- The Washington Times - Monday, April 2, 2001

A recent D.C. Court of Appeals decision limits the rights of women who say they were fired for being pregnant to appeal their cases to the courts.

In essence, the ruling says women must hire their own lawyers to prosecute their Family and Medical Leave Act claims in the courts, rather than necessarily having a right to judicial review after filing a grievance against their employers.

The decision, issued March 15, resulted from a complaint filed by Tappi Small, a D.C. Department of Corrections employee who was terminated while she was on maternity leave. She filed a complaint with the D.C. Office of Human Rights. She said her pregnancy prompted the job termination, which would violate the D.C. Family and Medical Leave Act of 1990.

The D.C. Family and Medical Leave Act gives employees the right to return to their jobs without penalty after taking up to 16 weeks of maternity leave.

The Office of Human Rights investigated her claim but dismissed it without a hearing. The claims examiners found "no probable cause" to believe Mrs. Small had a valid claim.

The director refused to reconsider her claim when she petitioned for a review of the dismissal. Afterward, she appealed to the D.C. Court of Appeals. The court, however, also refused to review Mrs. Small's claim.

The D.C. Court of Appeals is authorized by the D.C. Code to review only "final decisions rendered after a full administrative hearing, but we do not believe the [D.C.] Council intended to authorize appeals to this court of preliminary 'no probable cause' determinations," the appellate court said.

In other words, only if the Office of Human Rights granted Mrs. Small a hearing could she afterward appeal her case to the D.C. Court of Appeals.

Robin Runge, an employment attorney, says the appellate court was merely following the letter of the law in its ruling. The Office of Human Rights was using its "right of discretion" in dismissing Mrs. Small's claim, she says.

"They're supposed to at least do some investigation," Miss Runge says. "They have the right to say they've investigated and there is no probable cause."

A ruling against people who file claims does not end their rights, she says. It merely means they must hire attorneys to represent them in court or represent themselves.

"She can still go find a lawyer," Miss Runge says. "Depending on the specific facts of her case, she still has a claim. That's the way that process is set up."

Sheila Kaplan, the assistant D.C. corporation counsel who represented the Department of Corrections, refused to comment on the case, citing corporation counsel policy.

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