Rose M. Dorroh, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionNov 30, 2000
01a00670 (E.E.O.C. Nov. 30, 2000)

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.