01975192
08-27-1999
Kelly A. Hormanski, Appellant, v. Richard J. Danzig, Secretary, U.S. Department of the Navy, Agency.
Kelly A. Hormanski, )
Appellant, )
) Appeal No. 01975192
v. ) Agency No. 95-65923-049
) Hearing No. 140-96-8075X
Richard J. Danzig, )
Secretary, )
U.S. 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 bases of race (white), sex
(female), and mental disability (stress), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.
Appellant alleges she was discriminated against when she was required
to submit to the procedures for requesting an exemption from night-shift
rotation set forth in NAVAVNDEPOTNOTICE 12335 dated January 6, 1995.<1>
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 Worker, Naval Aviation
Depot, at the agency's Cherry Point, North Carolina facility, filed a
formal EEO complaint with the agency on August 28, 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 facts of the case are not disputed. Appellant is a single parent of
a five year old daughter. In the fall of 1994, appellant was transferred
to the agency's Cherry Point facility. As she was new to the area and
did not know any babysitters, in January 1995, she asked her second
level supervisor (S2)(white male, no disability) for an exemption from
working the night shift. S2 advised appellant that it was standard
practice for the agency and union to approve two 90-day exemptions,
which carried appellant through the school year. In February or March
1995, appellant asked her first level supervisor (S1)(white male, no
disability) for an exemption �until she and her daughter were released
from counseling or her child reached the age of majority.�<2> S1 asserted
that appellant's request was approved for one year. Appellant then
made a third request through her third level supervisor (S3)(white
male, no disability). S3 testified that he denied appellant's request
because she had not submitted updated medical documentation supporting
her request. Soon thereafter, the newly established hardship committee,
defined in NAVAVNDEPOTNOTICE 12335, reviewed S3's denial of appellant's
exemption request. The hardship committee approved appellant's request
for an exemption. Appellant has not worked the night shift since she
was transferred to the facility.
The AJ concluded that appellant failed to establish a prima facie
case of discrimination because she failed to establish that she had
been treated differently than similarly situated employees not in her
protected classes. Although appellant avers that other males were
granted longer exemptions, and did not have to submit documentation,
she cited individuals who agency officials were not familiar with.
With respect to the only two comparatives cited by appellant that agency
officials were familiar with, Comparative 1 (male) had neither requested
nor received an exemption. Comparative 2 (male) had received a six-month
exemption as a single parent, but was later returned to the rotation.
As for her allegation of discrimination on the bases of disability,
the AJ found that appellant had failed to demonstrate that she has
a mental disability that substantially limits a major life activity.
Specifically, the AJ found that appellant's hardship was based on her
failure to have adequate child care. However, as the record did not
contain medical documentation which supports appellant's allegation
that she suffered from an impairment, the AJ found that appellant did
not have a disability within the meaning of the Rehabilitation Act.
In sum, the AJ found that appellant was not discriminated against,
as alleged. On May 2, 1997, the agency issued a final decision adopting
the AJ's finding of no discrimination. 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 failed to
present any evidence which would raise an inference of discrimination
and ultimately failed to establish, with sufficient evidence, that the
hardship procedures were applied disparately on any protected basis.
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:
8/27/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1Appellant also alleged in her complaint
that she was discriminated against when the agency failed to
accommodate her disability. However, she later withdrew this issue
in her affidavit and has not raised it on appeal. As such, this
decision will not address this issue.
2Appellant and her daughter were enrolled in �parenting� counseling,
as her daughter was experiencing stress from the move to North carolina.