01970096
11-27-1998
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