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