Curtis L. Wrenn, Appellant,
v.
Tony E. Gallegos, Chairman, Equal Employment Opportunity Commission, Agency.

Appeal No. 
01932105
Agency Nos. 9100018-HQ; 9100036-HQ

August 19, 1993

DECISION

INTRODUCTION

On March 20, 1993, Curtis L. Wrenn (hereinafter referred to as appellant) timely filed an appeal to the Equal Employment Opportunity Commission (Commission) from the final decision of the Equal Employment Opportunity Commission (hereinafter referred to as the agency) which was received by appellant on February 24, 1993. Appellant alleged that the agency discriminated against him on the bases of race (black), age (60), and in reprisal for prior EEO activity when he was not considered for the positions of District Director in the agency's Chicago and Charlotte District Offices. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.; and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §621 et seq. We accept appellant's appeal pursuant to EEOC Order No. 960, as amended.

For the reasons that follow, the agency's decision is AFFIRMED.

ISSUE PRESENTED

Whether the agency [FN1] properly dismissed appellant's complaint.

BACKGROUND

Appellant filed the instant complaints on January 16, 1991. The agency consolidated the two complaints for processing and on April 6, 1992, issued a proposed disposition finding no discrimination. Appellant requested a hearing before an Administrative Judge (AJ).

Hearing dates of October 29 and 30, 1992 were agreed upon by appellant, the agency and the AJ in early September 1992. On September 4, 1992, the AJ informed appellant of the prehearing schedule, and advised him that no continuance would be granted other than for good cause. On or about October 26, 1992, three days before the scheduled hearing date, appellant informed the AJ and the agency in a conference call that he would be seeking a continuance. The stated reason was to prepare a brief and for an appearance in November before the U.S. Court of Appeals for the Second Circuit. The AJ received appellant's motion for a continuance the following day, October 27, 1992.

The AJ denied the motion because the request came only three days before the scheduled hearing. He attempted to reach appellant on October 27th during a previously scheduled conference call, but appellant was not present to receive the call. A message was left with appellant's daughter to inform appellant that his motion for a continuance was denied, and that he was expected to appear at the hearing.

The hearing was convened as scheduled on October 29, 1992, but appellant failed to appear. The AJ then issued an order dismissing appellant's complaints with prejudice because of his failure to appear at the hearing, terming appellant's action a failure to prosecute. The agency thereupon issued a final agency decision (FAD) dated February 18, 1993, dismissing the complaints pursuant to 29 C.F.R. §1614.107(g).

Appellant has appealed the dismissal on two grounds. He argues that a continuance of the hearing was warranted because he could not both attend the hearing and prepare for another hearing before an appeals court. He also explains that he was unavailable for the October 27th conference call because he was undergoing emergency medical treatment. The agency has filed no comments or brief in opposition to the appeal.

ANALYSIS AND FINDINGS

Under 29 C.F.R. §1614.107(g), an agency shall dismiss a complaint:

where the agency has provided the complainant with a written request to provide relevant information or otherwise proceed with the complaint and the complainant has failed to respond to the request...or the complainant's response does not address the agency's request.

The agency invoked this provision of the EEOC Regulations to dismiss appellant's complaint. Under the predecessor to this Regulation, 29 C.F.R. §1613.215(a)(6), an agency's cancellation of a complaint has been held to be appropriate when there was a clear record of delay or contumacious conduct on the part of a complainant. Ismael Delgado v. United States Postal Service, EEOC Request No. 05900859 (October 25, 1990).

The Commission has recently upheld the cancellation of another complaint filed by this appellant, under circumstances almost identical to those here. In Curtis L. Wrenn v. Department of Veterans Affairs, EEOC Request No. 05920705 (April 2, 1993), the agency invoked 29 C.F.R. §1613.215(a)(6) but relied on abuse of process grounds to cancel the complaint. The agency considered appellant's extensive past history of failures to appear, and his 'little regard for the various stages of the administrative process.' The agency determined that the complaint should be summarily cancelled after appellant failed to appear at a hearing, without rendering any decision on the merits of appellant's complaint. The Commission agreed.

After reviewing appellant's actions in this complaint, we find that the same reasoning and findings made in Wrenn, above, apply here. An Administrative Judge is to grant requests for postponement sparingly and for good reason. As in Wrenn, above, appellant requested a hearing continuance shortly before a duly scheduled hearing. The Commission finds that the AJ in this case acted properly in denying appellant's request for a continuance, since appellant did not show good reasons for rescheduling. In view of the fact that the date of the hearing had been set for almost two months, appellant had to show more to justify a continuance than the mere fact that he had another proceeding competing for his time.

The Commission concludes that appellant's failure to appear warranted the AJ's remand of the complaint to the agency. [FN2]. By his action, appellant has forfeited his right to a hearing on his complaint. Wrenn, supra.

An appellant's failure to appear at a hearing, without more, is not a sufficient showing to warrant cancellation of his or her complaint on the grounds of failure to prosecute. That is because of the Commission's general rule that an agency may not cancel a complaint when it has sufficient information on which to base an adjudication. See Ross v. United States Postal Service, EEOC Request No. 05900193 (April 12, 1990).

However, given appellant's prior conduct and past history, we find that the agency acted properly in dismissing appellant's complaint without rendering a final decision on the merits of his complaint. We make this finding on abuse of process grounds. Commission Regulations do not explicitly provide for sanctioning individuals who abuse the EEO process. Richard Becker v. Department of the Treasury, EEOC Request No. 05900221 (June 15, 1990). However, the language of the Regulations does not deprive the Commission of its authority to protect its administrative process; quite the contrary, the Commission has the inherent power to control and prevent such abuse. Charles Buren v. United States Postal Service, EEOC Request No. 05850299 (November 18, 1985).

On rare occasions, the Commission has applied abuse of process standards to particular complaints. Occasions in which application of the standards are appropriate must be rare, because of the strong policy in favor of preserving a complainant's EEO rights whenever possible. See generally, Love v. Pullman, Inc., 404 U.S. 522 (1972). Abuse of process can be defined as a clear pattern of misuse of the process for ends other than that which it was designed to accomplish. See Buren, supra. The elements of abuse of process include, in addition to the ulterior purpose to misuse the process, a willful act that is not proper in the regular conduct of the proceeding. See generally, W. Keeton, Prosser and Keeton on the Law of Torts 898, Lawyer's Ed. (1984).

In Buren, the Commission concluded that the appellant had abused the administrative process. The appellant had filed numerous complaints, many of which were duplicative or were beyond the purview of the EEO process. In finding a definite pattern of abuse, the Commission relied on the nature of the subject matter of appellant's complaints, and on the volume, noting particularly the 142 appeals and requests to reopen that were pending at the time of the Commission's decision. The Commission found that the appellant had blatantly overburdened the administrative system, and declined to further entertain the pending complaints. [FN3] In Becker, supra, the agency had rejected a complaint comprised of general, non-specific assertions. The Commission, while upholding the agency's rejection of the complaint on that basis, warned the appellant that abuse of process would not be tolerated. The Commission described the appellant's extensive history of filing complaints against federal agencies and private companies, and chronicled the numerous rulings of Circuit Courts which had enjoined the appellant from filing unsubstantiated civil actions. Appellant was put on notice that future appeals to the Commission would be summarily dismissed if the appealed complaints did not meet enumerated standards of specificity. In both Buren and Becker, the Commission emphasized that the mere filing of numerous complaints would not constitute an abuse of process.

In Wrenn, supra, which we follow here, the Commission considered not only the fact that appellant had filed numerous complaints, [FN4] but also determined that appellant had repeatedly engaged in acts that serve no purpose other than to obstruct the orderly processing of his complaints. The Commission considered his previous failures on three occasions to appear at duly scheduled hearings for which he received adequate notice, and at trial. On one of these occasions, the agency had specifically asked appellant if he wished to proceed to hearing, since he had failed to appear at trial a short time before. Appellant responded by requesting that the hearing be conducted as soon as possible, but he then failed to appear. In addition, appellant had withdrawn a hearing request one week before the scheduled hearing. Noted was a Commission determination that appellant had engaged in contumacious conduct. Curtis L. Wrenn v. Department of Veterans Affairs, EEOC Request No. 05900917 (September 27, 1990). Also noted was the chronicle of appellant's past history that was set out in a Second Circuit opinion in a civil action brought by appellant, in which the Court in essence found that appellant had failed to fulfill his obligation of good faith participation in the administrative process. Wrenn v. Department of Veterans Affairs, 918 F.2d 1073 (2nd Cir. 1990), cert. denied, 111 S. Ct. 1625 (1991). The Court noted:

We cannot determine how many actions Wrenn has brought in federal courts. However, since 1985, Wrenn has been the appellant in at least forty pro se appeals in the Second, Fourth, Sixth and District of Columbia Circuits. He has been repeatedly cautioned and occasionally sanctioned for pursuing frivolous claims and appeals. His many civil rights actions led the Sixth Circuit to state:

Wrenn's litigiousness is alarming. He is creating a small, very specialized library of cases on civil rights litigation all by himself ... his multiplicitous filings waste judicial resources ... Wrenn's abuse of the civil rights laws to manufacture litigation is most distressing.... Wrenn v. Gould, 808 F.2d 493, 505 (6th Cir. 1987).

918 F.2d at 1075 n. 1. In this case, we consider specifically, appellant's repeated failures to appear at EEOC hearings. Our records alone, which show only appeals and requests to reconsider and do not show any behavior that was not appealed, reveal that appellant has failed to appear at EEOC hearings, without good cause shown, on four previous occasions. [FN5] These hearings are an EEOC function as well as an integral part of the government-wide EEO process. They entail considerable effort, time, and resources on the part of the EEOC and the agencies. Therefore, it is appropriate to protect the hearing function from abuse. Appellant's failures to appear at hearings have occurred so frequently as to constitute a pattern, and in view of the fact that he had adequate notice each time, we infer that his failures were willful acts. To request hearings, and then willfully disregard them, nullifies the important role of the hearing in the EEO process and blatantly overburdens the process. The Commission concludes that appellant's behavior rises to the level that warrants a Commission finding of abuse of the administrative process.

Appellant's conduct also manifests a degree of disinterest that as applied to the instant case is tantamount to an abandonment of his claim. Given the unusual circumstances here, the Commission has decided not to require the agency to issue a decision on the merits of appellant's complaint. We do not hereby overturn our general rule under Ross that an agency may not cancel a complaint when it has sufficient information on which to base an adjudication, and continue to favor the strong policy of preserving the appellant's EEO rights wherever possible. This case, however, is the rare exception which warrants application of abuse of process standards rather than the more usual failure to prosecute standards of Delgado, supra. Therefore, the requirement to issue a decision on the merits of appellant's complaint is hereby waived, and the agency's decision to cancel appellant's complaint is affirmed.

CONCLUSION

After a careful review of the record, and for all the foregoing reasons, it is the decision of the Commission to AFFIRM the agency's final decision dismissing appellant's complaint.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1092)

The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission.

RIGHT TO FILE A CIVIL ACTION (S/A1092)

You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) CALENDAR DAYS of 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 (Z1092)

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:

Frances M. Hart
Executive Officer
Executive Secretariat

[FN1]. In the instant matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent agency and the appellate authority. The Commission's appellate function is separate from and independent of those offices responsible for processing and resolving in-house discrimination complaints. Hereinafter, the appellate authority will be referred to as the 'Commission,' and the term 'agency' will be used when referring to the EEOC in its capacity as the respondent. Chairman Tony E. Gallegos has recused himself from participation in this decision.

[FN2]. Appellant's second argument on appeal is irrelevant to this determination, since his unavailability for a conference call has no bearing on our finding regarding his failure to appear at his hearing.

[FN3]. In addition, the Commission ruled that subsequent appeals or requests for reconsideration filed by that appellant were subject to summary dismissal. Several additional complaints were dismissed accordingly in EEOC Appeal No. 01862697 (June 23, 1987).

[FN4]. Since 1987, the appellant has been the subject of 38 appeals and requests to reopen filed with the Commission, in complaints brought against seven federal agencies.

[FN5]. EEOC Requests Nos. 05920705 (April 2, 1993), (discussed in text); 05910051 (February 7, 1991) and 05900010 (March 27, 1990); 05890560 (November 17, 1989); EEOC Appeal No. 01862629 (May 2, 1988).