01973164
03-19-1999
Kelly Hormanski, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Kelly Hormanski, )
Appellant, )
) Appeal No. 01973164
v. ) Agency No. DON-96-65923-014
) Hearing No. 140-96-8152X
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of reprisal (prior EEO activity),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. Appellant alleges she was discriminated
against when: (1) she was denied the opportunity to walk during her
break;(2) she was accused of leaving work early; and (3) she was accused
of unauthorized use of an electric cart while on official business at
the Defense Reutilization and Marketing Office. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that appellant, a Sheet Metal Mechanic at the agency's
Naval Aviation Depot, Cherry Point, North Carolina, filed a formal EEO
complaint with the agency on November 10, 1995, alleging that the agency
had discriminated against her as referenced above. At the conclusion
of the investigation, appellant requested a hearing before an Equal
Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision
(RD) without a hearing, finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case
of retaliation because she failed to demonstrate a causal nexus between
her protected activity and the adverse treatment. In reaching this
conclusion, the AJ noted that a similarly situated employee outside her
protected group was also instructed not to exercise walk during breaks,
and also informed that she had used the electric cart in an unauthorized
manner. The AJ further noted that a supervisor spoke to other employees,
as well as appellant, about leaving work early. The AJ then concluded
that even assuming, arguendo, appellant had established a prima facie
case of retaliation, the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that the instructions not to walk were
based on safety considerations at the facility; appellant's supervisor
spoke to her individually about leaving early, after addressing the
department, because another employee had reported seeing her leave early;
and she was informed of her unauthorized use of the electric cart only
after another employee had reported seeing appellant and a co-worker
with the electric cart in an unauthorized location. The AJ found that
appellant did not present evidence to establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
retaliation. In reaching this conclusion, the AJ found that, as stated
above, a co-worker was also restricted from walking and told her use of
an electric cart was unauthorized. Moreover, appellant did not present
evidence that she and her co-worker were authorized to use the cart in
the area they operated the cart. The agency's FAD adopted the AJ's RD.
Appellant makes no new contentions on appeal, and the agency requests
that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that appellant's prior EEO
activity commenced in May of 1995, with EEO counselor contact, and
culminated with the filing of a formal complaint on August 28, 1995.
In the instant complaint, appellant alleged that the above allegations
were �ongoing and continuous, the most recent date of which is July 18,
1995.� Thus, even assuming, arguendo, that appellant had established
a prima facie case of retaliation given the contemporaneous nature
of the alleged acts of discrimination to her EEO activity, we agree
with the AJ that appellant failed to present evidence that any of the
agency's actions were in retaliation for appellant's prior EEO activity.
We discern no basis to disturb the AJ's finding of no discrimination,
which was based on a detailed assessment of the record. Therefore,
after a careful review of the record, including arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
March 19, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations