01a00670
11-30-2000
Rose M. Dorroh, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Rose M. Dorroh v. Department of the Air Force
01A00670
November 30, 2000
.
Rose M. Dorroh,
Complainant,
v.
F. Whitten Peters,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A00670
Agency Nos. KHOF 97194
KHOF 97308
KHOF 97346
Hearing Nos. 360-99-8448X
360-99-8847X
360-98-8675X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleges she was discriminated
against on the bases of race (Black), national origin (African-American),
color (black), sex (female), physical disability (cervical problem),
and reprisal (prior EEO activity) when:
(1) on February 3, 1997, complainant hand-delivered a report to the
Inspector General's office addressing an incident which occurred on
January 28, 1997, between complainant and her supervisor, to which she
received no response;
on February 3, 1997, complainant hand-delivered a report to the Security
Police on an incident which occurred on January 28, 1997, to which she
has received no response;
on February 4, 1997, complainant was allegedly sexually/physically
assaulted by an agency Paramedic who broke into her car as she sat in
the parked car;
on February 4, 1997, three Security Police Officers allegedly surrounded
her parked car as she was sexually/physically assaulted by a Paramedic;
on February 5, 1997, an individual from the IG's Office allegedly stated
�Maybe they thought you were going to harm yourself� with respect to
the incident described in (3) and (4);
on February 6, 1997, complainant was allegedly informed during a
telephone conversation with the Fire Chief and Security Police Chief that
a medical emergency had been called into their offices on February 4,
1997;
on January 28, 1997, complainant was told by a physician in the agency's
Medical Clinic that she was not sick but only upset when she complained
of chest pains;
during the week of March 3-7, 1997, complainant was allegedly told by the
Security Police that they would not accept her complaint on February 4,
1997;
on March 28, 1997, complainant allegedly received a letter from the
IG's Office stating that he could not do anything about the complaint
regarding the incident on January 28, 1997;
on March 21, 1997, physicians at the agency's Medical Clinic allegedly
refused to treat complainant;
on March 21, 1997, the agency's Chaplain allegedly refused to help
complainant;
on March 21, 1997, the agency's physicians allegedly violated
doctor-patient confidentiality by calling an official with Defense
Finance and Accounting Service (DFAS) and complainant's supervisor;
on March 21, 1997, an agency physician at the Medical Clinic said that
complainant was medically cleared to return to work on that day, yet
complainant found that this was untrue because he did not even examine
her;
on March 21, 1997, a Clinic Administrator made two erroneous statements
regarding an administrative pass and that a physician directed
complainant to return to work;
on April 1, 1997, an individual from the Office of Special Investigations
(OSI) said that �on February 4, 1997, the Security Police, the Fire
Department, and the people from the [Medical] Clinic thought she was
going to kill herself;� and
on April 4, 1997, a Sergeant with the Security Police allegedly denied
complainant a police escort; however, finally did so after speaking to
a General Counsel Attorney. The Sergeant allegedly said to the General
Counsel Attorney, �I'll send someone over for you - - but not for her,�
referring to complainant.
The record reveals that complainant is a Voucher Examiner, GS-4, for
the DFAS which is based in Ohio. DFAS is a �tenant� on the agency's
Kelly Air Force Base. The Commander of Kelly Air Force Base acted as
the �landlord� to DFAS providing medical, fire, chaplain, and security
services. Complainant filed a formal EEO complaint with the agency on
June 2, 1997, alleging that the agency had discriminated against her as
referenced above. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disability discrimination and retaliation. Specifically, the AJ found
that complainant failed to demonstrate that she is substantially limited
in any major life activity. The AJ noted that complainant's physician
at the Medical Clinic testified that complainant was cleared for work
with no restrictions in June 1994. Further, the physician stated that
complainant could perform the essential functions of her work without
an accommodation and complainant had no impairment which required an
accommodation. As to complainant's claim of retaliation, the AJ found
that there was insufficient evidence to establish that persons involved
with the alleged incidents knew of complainant's prior EEO activity.
The AJ also concluded that complainant established a prima facie case of
sex, national origin, race, and color discrimination because complainant
presented facts that, if unexplained, reasonably give rise to an inference
of discrimination.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that, as
to the claims relating to the IG Office, the agency established that
the IG Office concluded that complainant's report did not warrant an
investigation. As to the events listed on February 4, 1997, the AJ found
that the Security Police and Paramedic acted properly when they found
complainant, unresponsive, in her car with her hand over her heart.
The Paramedic took the keys out of the ignition of complainant's
car as a standard precaution and checked complainant's vital signs.
The Paramedic stopped his examination of complainant when she instructed
him to cease. The AJ determined that complainant was not sexually nor
physically assaulted by the Paramedic nor were there Security Police
Officers surrounding her vehicle. As to the events alleged against
the agency's Medical Clinic Physicians in claims (10) and (13), the AJ
found that the Physicians initially determined that complainant wanted
to discuss a personnel issue rather than any medical situation.<2>
Since complainant did not want to discuss a medical condition, the
Physicians did not treat her and found that she was able to report
to work. The agency's Chaplain also attempted to counsel complainant,
however, complainant became upset when the Chaplain refused to call her
supervisor to allow complainant to not report to work. Accordingly,
the AJ found that neither the Clinic Physicians nor the Chaplain refused
to help complainant. As to the claim against OSI, the AJ found that
the agency articulated a legitimate, nondiscriminatory reason for not
investigating complainant's reports which was that complainant's claims
were within the purview of the IG's Office and not with OSI. Finally, as
to the claims pertaining to a Sergeant with the Security Police who denied
complainant a police escort and said to the General Counsel Attorney,
�I'll send someone over for you - - but not for her,� the AJ accepted
the Sergeant's denial of complainant's allegations. Further the AJ
noted that the Sergeant had only been at the agency facility for about
a month and that there were no standard operating procedures regarding
such a request. Therefore, the AJ determined that the agency articulated
legitimate, nondiscriminatory reasons for its actions.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. In reaching this conclusion, the AJ found
that complainant failed to provide any evidence to establish that the
agency's actions were based on any discriminatory animus. Accordingly,
the AJ determined that complainant failed to establish by preponderant
evidence that the agency discriminated against her as alleged in her
complaint.
The agency's final decision implemented the AJ's decision. Complainant
makes no new contentions on appeal, and the agency requests that we
affirm its final decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.� Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).
A finding that discriminatory intent did not exist is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's race, national origin, color,
sex, physical disability, or her prior EEO activity. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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.
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
November 30, 2000
__________________
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
______________________________
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Complainant wanted to discuss a three-day suspension she received.