Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Area Agency.

Equal Employment Opportunity CommissionMay 20, 1999
01973788 (E.E.O.C. May. 20, 1999)

01973788

05-20-1999

Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Area Agency.


Denise Selsky v. United States Postal Service

01973788

May 20, 1999

Denise Selsky,

Appellant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southeast/Southwest Area

Agency.

Appeal No. 01973788

Agency No. 4H-335-1095-95

Hearing No. 150-95-8529X

DECISION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission or EEOC) from a final agency decision (FAD)

concerning his complaint that the agency discriminated against him on

the basis of sex (female), in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleged

discrimination when on February 12, 1995, the agency denied her request to

have her starting time change from 7:00 a.m. to 6:30 a.m. The Commission

hereby accepts the appeal in accordance with EEOC Order No. 960.001.

For the following reasons, the FAD is AFFIRMED.

At the time of the alleged discriminatory event, appellant was employed

as a letter carrier at the agency's Hilldale Station in Tampa, Florida.

Believing that she was the victim of discrimination, appellant

sought EEO counseling and, thereafter, filed a formal EEO complaint.

The agency accepted the complaint for investigation and complied with

all of our procedural and regulatory prerequisites. Subsequently,

appellant requested a hearing before an EEOC Administrative Judge (AJ),

which was held on December 19, 1996. On January 24, 1997, the AJ issued

a Bench Decision (RD) recommending no discrimination. Thereafter,

the agency adopted the RD and issued a FAD, finding no discrimination.

It is from this agency decision that appellant now appeals. On appeal,

appellant asserts, among other things, that the AJ failed to address

her allegations concerning denial of overtime.

The investigative record reveals that during the relevant time frame

appellant's supervisor (S1) attempted to secure schedule changes for

everyone because he wanted the work day to start earlier. The Manager of

Customer Service, however, did not agree with S1's plan. Accordingly,

no one was permitted an earlier start time, except those individuals

assigned to primarily business routes which had previously established

early start times. Appellant was assigned to a primarily residential

route. Furthermore, only those individuals on the Ten or Twelve-Hour

list were permitted to work overtime on routes other than their own.

Because appellant was on the Work Assignment list, she was only permitted

to work overtime on her own route. In his RD, the AJ concluded that

appellant failed to establish a prima facie case of discrimination

because she failed to present similarly situated comparison employees

that were treated more favorably.

After careful review of the entire record, including appellant's

contentions on appeal, and arguments and evidence not specifically

addressed in this decision, the Commission finds that the AJ's RD

presented the relevant facts, and properly analyzed the appropriate

regulations, policies and laws. We note not only the lack of comparative

evidence, as did the AJ, but also note the lack of any other evidence

which could support an inference of discrimination. The Commission

discerns no basis to disturb the AJ's finding. Accordingly, the FAD is

AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

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 this

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. � l6l4.604(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 this 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 this 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 this 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. 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:

5/20/99

______________ ____________________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations