Bret Lowery, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, ( , Affairs, Agency.

Equal Employment Opportunity CommissionNov 27, 1998
01970096 (E.E.O.C. Nov. 27, 1998)

01970096

11-27-1998

Bret Lowery, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, ( , Affairs, Agency.


Bret Lowery v. United States Postal Service

01970096

November 27, 1998

Bret Lowery, )

Appellant, )

)

v. ) Appeal No. 01970096

) Agency No. 4A-100-1063-95

) Hearing No. 160-96-8586X

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

( ), )

Affairs, )

Agency. )

______________________________)

DECISION

INTRODUCTION

On September 27, 1996, Bret Lowery (appellant) timely filed an appeal to

the Equal Employment Opportunity Commission (the Commission or the EEOC)

from a final decision of the Postal General, United States Postal Service

( ). The final decision concerns appellant's Equal Employment

Opportunity (EEO) complaint, alleging discrimination in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq. The appeal is accepted by the Commission in accordance

with the provisions of EEOC Order No. 960.001.

ISSUE PRESENTED

Whether appellant was discriminated against on the basis of sex (male)

when, on April 3, 1995, his request for a two-hour change of schedule

was denied.

CONTENTIONS ON APPEAL

Appellant submits contentions on appeal which have been reviewed and

considered by the Commission.

BACKGROUND

Appellant filed a formal EEO complaint on June 6, 1995, alleging

discrimination as set forth in the above-entitled statement, "Issue

Presented." Following an investigation of this complaint, the agency

informed appellant that he could request either an EEOC administrative

hearing or a final agency decision (FAD), based on the existing record.

Appellant requested an EEOC hearing. On August 15, 1996, the A

notified the paties of her proposal to issieu a recommended decision

(RD), without a heairng, because there were no issues of materal fact in

dispute. The parties had fifteen (15) days to respond to this proposal.

After reviewieng appellant's reposne to the proposal for summary judgment,

the A determined that summary judgment was appropriate in appellant's

case Therefore, on September 3, 1996, the A issued her RD, which found

no discrimination. On September 9, 1996, the agency issued a final agency

decision (FAD), which adopted the AJ's RD. Appellant now appeals the FAD.

The AJ found that appellant failed to establish a prima facie case of sex

discrimination. In this regard, the A determined that appellant failed

to show that there were simiarly siatued individual(s) who were treated

more favorably than appellant under essentially the same circumstances.

More specifically, the A stated that the female employees cited by

appellant as being treated more favorably did not have the same supevisor

as appellant and were on a different tour.

ANALYSIS AND FINDINGS

The Commission has reviewed the record, consisting of the investigative

report and exhibits, the RD, the FAD, and appellant's contentions on

appeal. The Commission concludes that the AJ accurately set forth the

facts giving rise to the complaint and the law applicable to the case.

The Commission further concludes that the AJ correctly determined that

appellant had not established, by a preponderance of the evidence, that

the agency discriminated against him as alleged. Appellant's superivosr

(S-1) tesitfied that appellant's request was denied becasue management had

establiehd a starting time based on the need of the service. S-1 stated

that caxse routers, such as appellant, were needed between the hours of

6:30 am and 8:30 am to assist with the advancement of first-class mail.

Appellant submitted no evidence which proves, by a preonderance of hte

evidence, that these reaosns are pretextual. In addition, we agree with

the A that the female comparative employees cited by appellant were not

simiarly siatued to appellant. Accordingly, the Commission herein adopts

the AJ's recommended findings of fact and conclusions of law.

CONCLUSION

Therefore, based on a thorough review of the record, and for the foregoing

reasons, it is the decision of the Equal Employment Opportunity Commission

to AFFIRM the agency's final decision and find that appellant has failed

to prove, by a preponderance of the evidence, that she was discriminated

against as alleged.

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. �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 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. 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:

Nov 27, 1998

______________ ________________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations