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: