated because she experienced a high-risk pregnancy that required her to be on bedrest and not to work.*fn5 The parties agree that Viveros became a full-time, career employee of the United States Postal Service in September 2000.*fn6 At the time of her termination, Viveros worked as a "T-6 Carrier Technician" at the Sherman Oaks Post Office.*fn7

2. Viveros was pregnant from late-2008 to mid-2009, and gave birth to her fourth child on May 25, 2012.*fn8

B. Back Pay and Benefits

3. The parties disagree regarding the amount of back pay to which Viveros is entitled. Viveros contends that back pay should be calculated from May 1, 2009 to the date judgment is entered, while Donahoe contends that back pay should be calculated from May 1, 2009 to May 1, 2012, to account for the time that Viveros would have taken after she gave birth on May 25, 2009.*fn9 They agree, however, that Viveros' gross salary between May 1, 2009 and May 1, 2012 is $159,700.*fn10 They also agree that Viveros' gross salary between May 2, 2012 and July 18, 2012 (the date the stipulation was filed) is $11,400, based on a salary of $150 per day.*fn11

4. The parties agree that, in addition to receiving her gross pay, Viveros would have worked

5.47 overtime hours per pay period between May 1, 2009 and the date of entry of judgment.*fn12 They agree that her overtime pay would have been $3,787 from May 1, 2009 to May 1, 2010, $3,894 from May 1, 2010 to May 1, 2011, and $4,001 from May 1, 2011 to May 1, 2012.*fn13 The parties also agree that Viveros' overtime from May 1, 2012 to the date the court enters judgment would have been $790.*fn14

5. Prior to her termination, Viveros was enrolled in the Federal Employees Health Benefits Program; the bi-weekly health insurance premiums were jointly paid by Viveros and the Postal Service.*fn15 Viveros was enrolled in the Blue Cross and Blue Shield Service Benefits Plan under its "Standard Family" option.*fn16 The parties agree that, between May 1, 2009 and July 18, 2012, Viveros' fringe benefit award, if any, should be predicated on a biweekly premium of $603.*fn17 During that time, the Postal Service would have paid 76% of the bi-weekly premium ($460) and Viveros would have paid the remaining 24% ($143).*fn18

The parties agree that, if the court finds premiums recoverable between May 1, 2009 and July 18, 2012, the portion of the monthly health insurance premiums that the Postal Service would have paid on Viveros' behalf would total $38,640.*fn19

6. Similarly, with regard to Viveros' life insurance benefits, the parties agree that, prior to her termination, Viveros was enrolled in the Federal Employees' Group Life Insurance ("FEGLI") Program; her life insurance premiums were paid by the Postal Service.*fn20

Viveros was enrolled in the "S0 -- Basic 4x Option B" option.*fn21 The parties agree that, between May 1, 2009 and July 18, 2012, Viveros' fringe benefit award, if any, should be predicated on an annual contribution by the Postal Service of $72 ($6 per month).*fn22

Between May 1, 2009 and July 18, 2012, the portion of monthly FEGLI premiums that the Postal Service would have paid on Viveros' behalf would have totaled $235.*fn23

7. Viveros contends that she is entitled to recover an hourly wage for the sick hours that she was unable to take, and that alternatively, she should be awarded a credit for the 332 sick leave hours she would have accrued had she remained employed by the Postal Service.*fn24

The parties agree that Viveros would have accrued 312 sick leave hours between May 1, 2009 and May 1, 2012,*fn25 and 20 hours between May 2, 2012 and July 18, 2012.*fn26 The Postal Service does not "cash out" sick leave upon an employees' separation from the agency.*fn27

8. Viveros had accrued 171.42 hours of sick leave at the end of 2006, 7.46 hours at the end of 2007, and 16 hours at the end of 2008.*fn28

9. Viveros contends that she is entitled to recover an hourly wage for annual leave hours she was unable to take.*fn29 Alternatively, she asserts that she is entitled to a credit for the annual leave hours she would have accrued.*fn30 The parties agree that Viveros would have accrued 160 hours of annual leave from May 1, 2009 to May 1, 2010, 160 hours from May 1, 2010 to May 1, 2011, 160 hours from May 1, 2011 to May 1, 2012, and 30 hours from May 2, 2011 to July 18, 2012.*fn31 Donahoe concedes that the Postal Service does "cash out" annual leave upon an employee's separation from the agency.*fn32

10. Viveros had 16.07 hours of annual leave left at the end of 2006, -18 hours at the end of 2007, and 0 hours at the end of 2008.*fn33

11. Federal employees who are covered under the Federal Employees' Retirement System Retirement System ("FERS") have the opportunity to participate in the Thrift Savings Plan ("TSP"), a retirement savings plan similar to 401(k) plans available to private sector employees.*fn34 The parties agree that Viveros is covered under FERS and was a TSP participant prior to her termination.*fn35 The parties stipulate that, prior to Viveros' termination, she was contributing 10% of her pre-tax salary to her TSP account every two-week pay period.*fn36 The parties agree that, as a FERS employee, Viveros could have received matching contributions from the Postal Service to her TSP account every pay period depending on the amount of gross pay she contributed. The first 3% would have been matched dollar-for-dollar by the Postal Service. The next 2% would have been matched at 50 cents on the dollar. Under this formula, when an employee contributes 5% of her basic pay to a TSP account, the Postal Service makes a contribution equal to 4% of the employee's pay.*fn37 The parties stipulate that as a vested FERS employee, Viveros would have been entitled to an additional automatic 1% gross pay contribution from the Postal Service every pay period whether or not she contributed personally to her TSP account.*fn38 Thus, taking into account the automatic 1% contribution, the Postal Service would have matched Viveros' TSP contributions dollar-for-dollar for the first 5% of her contribution.*fn39 Viveros contends that she is entitled to recover this 5% matching contributions to her TSP accounts from the Postal Service. Donahoe contends that Viveros is entitled to recover only the automatic 1% gross pay contribution the Postal Service would have made ...


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