Dennis Thompson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01986033x (E.E.O.C. Jan. 19, 2000)

01986033x

01-19-2000

Dennis Thompson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Dennis Thompson, )

Complainant, )

)

v. ) Appeal No. 01986033

) Agency No. 1H378001897

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

Dennis Thompson (complainant) timely initiated an appeal to the Equal

Employment Opportunity Commission (EEOC) from the final decision of the

agency concerning complainant's claim that the agency violated Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The

appeal is accepted in accordance with EEOC Order No. 960, as amended.

The issue on appeal is whether the agency discriminated against

complainant on the basis of race (Black) when, on December 24, 1996,

he was informed that he would not be rehired as a casual employee.

Complainant filed a formal EEO complaint raising the issue stated above

and the complaint was investigated. When complainant failed to request

an EEOC hearing, the agency issued a final agency decision (FAD) finding

no discrimination. Complainant now appeals the FAD.

The agency found that complainant failed to establish a prima facie case

of race discrimination. The agency also concluded that complainant did

not prove that the agency's explanation for its action was pretextual.

According to the agency, complainant was recommended for rehire but was

not ultimately chosen because there was a cap on the number of casual

employees the agency could retain. The agency emphasized that three

agency officials testified that the casual employees chosen for rehire

were performing better than complainant during the relevant time period.

On appeal, complainant contends that someone at the agency apparently

didn't want him rehired because of his race. According to complainant,

he was continually overlooked for permanent positions at the agency.

Complainant's complaint constitutes a claim of disparate treatment

and the agency properly analyzed it under the three-tiered analytical

framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);

Texas Dept. of Community Affairs v. Burdine, 450 U.S.248, 253-256 (1981).

Applying these legal standards, the Commission finds that the agency

correctly concluded that complainant failed to prove, by a preponderance

of the evidence, that he was discriminated against based on race. We find

that complainant did not submit evidence which adequately rebutted the

agency's explanation for its action, that other casual mailhandlers were

doing a better job during the relevant time period. We note that, out

of an apparently small number of vacancies, at least two of the casual

mailhandlers chosen for rehire were Black. Accordingly, after carefully

considering the record, including complainant's contentions on appeal,

we find that complainant failed to prove that he was discriminated

against based on his race.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).

The request or opposition must also include proof of service on the

other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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. 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 (Z1199)

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. 19, 2000

DATE Carlton Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on: