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