______________________________ Simuel Toole, Jr., Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region),) Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01975464 (E.E.O.C. Jan. 29, 1999)

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.