01971246
11-27-1998
Walter W. Traylor, Appellant, v. William H. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest) Agency.
Walter W. Traylor v. United States Postal Service
01971246
November 27, 1998
Walter W. Traylor, )
Appellant, )
)
v. )
) Appeal No. 01971246
William H. Henderson, ) Agency No. 4G-770-1728-95
Postmaster General, ) Hearing No. 330-96-8114X
United States Postal Service )
(Southeast/Southwest) )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision concluding that it
had not discriminated against him in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission
accepts this appeal in accordance with EEOC Order No. 960.001.
Appellant filed a formal EEO complaint with the agency alleging that the
agency had discriminated against him on the bases of his race (black),
color (black), and sex (male) when on June 6, 1995, he was placed off
the clock and removed from his position as a transitional employee after
receiving his 80-day evaluation. Following the agency's acceptance of
this complaint, an investigation was conducted. Thereafter, appellant
requested a hearing with an EEOC administrative judge. On June 25,
1996, a hearing was held. Subsequently on June 28, 1996, the AJ issued
a bench decision, wherein she determined that appellant failed to prove,
by a preponderance of the evidence, that the agency discriminated against
him as alleged. The agency subsequently adopted the AJ's recommended
decision in a final agency decision dated October 16, 1996.
In her recommended decision, the AJ concluded that appellant established
a prima facie case of disparate treatment on all bases alleged.
However, appellant ultimately failed to rebut the responsible official's
explanation for not retaining appellant as a permanent employee. The RO
testified that appellant was terminated for his unsatisfactory performance
on the street.
The Commission has reviewed the record, consisting of the investigative
report, hearing transcript, and the AJ's recommended decision. The
Commission concludes that, in all material respects, the AJ accurately
set forth the facts giving rise to the complaint and the law applicable
to the case. We find that the AJ correctly determined that appellant
failed to establish that the agency's legitimate, nondiscriminatory
reason for not retaining him beyond his 80-day probationary was prohibited
discrimination. As appellant offered no additional evidence or statement
in support of his appeal, we discern no reason to disturb the AJ's
recommended decision of no discrimination. Accordingly, we AFFIRM the
final agency decision finding 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. �1614.604(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. 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 (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:
Nov 27, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations