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