01975464
01-29-1999
______________________________ Simuel Toole, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region),) Agency.
Simuel Toole, Jr. v. United States Postal Service
01975464
January 29, 1999
______________________________
Simuel Toole, Jr., )
Appellant, )
)
v. )
) Appeal No. 01975464
William J. Henderson, ) Agency No. 1-I-531-1141-95
Postmaster General, ) Hearing No. 260-97-9067X
United States Postal Service, )
(Great Lakes/Mid West Region),)
Agency. )
______________________________)
DECISION
On July 3, 1997, Simuel Toole, Jr. ("appellant") timely appealed a final
agency decision ("FAD"), dated May 27, 1997, concluding he had not been
discriminated against in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleged that the
agency discriminated against him on the bases of his race (Black), and sex
(male), when he was not selected for a Custodian position. This appeal
is accepted in accordance with the provisions of EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that, during the relevant time, appellant was employed
by the agency as a Transitional Employee in Milwaukee, Wisconsin.
Appellant requested career employment with the agency through the
Veterans' Readjustment Appointment Authority ("VRA"). Under the VRA,
a VRA eligible transition employee, who has worked successfully for
at least sixty days and meets all qualifications of a position, can
be noncompetitively placed into a career position with the agency.
On April 14, 1995, appellant became aware that another employee had been
hired for a Custodian position for which he had applied.
Believing that he was the victim of discrimination, appellant sought
EEO counseling and, thereafter, filed a formal EEO complaint on April 9,
1996. 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).
Determining that there was no genuine dispute of material fact, the
AJ issued a Recommended Decision ("RD") Without a Hearing, pursuant to
29 C.F.R. �1614.109(e)(3), finding no discrimination. In her RD, the
AJ concluded that appellant failed to establish a prima facie case of
race or sex discrimination. Specifically, the AJ found that appellant
failed to show that he was qualified for the position.<1> The AJ then
found that appellant had not produced evidence demonstrating that the
agency's articulated reasons were pretext for unlawful discrimination.
In its FAD, the agency adopted the RD. It is from this decision that
appellant now appeals.
After a careful review of the record in its entirety, the Commission finds
that the AJ's RD sets forth the relevant facts and properly analyzes the
appropriate regulations, policies and laws. The Commission finds that
appellant failed to present evidence to demonstrate that circumstances
surrounding the agency's action give rise to an inference of race or
sex discrimination. Therefore, after a thorough review of the evidence
of record, including arguments and evidence not specifically addressed
in this decision, the Commission discerns no basis to disturb the AJ's
finding of no discrimination. Accordingly, it is the decision of the
Commission to AFFIRM the agency's final decision which adopted the AJ's
finding of no discrimination.
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:
Jan 29, 1999
__________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The agency stated that, in order to qualify for the position, an
applicant must be able to qualify for a Government Operators Permit,
and appellant was ineligible for such a permit because his Wisconsin
Driver's License had been revoked.