0520090393
07-02-2009
Frank Baiamonte, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frank Baiamonte,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520090393
Appeal No. 0120071800
Agency No. 4F852017205
DENIAL
Complainant timely requested reconsideration of the decision in Frank
Baiamonte v. United States Postal Service, EEOC Appeal No. 0520090393
(March 26, 2009). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
In the underlying case, complainant alleged he was discriminated against
based on his race (White), color (white), sex (male), religion (Catholic),
age (DOB:5/27/1963), national origin (Italian), and in reprisal for prior
EEO activity when: (1) continuing from May 31,2003, the terms of his
contract have been enforced while the contracts of other contractors
have not been enforced; and (2) on September 8, 2005, complainant's
contract was terminated. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an
EEOC Administrative Judge or alternatively, to receive a final decision
by the agency. Complainant requested that the agency issue a final
decision. In its final decision, the agency concluded that management
had articulated legitimate, non-discriminatory reasons for its actions
and that complainant failed to show that these reasons were pretext to
mask unlawful discrimination. Complainant appealed the agency's decision
to the Commission. In Baiamonte v. United States Postal Service, EEOC
Appeal No. 0120071800 (March 26, 2009), the Commission affirmed the
agency's final decision. Complainant now requests that the Commission
reconsider its decision.
In his request for consideration, complainant argues that he established
by a preponderance of the evidence that he was subjected to discrimination
and retaliation. The Commission notes, however, that this argument
is merely an expansion of the argument raised on appeal in the prior
decision. We remind complainant that a "request for reconsideration is
not a second appeal to the Commission." Equal Employment Opportunity
Management Directive 110 for 29 C.F.R. Part 1614 (Nov. 9, 1999), Chapter
9.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. Complainant failed to present any argument or evidence that
would establish that the prior decision involved a clearly erroneous
interpretation of material fact or law. The decision in EEOC Appeal
No. 0120071800 remains the Commission's decision. There is no further
right of administrative appeal on the decision of the Commission on this
request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 2, 2009
Date
2
0520090393
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520090393