0520090507
11-05-2009
Frank Zito, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frank Zito,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520090507
Appeal No. 0120070284
Agency No. 1A102006005
DENIAL
Complainant timely requested reconsideration of the decision in Frank
Zito v. United States Postal Service, EEOC Appeal No. 0120070284 (April
16, 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 disability (heart disease) when: on August 10, 2005, his
request for reasonable accommodation was denied; and on October 21,
2005, he was issued a letter of warning.
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 a hearing. The AJ issued a decision without a hearing,
finding no discrimination. In her the decision, the AJ found that
complainant failed to show that he was denied a reasonable accommodation.
The agency issued a final order implementing the AJ's decision.
Complainant appealed the agency's final order to the Commission.
In Zito v. United States Postal Service, EEOC Appeal No. 0120070284
(April 16, 2009), the Commission affirmed the agency's final order.
Complainant now requests that the Commission reconsider its decision.
In his request for reconsideration, complainant mainly restates his
claims asserting that the agency discriminated against him when it denied
his reasonable accommodation and he was sent for a fitness-for-duty
examination without cause
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. 0120070284 remains the Commission's decision. There is no further
right of administrative appeal on the decision of the Commission on this
request.1
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
November 5, 2009
__________________
Date
1 To the extent complainant raises new claims in his request for
reconsideration, we decline to address these arguments as it is
inappropriate for complainant to raise such new claims for the first
time in a request for reconsideration. See Hubbard v. Department of
Homeland Security, EEOC Appeal No. 01A40449 (April 22, 2004).
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0520090507
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013