05A30246
03-26-2003
Michael V. Fratini, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Michael V. Fratini v. United States Postal Service
05A30246
March 26, 2003
.
Michael V. Fratini,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Request No. 05A30246
Appeal No. 01992838
Agency No. 4E-800-0107-98
DENIAL OF REQUEST FOR RECONSIDERATION
Michael V. Fratini (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Michael V. Fratini v. United States Postal Service, EEOC
Appeal No. 01992838 (January 16, 2002). EEOC Regulations provide that
the Commission may, in its discretion, 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 his underlying complaint, complainant alleged that he was discriminated
against on the bases of race (Caucasian), color (white), sex (male),
religion (Pagan/Heathen), age (D.O.B. November 25, 1948), disability
(nervous condition) and in retaliation for prior EEO activity, in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The claim arose when, on January 11, 1998,
complainant attempted to mail a personal package at the Terminal Annex
Finance Station, but was refused service by the window clerks, and was
escorted off agency premises by the postal police. In the agency's
final decision, the agency found no discrimination. The Commission
affirmed the agency's decision, finding that complainant failed to state
a claim of discrimination, pursuant to 29 C.F.R. � 1614.107(a)(1), as
complainant was not an aggrieved employee. Additionally, even assuming
that complainant had
stated a claim of discrimination, the Commission found that complainant
failed to establish that he was subjected to unlawful discrimination on
the bases of race, color, sex, religion, age, disability, or reprisal,
by a preponderance of the evidence.
Complainant contends that his request for reconsideration should
be granted because the agency refused to participate in alternative
dispute resolution (ADR) with complainant regarding the instant case.
The Commission responds, however, that an agency decision not to engage in
ADR, or not make ADR available for a particular case, or an agency failure
to provide a neutral, cannot be made the subject of an EEO complaint.
See EEOC Management Directive 110 (EEO-MD-110), Ch. 3(II)(A)(4) (November
9, 1999).
After a review of complainant's request for reconsideration, 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. The decision in EEOC
Appeal No. 01992838 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 26, 2003
__________________
Date