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The complete facts are set forth in the district court's opinion at Mays v. U.S. Postal Service,

928 F.Supp. 1552 (M.D.Ala.1996). 

United States Court of Appeals,

Eleventh Circuit.

No. 96-7010

Non-Argument Calendar.

Elaine M. MAYS, Plaintiff-Appellant,

v.

UNITED STATES POSTAL SERVICE, Marvin T. Runyon, in his individual and official

capacity as Postmaster General, Larry Hall, in his individual and official capacity as Superintendent

of Postal Operations-Auburn Post Office, Dan McLaughlin, in his individual and official capacity

as Postmaster-Auburn Post Office, Defendants-Appellees.

Sept. 15, 1997.

Appeal from the United States District Court for the Middle District of Alabama. (No. CV-95-D559-E), Ira DeMent, Judge.

Before ANDERSON and BLACK, Circuit Judges, and CLARK, Senior Circuit Judge.

PER CURIAM:

This is an appeal from the district court's grant of summary judgment to the defendants and

denial of the plaintiff's motion for reconsideration in an action under Title VII of the Civil Rights

Act of 1964. Essentially, the district court found that during the probationary period of her

employment, the plaintiff had not met a requirement necessary for permanent employment and since

she was terminated for that reason, the termination was not discriminatory.1

 The plaintiff filed a

motion for reconsideration and submitted several affidavits in support of her claims, but the district

court denied the motion. For the reasons listed below, we AFFIRM the district court's decisions.

The appellant is a black female who was hired by the Postal Service as a part-time flexible

carrier and was required to undergo a ninety-day probationary period, during which she was subject

to discharge at any time. During the probationary period, her supervisors evaluated her performance

at regular intervals. One requirement for permanent employment consisted of casing at least five

linear feet of segmented mail per hour. When the appellant had not met the performance
 2

The district court correctly found that Title VII provides the exclusive remedy for the

appellant's claims of discrimination in federal employment, and dismissed all of her claims other

than those brought under Title VII. See Brown v. General Services Administration, 425 U.S.

820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976). 

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requirement for casing segmented mail after 60 days' employment, her immediate supervisor

recommended that she be terminated. The Postmaster decided to give appellant additional time and

training on the casing of segmented mail in order to enable her to meet the requirement. The

appellant never met the requirement, although she made a total of 21 attempts. The Postmaster made

a final determination at the appellant's 88-day evaluation that she would be terminated.

Two white male employees were also on probationary status at approximately the same time

as the appellant. These individuals met the segmentation casing standard and were retained. One

met the requirement after eight attempts, and the other met the requirement after 11 attempts.

The appellant filed a timely complaint with the EEOC alleging that she had been

discriminated against on the basis of race and sex in connection with her termination. Following

an investigation and hearing, the EEOC affirmed the final agency decision and adopted an

Administrative Law Judge's recommended finding that the appellant had not been discriminated

against in connection with her discharge. The appellant brought this suit seeking relief against

several defendants on numerous causes of action, stating that two white males were given more

training in case segmentation. The district court dismissed all of the claims except the Title VII

claim,2

 and found that the appellant's Title VII claim was unsuccessful because she was terminated

for failure to meet the required standard for case segmentation.

The appellant then filed a motion for reconsideration and submitted her own affidavit and

several affidavits from other postal workers supporting her argument that the standard for the case

segmentation was applied differently to her because of her race and sex. Those affidavits stated that

appellant's supervisor had planned to terminate her regardless of whether she successfully completed

casing, that one of the two white males was having continuous problems since his completion of

probation, and that two of the affiants had not been subject to any standard regarding segmentation
 3

Livernois v. Medical Disposables, Inc., 837 F.2d 1018, 1020 (11th Cir.1988). 

 4American Home Assurance Co. v. Glenn Estess & Assoc., Inc., 763 F.2d 1237, 1238-39 (11th

Cir.1985). 

 5

O'Neal v. Kennamer, 958 F.2d 1044, 1047 (11th cir.1992) ("Motions to amend should not be

used to raise arguments which could, and should, have been made before the judgment was

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during their probationary period with the Postal Service. The district court denied the motion for

reconsideration.

On appeal, the appellant argues that the district court erred in granting summary judgment

to the defendants because the evidence showed that the defendants discriminated against her in

giving her less training in case segmentation than was given to the white male trainees. She also

argues that the district court failed to consider the evidence she submitted in her motion for

reconsideration.

 The record does not support the appellant's argument that she received less training in case

segmentation than the two white male trainees. The record shows that she received twice as much

training for case segmentation than either of the two white males, but failed to achieve the goal

necessary for permanent employment, and that both of the white males achieved the goal. The

district court did not err in granting summary judgment to the defendant for this reason.

 A post-judgment motion may be treated as made pursuant to either Fed.R.Civ.P. 59 or

60—regardless of how the motion is styled by the movant—depending on the type of relief sought.3

Here, the relief sought was the setting aside of the grant of summary judgment, denial of the

defendant's motion for summary judgment, and trial on the merits of the case. Thus, it is properly

characterized as a Rule 59(e) motion to alter or amend the judgment, rather than a Rule 60 motion

for relief from the judgment. This court will not overturn a denial of a Rule 59 motion absent an

abuse of discretion.4

 In her motion for reconsideration, the appellant presented new evidence that she alleged

created an issue of fact as to her prima facie case. This circuit has held that a motion to reconsider

should not be used by the parties to set forth new theories of law.5 Other circuits hold that parties
issued."); see also, Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir.1990). 

 6See, e.g., Morgan v. Harris Trust & Sav. Bank of Chicago, 867 F.2d 1023, 1028 (7th

Cir.1989); Engelhard Indus. v. Research Instrumental Corp., 324 F.2d 347, 352 (9th Cir.1963),

cert. denied, 377 U.S. 923, 84 S.Ct. 1220, 12 L.Ed.2d 215 (1964) (on a motion to reconsider a

party is "obliged to show not only that this evidence was newly discovered or unknown to it until

after the hearing, but also that it could not have discovered and produced such evidence at the

hearing.") 

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cannot introduce new evidence post-judgment unless they show that the evidence was previously

unavailable.6 We join those circuits in holding that where a party attempts to introduce previously

unsubmitted evidence on a motion to reconsider, the court should not grant the motion absent some

showing that the evidence was not available during the pendency of the motion.

The appellant failed to allege, much less show, that she could not have submitted the

affidavits attached to her motion for reconsideration any earlier. Because the evidence was not

timely submitted, and no showing was made that the evidence could not have been presented

previously, the district court correctly denied the motion for reconsideration. We affirm the district

court's judgment.

AFFIRMED.