Yuri J. Stoyanov, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal Nos. 0120113142 0120113817 0120114019 Agency Nos. 11-00167-02195 11-00167-02835 11-00167-03192 DECISION Complainant filed timely appeals with this Commission from various final agency decisions, dismissing his complaints of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. We consolidate these appeals for joint processing pursuant to 29 C.F.R. § 1614.606. BACKGROUND At the time of events giving rise to this complaint, Complainant was a former employee of the Agency. Prior to March 2010, Complainant worked as a scientist at the Agency’s Naval Surface Warfare Center in Carderock, Maryland. In his complaints, Complainant alleged that he was subjected to discrimination on the bases of national origin (born in Russia), age (55), and in reprisal for prior protected EEO activity (arising under Title VII and the ADEA) when he was not referred or selected for various positions within the agency. The Agency dismissed the claims on various grounds including that Complainant abused the EEO process in filing the complaints because he repeatedly filed similar or identical allegations of non-selection and applied for positions for which he was unqualified. The Agency explained that Complainant had been removed by the Agency, and yet he continued to apply for positions within the agency that are reserved for current employees. ANALYSIS AND FINDINGS We note that EEOC Regulations state that an agency shall dismiss a complaint where it clearly evidences a clear pattern of misuse of the EEO process for ends other than that which it was designed to accomplish. See Fisher v. Dep't of Defense, EEOC Appeal No. 01962325 (Dec. 11, 1998) (citing Buren v. U.S. Postal Serv., EEOC Request No. 05850299 (Nov. 18, 1985)). Specifically, 29 C.F.R. § 1614.107(a)(9) states: A clear pattern of misuse of the EEO process requires: (i) Evidence of multiple complaint filings, and (ii) Allegations that are similar or identical, lack specificity or involve matters previously resolved, or (iii) Evidence of circumventing other administrative processes, retaliating against the agency's in-house administrative processes or overburdening the EEO complaint system. As a policy, the Commission aims at preserving a complainant's EEO rights whenever possible; thus, we rarely permit dismissal of a complaint on these grounds. See Kessinger v. U.S. Postal Serv., EEOC Appeal No. 01976399 (June 8, 1999); Equal Employment Opportunity Commission, Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 5, § IV.A.4 (rev. Nov. 19, 1999). Given this policy and our concern about protecting complainants and their rights under the EEO statutes, the agency bears a very high standard of proof ultimately to show that complainant's actions reveal “an ulterior purpose to abuse or misuse the EEO process.” MD-110 at Ch. 5, § IV.A.4. Filing numerous complaints alone is not a sufficient basis for dismissal. The agency must show evidence that somehow in filing numerous complaints a complainant intended to misuse the EEO process. Compare Wiatr v. Dep't of Defense, EEOC Appeal No. 01A30752 (Feb. 25, 2004) (finding no abuse of process in the case of a complainant who filed over 40 complaints, but where the record did not show that he did so for any other reason than to put an end to alleged discrimination) with Abell v. Dep't of Interior, EEOC Appeal No. 01A33023 (May 13, 2004) (finding abuse of process where complainant filed 40 complaints of non-selection with no intention to take the job). See also, Stoyanov v. Dep’t of the Navy, EEOC No. 01A60843, 01A61391, 01A61781, 01A62205, 01A62852 (Aug. 31, 2006) (finding abuse of process where complainant filed 25 complaints over non-selections where complainant was ineligible for positions for which he applied). Therefore, the focus of the analysis is on the totality of the individual's claims, circumstances, and intentions. We are satisfied that the Agency has established that the complaints now before us are part of a pattern of abuse perpetrated by Complainant to punish the Agency by burdening the EEO system despite knowing that the complaints he filed were meritless. Complainant has filed over 50 administrative EEO complaints with the Agency. The clearest indication that Complainant’s objective in filing his numerous EEO complaints was to vex the Agency rather than vindicate his rights under the EEO laws is his recent practice of applying for positions for which he knows he is unqualified. Complainant’s employment with the Agency was terminated effective March 31, 2010.1 On at least 17 occasions since then, he has applied for positions with the Agency for which non-employees were ineligible. In each of those 17 cases, when he was rejected as not qualified, as he inevitably was, he filed an EEO complaint which the Agency dismissed, inter alia, as an abuse of process. In each case, he appealed the dismissal to the Commission. The bulk of Complainant's EEO complaints following his removal in March 2010 involve allegations of discriminatory non-selections. Complainant continues to argue before us that his removal was wrongful and that based on his personal belief, he remains a current employee. Moreover, despite knowing he was not qualified for the positions he sought because they were open only to current employees, he applied anyway. He knew he could not be referred for an interview or selected due to his non-employee status, and he even went so far as to misrepresent himself as an employee on his job applications. Agency officials have warned Complainant that they know of his false applications and would not consider him unless his employment status changes. Complainant, however, disregarded the warnings and filed EEO complaints each time he received notice of his non-selection. Based on these facts we conclude that his only objective in applying for these positions was to then file futile EEO claims against the Agency. In essence, Complainant aimed to use the EEO process to retaliate against the Agency and its officials for his removal and perceived unjust treatment. This is not the purpose for which the process is to be used. The EEO process serves to prevent and eliminate workplace discrimination; it is not to be used as a means to carry out a personal grudge. See Sessoms v. U.S. Postal Serv., EEOC Appeal No. 01973440 (June 11, 1998) (finding abuse of process where complainant developed a pattern of “initiating the complaint machinery with respect to any matter with which complainant was dissatisfied”). In fact, Complainant's actions are similar to those of the complainant in Fisher v. Dep’t of Defense, EEOC Request No. 05970326 (Dec. 11, 1998), where we also found abuse of process. There, Mr. Fisher filed twenty-one complaints. Mr. Fisher was dissatisfied with his failure to obtain relief for his removal from agency employment through the administrative process, so he filed the EEO complaints alleging, for the most part, that the agency improperly handled his official time requests and complaint processing. We concluded that certain of his remarks made during the processing; his failure to cooperate with investigators, EEO officials and the AJ; and his insistence on filing separate appeals on related issues that should have been consolidated all revealed an intention to misuse the EEO process to retaliate against agency officials. Like Mr. Fisher, Complainant here refused to cooperate with agency officials in correcting the false information he supplied on his job applications and attempted to use the administrative process to strike back at the Agency. As in Fisher, we will neither permit Complainant to utilize the EEO process to circumvent administrative processes in this manner, nor allow him to overburden the system, which is designed to protect individuals from discriminatory practices. In this regard, we note that we have previously affirmed the Agency’s dismissals of Complainant’s complaints in Stoyanov v. Dep’t of the Navy, EEOC Appeal Nos. 0120110604, 0120111454, 0120111991 (April 20, 2011). CONCLUSION In light of the foregoing, and upon review of the case files as well as all arguments raised on appeal, we AFFIRM the Agency's decisions dismissing the complaints. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish 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. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) 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 December 6, 2011 Date 1 His removal has since been upheld by the Merit Systems Protection Board (MSPB) in Stoyanov v. Dep’t of the Navy, MSPB No. DC-0752-10-0472-I-1 (Jan. 4, 2011), petition for review denied (Aug. 8, 2011). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120113142 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120113142, 0120113817, 0120114019