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The noose made her unfit for duty

civilrightsfed by civilrightsfed
February 4, 2020
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Complainant had originally filed five separate complaints of

discrimination that had been consolidated for a single hearing.  Each of

these complaints concerned various incidents that took place between

1994 and 1996.  The only issue on which discrimination was found was the

scheduling of a fitness-for-duty examination on July 8, 1996.  On January

29, 1996, complainant had reported finding a hangman’s noose in the

container repair room at the facility in question.  She also reported

that she had found a letter with the word, “bomb.”  The supervisor

thought that she was acting paranoid, and, after consulting with the

supervisor-in-charge, decided to send her for a fitness-for-duty exam.

The AJ found that this was sufficient to establish liability on the

basis of perceived disability.  The AJ found that the supervisor’s

statement reflecting his perception of complainant’s mental state was

direct evidence of disability discrimination.  Bench Decision, p. 24

Carolyn M. Honore v. United States Postal Service

01A20869

03-04-03

.

Carolyn M. Honore,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A20869

Agency No. 1G-708-1042-96

Hearing No. 270-98-9115X

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts the complainant’s

appeal from the agency’s final order in the above-entitled matter.

Complainant challenged the agency’s decision to award her $2,015.10 in

compensatory damages, pursuant to the Commission’s order in Carolyn

Honore v. John E. Potter, Postmaster General, United States Postal

Service, EEOC Appeal No. 01A10477 (June 21, 2001).  In that decision,

the Commission found that the agency had discriminated against her on

the bases of gender and perceived disability (perceived paranoia), by

scheduling her for a fitness for duty examination after she reported

two incidents to management.

The Commission ordered the agency to conduct eight hours of training

for the responsible management official, post notice, and conduct

a supplemental investigation on the issue of compensatory damages.

The agency’s compliance report, dated October 3, 2001, indicates that the

supervisor in question was given training on August 20, 2001.  The plant

manager of the facility where the discriminatory act took place posted

the required notice on that same date.  On October 15, 2001, the agency

determined that it was liable for damages in the amount of $2,015.10,

of which $1,000 represented nonpecuniary losses, $727.10 represented

past pecuniary losses, and $288 represented future pecuniary losses.

In her appeal, complainant contends that the amount offered by the agency

was inadequate.

Section 102(a) of the Civil Rights Act of 1991  authorizes the Commission

to award compensatory damages as part of make-whole relief for intentional

discrimination.  42 U.S.C. § 1981a;  West  v. Gibson, 527 U.S. 212,

217 (1999).  To receive an award of compensatory damages, complainant

must demonstrate that she has been harmed as a result of the agency’s

discriminatory actions, and must also establish the extent, nature,

severity, and duration of that harm.  Compensatory and Punitive Damages

Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice

No. 915.002 (July 14, 1992), at 8, 11-12, 14.  Evidence establishing the

necessary causal connection may include statements from complainant and

others, including family members, friends, and health care providers,

concerning any pecuniary and non-pecuniary losses incurred as a result

of the acts at issue in the various complaints.  See generally Carle

v. Department of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993).

Complainant had originally filed five separate complaints of

discrimination that had been consolidated for a single hearing.  Each of

these complaints concerned various incidents that took place between

1994 and 1996.  The only issue on which discrimination was found was the

scheduling of a fitness-for-duty examination on July 8, 1996.  On January

29, 1996, complainant had reported finding a hangman’s noose in the

container repair room at the facility in question.  She also reported

that she had found a letter with the word, “bomb.”  The supervisor

thought that she was acting paranoid, and, after consulting with the

supervisor-in-charge, decided to send her for a fitness-for-duty exam.

The AJ found that this was sufficient to establish liability on the

basis of perceived disability.  The AJ found that the supervisor’s

statement reflecting his perception of complainant’s mental state was

direct evidence of disability discrimination.  Bench Decision, p. 24.

In support of her claim for $100,000 in compensatory damages,

complainant stated that she was suffering because her supervisors

took the position that she was crazy or insane when she reported  the

incidents.  In addition, complainant submitted several reports from a

psychiatrist who treated her.  In a report dated October 2, 2001, Dr. AS

indicated that complainant was diagnosed with major depression with

mood congruent psychosis, and that complainant was permanently disabled,

to the extent that she could no longer work in any job. Appeal Exhibit

(AE) 1.  In another report, dated September 27, 2001, Dr. AS stated:

Her depression has intensified with the job where she is.  It is extremely

stressful for her to function and over the years the relationship

with the staff and the superiors has deteriorated.  Both factors being

her depression and her superior’s relationship issues with her at the

present time has made it difficult for her to function. . . . I am going

to make a strong recommendation to her that she not go to work and to

ask for medical disability as she is completely functionally impaired.

She has been working impaired at least as long as I have know her for

the past six years and possibly for many years prior to that.  I know

the work situation deteriorates her emotional status . . .

AE 2, 4.  Dr. AS proscribed various medications, including Effexor,

Seroquel, Paxil, and Prosac.  AE 2, 3.  In a report dated May 24,

2001, Dr. AS stated that complainant’s job had been a major source of

conflict that had gotten worse over the years.  AE 3.  On the basis of

this evidence, the agency determined that an award of $2,015.10 was

appropriate.  Complainant has not presented any evidence that would

support a higher award.

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 affirm the agency’s final decision

awarding $2,015.10 in compensatory damages to complainant.

ORDER

Unless it has already done so, the agency shall issue a check to

complainant in the amount of $2,015.10.  The agency is further directed

to submit a report of compliance, as provided in the statement entitled

“Implementation of the Commission’s Decision.”  The report shall include

supporting documentation verifying that the corrective action has been

implemented.

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

___03-04-03_______________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed.  I certify

that this decision was mailed to complainant, complainant’s representative

(if applicable), and the agency on:

__________________

Date

______________________________

Equal Opportunity Assistant

 

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