Mark D. Gianfelice, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.

Equal Employment Opportunity CommissionDec 1, 2009
0520100022 (E.E.O.C. Dec. 1, 2009)

0520100022

12-01-2009

Mark D. Gianfelice, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.


Mark D. Gianfelice,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Northeast Area),

Agency.

Request No. 0520100022

Appeal No. 0120082531

Agency No. 1B0110002308

DENIAL

Complainant timely requested reconsideration of the decision in

Mark D. Gianfelice v. U.S. Postal Service, EEOC Appeal No. 0120082531

(September 21, 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).

On appeal, complainant alleged discrimination in violation of Title VII of

the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e

et seq. on the basis of race ("race-casual" or perceived race-casual")

when he was not converted to a part-time flexible employee and three

non-postal candidates were hired as career employees in October 2007.

The agency found that complainant failed to show that a "casual"

employee is a race protected by Title VII. Accordingly, the agency

found that complainant had failed to state a claim under 29 C.F.R. �

1614.107(a)(1).1 On appeal, we similarly found that complainant failed

to state a claim. The Commission affirmed the agency's final decision

dismissing complainant's complaint.

In his request for reconsideration, complainant reiterates the same

arguments raised in his prior appeal. Upon review of the record, we find

that the Commission's previous decision properly affirmed the agency's

final decision dismissing complainant's complaint for failure to state a

claim under 29 C.F.R. � 1614.107(a)(1). As was explained to complainant

by the AJ, the term "casual" is a position designation, not a race

protected by Title VII. Therefore, it is the decision of the Commission

to deny the request. The decision in EEOC Appeal No. 0120082531 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

______12/01/09____________

Date

1 The agency adopted the decision of an EEOC Administrative Judge (AJ)

that dismissed complainant's complaint.

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2

0520100022

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0520100022