Herbert M. Kleinman, Appellant,
v.
Marvin T. Runyon, Jr., Postmaster General, United States Postal Service, Agency.

Request No. 05940579 (01941642), 05940585 (01941171), 05940632 (01942022), 05940723 (01942778), 05940763 (01942328)
Appeal No. 
01943637
, 01943808, 01943877, 01944033
Agency No. 4-H-2329-93, 4-H-2101-93, 4-H-2536-93, 4-H-330-2773-93, 4-H-330-2724-93, 4-H-330-2763-93, 4-H-330-1129-94

September 22, 1994

DECISION

Since the beginning of the present fiscal year on October 1, 1993, appellant has filed six requests for reconsideration of Commission decisions concerning complaints dismissed by the agency for procedural reasons and nineteen separate appeals of final agency decisions, of which sixteen concerned procedural dismissals. [FN1] The Commission addresses herein five of the six requests for reconsideration and four appeals. In each instance, appellant's requests and appeals were timely filed and are accepted in accordance with EEOC Order No. 960, as amended. This decision further discusses appellant's practice of filing multiple appeals and requests for reconsideration on matters that have become far removed from issues of discrimination in employment and notes the Commission's inherent right to protect its processes and procedures from abuse.

In each of the nine complaints at issue herein, appellant alleged that the agency discriminated against him on the bases of physical disability (herniated disc) and reprisal (prior EEO activity) in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq., and section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq. The following discussion sets forth the facts attendant to each request for reconsideration and appeal; appellant's contentions and those of the agency, if any, before the Commission; and the Commission's analysis and findings.

I. REQUESTS FOR RECONSIDERATION

A. General Standards

EEOC Regulations provide that the Commission may, in its discretion, reconsider any previous Commission decision. 29 C.F.R. §1614.407(a). The party requesting reconsideration must submit written argument or evidence that tends to establish one or more of the following three criteria; 29 C.F.R. §1614.407(c)(1) (new and material evidence is available that was not readily available when the previous decision was issued); 29 C.F.R. §1614.407(c)(2) (the previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy); or 29 C.F.R. §1614.407(c)(3) (the decision is of such exceptional nature as to have substantial precedential implications).

B. Request Nos. 05940579 and 05940723

1. Issue Presented

The issue is whether the previous decisions properly found that appellant's complaints failed to state a claim.

2. Background

A review of the record reveals that appellant alleged that the agency discriminated against him when it refused to provide him, on two separate occasions, with copies of EEOC Management Directive for 29 C.F.R. Part 1614, EEO-MD-110 (October 22, 1992) and, on one occasion, with the Agency's Complaint Processing Handbook, EL-603. The agency dismissed appellant's first complaint (Agency No. 4-H-2329-93; Appeal No. 01941642) on the grounds that it failed to state a claim and the second complaint (Agency No. 4-H-330-2723-93; Appeal No. 01942778) on the grounds that it was identical to the first complaint.

The Commission affirmed the agency's dismissal of both complaints. In Appeal No. 01941642, it held that appellant had not shown that he suffered any personal loss or harm associated with the agency's alleged failure to provide him with the documents or that the agency's action adversely affected his ability to pursue his complaints. The Commission noted that appellant may determine whether the agency processed his complaints 'promptly, fairly, and within the boundaries set forth in EEOC regulations,' by reference to Commission regulations. In the second case, Appeal No. 01942778, the Commission did not address the agency's basis for its actions, but held that the complaint failed to state a claim for the reasons noted in Appeal No. 01941642.

3. Appellant's Contentions

Appellant bases his requests for reconsideration on 29 C.F.R. §1614.407(c)(2) and (c)(3). He asserts that he suffered a personal loss or harm from the agency's actions because previous agency investigations conducted under MD-110 and EL-603 involved monetary issues and overtime. He also asserts that no agency form asks the aggrieved individual to show how s/he has suffered a personal loss or harm and that to dismiss a case in the absence of such a showing is improper. Appellant accuses the agency of purposefully omitting this question for subsequent use as a 'hidden mechanism to have cases dismissed....'

4. Analysis and Findings

After a careful review of the previous decision, appellant's request for reconsideration, and the entire record, the Commission finds that the request does not meet the criteria of 29 C.F.R. §1614.407(c)(2) or (c)(3). The previous decisions properly held that appellant's complaints failed to state a claim under either Title VII or the Rehabilitation Act. The Commission disagrees with appellant's contention that he needs copies of either MD-110 or EL-603 in order to determine whether agency investigations of his complaints were pursued properly. Under Commission regulations, a complainant receives copies of investigative files and has the option of either requesting a final agency decision based on the investigative file or a hearing before an EEOC Administrative Judge (AJ). 29 C.F.R. §1614.108(f). If a complainant chooses the latter option, s/he has the right to conduct limited discovery, 29 C.F.R. §1614.109(b), as well as the right to present relevant testimony in support of his/her complaint. Whether an agency conducted a thorough or proper investigation thus is a matter that may and should be resolved during a hearing before an AJ or on appeal of a final decision concerning the matter being investigated. As the Commission has noted, allegations that an agency improperly investigated a complaint do not support independent allegations of improper processing. See Appleby v. Department of the Army, EEOC Appeal No. 01933897 (March 8, 1994). Rather, such allegations must be addressed before, during, or after the AJ hearing or on appeal from a decision issued thereafter.

The Commission further finds that the agency's dismissal based on an absence of information concerning appellant's personal loss or harm was not improper. It is long-settled that in order to be deemed 'aggrieved' under federal EEO law, a complainant must allege that because of an agency's conduct, s/he has suffered a personal loss or harm that affects a term, condition, or privilege of employment. See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972). In many cases, the personal loss or harm is evident from the facts presented by the complainant. In still other cases, however, the harm or loss associated with a term, condition, or privilege of employment is not discernable from the complaint and requires additional clarification. See Graham v. U.S. Postal Service, EEOC Request No. 05931107 (February 17, 1994). Where a complaint does not contain sufficient information from which an agency may determine that the complainant suffered a personal loss or harm, it may, pursuant to 29 C.F.R. §1614.107(a), dismiss the complaint for failure to state a claim.

C. Request Nos. 05940632 and 05940763

1. Issue Presented

The issue is whether the previous decisions properly found that appellant's complaints failed to state a claim.

2. Background

A review of the record reveals that appellant alleged that the agency discriminated against him when it informed him that he would be provided EEO counseling by mail rather than in person (Agency No. 4-H-2536-93; Appeal No. 01942022) and when it informed him that it would investigate a complaint by mail (Agency No. 4-H-330-2724-93; Appeal No. 01942328). The agency dismissed appellant's complaints on the grounds that he raised the same allegations in a previous complaint.

The Commission affirmed the dismissal of both complaints, but on different grounds. It noted first that because appellant's complaints involved agency actions occurring on different dates than at issue in the previous complaint, they did not address the same claim as the earlier one and the agency improperly dismissed these complaints on that basis. It further held, however, that neither complaint stated a claim for relief because appellant had not indicated how the agency's actions caused him personal loss or harm. It further noted that Commission regulations do not require that the investigation of a complaint involve face-to-face contact between a complainant and an investigator. Under 29 C.F.R. §1614.108(b), an agency, in preparation of the 'factual record upon which to make findings on the matters raised by the written complaint ... may use an exchange of letters or memoranda ... or any other fact-finding methods that efficiently and thoroughly address the matters at issue.'

3. Appellant's Contentions

Appellant bases his requests for reconsideration on 29 C.F.R. §1614.407(c)(2) and (c)(3). He contends that his complaints were related to agency denial of his right to work overtime and that had he been afforded in-person EEO counseling or face-to-face meetings with the investigator, he would have been able to demonstrate 'different job skills which I may have developed given the opportunity for overtime.' He further asserts that the Commission failed to address his contention that the agency failed to comply with MD-110, Chapter 5, section V.C. in its previous decisions.

4. Analysis and Findings

The Commission finds that the request does not meet the criteria of 29 C.F.R. §1614.407(c)(2) or (c)(3) and that appellant's complaints failed to state a claim. First, the Commission notes that EEO counseling serves several purposes, which include defining the issues, advising the complainant of his/her rights and responsibilities, and attempting to reach a pre-complaint resolution. Based on the record in this case and taking notice of appellant's relationship with the agency, the Commission finds that the agency met its regulatory obligation by providing appellant with EEO counseling by mail.

Second, appellant failed to support his claim that the Commission's interpretation of 29 C.F.R. §1614.108(b) was erroneous. As noted above, that section allows an investigation of a complaint to proceed by an 'an exchange of letters or memoranda.'

Finally, appellant's claim that the agency improperly investigated his complaint by using the mails constitutes a collateral attack on the investigation of the prior complaint and, as such, is impermissible. As noted above, the proper places to challenge an investigation are at a hearing before an AJ on the complaint subject to the investigation or before the Commission on appeal of a final decision concerning that specific complaint.

D. Request No. 05940585

1. Issue Presented

The issue is whether the previous decision properly found that appellant's complaint failed to state a claim.

2. Background

A review of the record reveals that appellant alleged that the agency discriminated against him when the Assistant Station Manager (ASM) allegedly falsified a material fact in an affidavit she provided in connection with a prior EEO complaint, Agency No. 3-S-1252-91, and when the EEO Counselor/Investigator covered-up the falsification. Appellant contended that he was given a 'direct order' to leave the work place and that the ASM lied about whether she gave him a 'direct order' to work or go home, or whether she told him to choose between working or leaving. According to appellant, the ASM told the EEO investigator that she did not give appellant a 'direct order' to leave, but told him that he must work in a specific room or go home. Appellant further contends that the ASM perjured herself because she stated to the agency's Injury Compensation Office that she gave him a 'direct order to go into the room to work.' The agency dismissed the complaint on the grounds that it stated a claim that appellant raised in a previous complaint.

The Commission affirmed the agency's dismissal, but on different grounds. Specifically, it held that appellant failed to show how he suffered a personal loss or harm from the alleged conduct, noting that he could have raised these allegations during agency consideration of Agency No. 3-S-1252-91 or on appeal of a final decision.

3. Appellant's Contentions

Appellant bases his requests for reconsideration on 29 C.F.R. §1614.407(c)(2) and (c)(3). Appellant asserts that the 'willful distortion of the record' caused by the ASM's falsehood caused him to suffer a personal loss or harm. He further asserts that had he not been sent home from work by the ASM he could have competed with other, nondisabled employees for overtime assignments.

4. Analysis and Findings

The Commission finds that the request does not meet the criteria of 29 C.F.R. §1614.407(c)(2) or (c)(3) and that appellant's complaint fails to state a claim for relief. As the Commission has noted above, matters pertaining to an investigation are not subject to a collateral challenge; the proper places to raise challenges to statements made during an investigation are at a hearing before an AJ on the complaint subject to the investigation or before the Commission on appeal of a final decision concerning that specific complaint.

This complaint/appeal constitutes the first collateral attack by appellant challenging the agency's decision in Agency No. 3-S-1252-91: appellant raised the issue of the ASM's allegedly inconsistent statements in his request for reconsideration of the Commission's decision affirming the agency's final decision in Agency No. 3-S-1252-91. The underlying issue, that is, whether the agency discriminated against appellant when he was sent home, was fully litigated in Agency No. 3-S-1252-91, on appeal, and through a request for reconsideration. As each of these decisions made clear, there is no dispute that appellant was ordered off the clock and sent home when he refused to work in the room designated for the job function he was performing. In its initial decision on appeal, the Commission held that the agency did not discriminate against appellant on the bases of disability or reprisal when it ordered him to leave the work place. Kleinman v. U.S. Postal Service, EEOC Appeal No. 01922218 (March 4, 1993)(Kleinman I). In particular, the Commission held that appellant did not suffer from a disability that required that he be accommodated by being assigned to a different room or that 'the agency's reasons for ordering him off the clock were a pretext for ... discrimination.' Appellant filed a request for reconsideration, citing, among other things, the alleged discrepancy between the ASM's statements to the EEO investigator and the injury compensation office. In its decision on appellant's request, the Commission held that whether the ASM gave appellant a 'direct order' or simply gave him the choice between working or leaving was irrelevant. Kleinman v. U.S. Postal Service, EEOC Request No. 059305551 (April 14, 1994)(Kleinman II). Rather, it held that the issue was whether the agency discriminated against appellant when it gave him the option of either working in the designated room or going home, regardless of how the option was communicated to him. Finding no discrimination, the Commission affirmed its original decision.

Based on the foregoing, the Commission finds that appellant's allegation in EEOC Request No. 05940585 involves a matter that has been fully litigated at the administrative level. It thus may not be re-opened by a collateral attack against the agency's investigative processes.

II. APPEALS OF FINAL AGENCY DECISIONS

A. Appeal No. 01943637 (Agency No. 6-I-0347-93)

1. Issue Presented

The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds that it failed to state a claim.

2. Background

On June 10, 1993, appellant filed a formal EEO complaint, alleging that the agency discriminated against him when the U.S. Postal Inspection Chief Inspector in Memphis (the Inspector) failed to respond to a letter that he sent in a manner that he deemed timely. Specifically, appellant contended that he sent a letter dated March 22, 1994, to the Inspector alleging that the ASM 'purposefully falsified a material fact' during the investigation of Agency No. 3-S-1252-91. Appellant further contended that he 'requested immediate action be taken ... and that I be notified of their intentions ... within 10 calendar days of their receipt of that letter.' Appellant initiated EEO counseling on April 26, 1994, after not receiving a response to his letter.

In its final decision, the agency dismissed appellant's complaint on the grounds that it failed to state a claim. The agency ruled that the Inspector and the agency's Inspection Service play no role in EEO matters and that federal EEO statutes are not implicated by allegations of the violation of a criminal statute. It further ruled that the 'proper forum for the complainant to contest the alleged falsification of an affidavit in an EEO investigation is at the hearing stage pursuant to §1614.109.'

3. Contentions on Appeal

On appeal, appellant contends that he suffered a personal loss attendant to the ASM's alleged perjury. He states that had the Inspector investigated his allegation and found that the ASM perjured herself, the agency further would have determined that he was adversely affected by her actions, which caused him to lose overtime on April 8 and 9, 1991, and the ability to develop job skills when 'given the opportunity to work overtime.'

In response to appellant's appeal, the agency notes that the Inspector has responded to appellant's letter, which renders this matter moot, and that appellant has filed another EEO complaint 'concerning the nature of the response he received.'

4. Analysis and Findings

EEOC Regulation 29 C.F.R. §1614.107(a) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to state a claim under §1614.103 or §1614.106(a). To establish standing as an 'aggrieved employee' within the context of 29 C.F.R. §1614.103, appellant must allege, first of all, that he has been injured in fact. Hackett v. McGuire Bros., 445 F.2d 447 (3d Cir. 1971). Specifically, appellant must allege some direct harm which affects a term, condition, or privilege of employment. See Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 211 (1972).

The Commission notes that this complaint is the second collateral challenge lodged against the agency's decision in Agency No. 3-S-1252-91. It finds that the agency properly dismissed appellant's complaint. First, the Commission notes that the issue of appellant's removal from the work place was fully litigated in KleinmanI and II. Second, in Kleinman II, the Commission addressed the significance of the alleged discrepancy between the ASM's two statements and found the issue irrelevant.

The Commission further finds that appellant has not asserted a personal loss or harm associated with the agency's actions at issue herein. Appellant alleges that the Inspector failed to respond to his letter on a basis that he deemed timely, but cites no authority compelling the Inspector to respond to his letter. The Commission finds appellant's contention that the Inspector's failure to respond timely to his April 1994 letter caused him personal loss associated with an April 1991 denial of overtime far too attenuated for purposes of asserting a personal loss or harm. In this regard, it finds appellant's complaint allegation wholly unrelated to his employment: whether the Inspector responded timely or untimely to his inquiry would not affect a term, condition, or privilege of his employment. Appellant's receipt of a letter from the Inspector would not provide him with any employment-related relief.

B. Appeal No. 01943808 (Agency No. 6-I-0025-94)

1. Issue Presented

The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds that it failed to state a claim.

2. Background

On August 24, 1993, appellant filed a formal EEO complaint, alleging that the agency discriminated against him when the Inspector failed to investigate his allegation that the ASM perjured herself during the investigation of Agency No. 3-S-1252-91. The agency dismissed appellant's complaint on the grounds that it failed to state a claim, ruling that the decision of the Inspector whether to accept a complaint for investigation does not affect a term, condition, or privilege of employment. It further noted that even if it decided to investigate appellant's allegation, its decision would have no effect on appellant's employment and that he thus had no direct stake in the outcome of any such investigation.

3. Contentions on Appeal

Appellant contends that the ASM's statements caused him personal loss or harm, noting that he was sent home from work and denied the right to compete with nondisabled employees for overtime, which resulted in his inability to develop job skills and a loss of income.

4. Analysis and Findings

This complaint constitutes the third attempt by appellant to raise the issue of the ASM's statement in a context outside of his appeal/request for reconsideration of the underlying complaint, Agency No. 3-S-1252-91. The Commission finds that appellant's claim fails to state a claim for the reasons noted above. It notes further that even if the Inspector found that the ASM committed perjury, a criminal prosecution of the ASM might follow. There is no provision in federal criminal law, however, from which appellant would receive employment-related relief.

C. Appeal No. 01943877 (Agency No. 4-H-330-2763-93)

1. Issue Presented

The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds that it failed to state a claim.

2. Background

On November 5, 1993, appellant filed a formal EEO complaint, alleging that the agency discriminated against him when it improperly processed Agency No. 4-H-2591-93, which involved the Senior EEO Complaints Processing Specialist in the South Florida District EEO Office, by assigning the investigation of the complaint to that office. [FN2] He further alleged that the complaint was not handled in accordance with MD-110. The agency dismissed the complaint on the grounds that it failed to state a claim, ruling that it handled Agency No. 4-H-2591-93 in accordance with MD-110 and finding that appellant made no showing of personal loss or harm associated with the manner of the agency's management of that case.

Although not a part of the record in this case, the Commission takes notice of its decision in Kleinman v. U.S. Postal Service, EEOC Appeal No. 01943529 (June 29, 1994) (Kleinman III), in which it affirmed the agency's dismissal of Agency No. 4-H-2591-93 on the grounds that it failed to state a claim.

3. Contentions on Appeal

Appellant contends that he was harmed by not being able to discuss his complaint allegations face-to-face with the investigator. He states that had he been able to do so, he could have noted overtime opportunities that were denied to him by the agency, as well as other job-related benefits that he lost. He further contends that the agency's actions violate MD-110 because his allegations, which identify the Senior EEO Complaints Processing Specialist in the South Florida District EEO Office as a discriminating official, are being investigated by members of her staff.

In response to appellant's appeal, the agency notes that appellant has not worked for over two years but continues to file complaints, many of which concern the same basic issues, such as whether the agency properly processed a prior complaint. The agency further asserts that 'this complaint, as with many others concern spin-off allegations which build on a previous complaint wherein the same allegation was alleged relative to a previous complaint. There appears to be no end to appellant's complaints in this matter since each successive complaint alleges the same allegation.' The agency asserts that it has the right to make an initial determination, on a case-by-case basis, as to whether a conflict of interest may exist where a complaint identifies an EEO employee as a discriminating official, which would warrant the assignment of a complaint to another agency EEO office.

4. Analysis and Findings

The Commission finds that the agency properly dismissed appellant's complaint on the grounds that it failed to state a claim. Appellant's complaint alleges a 'second generation' improper processing allegation: the improper processing of an improper processing claim. The Commission finds first that a second generation improper processing complaint fails, as a matter of law, to state a claim under federal EEO law. Appellant's complaint allegation is simply too far removed from issues pertaining to employment and discrimination affecting a term, condition, or privilege of employment to state a claim. Second, it notes that in Kleinman III, the Commission upheld the agency's dismissal of Agency No. 4-H-2951-93. Its decision in that case estops appellant from collaterally challenging how the agency handled his complaint.

D. Appeal No. 01944033 (Agency No. 4-H-330-1129-94)

1. Issue Presented

The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds that it failed to state a claim.

2. Background

On February 22, 1994, appellant filed a formal EEO complaint, alleging that the agency discriminated against him when he learned that a previous formal EEO complaint, Agency No. 4-H-330-2763-93, which involved the Senior EEO Complaints Processing Specialist in the South Florida District EEO Office, was assigned to that office for investigation.

In its final decision, the agency dismissed appellant's complaint on the grounds that it failed to state a claim. The agency noted that it did not conduct an investigation of the underlying complaint but dismissed it on procedural grounds. For these reasons, it ruled that appellant was not aggrieved by any agency action.

Although not a part of the file in this appeal, the Commission takes notice that Agency No. 4-H-330-2763-93 is being decided herein (Kleinman IV) and that the Commission has affirmed the agency's dismissal of the complaint on the grounds that it failed to state a claim.

3. Contentions on Appeal

On appeal, appellant and the agency raise the same contentions as set forth in their statements in connection with appellant's appeal of Agency No. 4-H-330-2763-93.

4. Analysis and Findings

The Commission affirms the agency's decision. Appellant's claim here is a 'third generation' improper processing claim: it alleges that the agency improperly processed a complaint alleging the improper processing of a prior complaint, which, in turn, alleged that a prior complaint was improperly processed. As noted above in response to appellant's appeal of Agency No. 4-H-330-2763-93, a complaint allegation so far removed from issues pertaining to employment and discrimination affecting a term, condition, or privilege of employment, fails, as a matter of law, to state a claim under federal EEO law. It further finds that the Commission's decision in Kleinman IV, affirming the agency's dismissal of Agency No. 4-H-330-2763-93, estops appellant from collaterally challenging how the agency handled that case.

III. COMMENTS AND CONCLUSIONS

As a final matter, the Commission cautions appellant that it retains the right to protect its processes and procedures from misuse and abuse. Although Commission regulations do not explicitly provide for sanctioning individuals who abuse the EEO process, Becker v. Department of the Treasury, EEOC Request No. 05900221 (June 15, 1990), the language of the regulations does not deprive the Commission of its authority to protect its administrative process. Quite to the contrary, the Commission has the inherent power, right, and obligation to control and prevent such abuse. Buren v. U.S. Postal Service, EEOC Request No. 05850299 (November 18, 1985). On rare occasions, the Commission has applied abuse of process standards to particular complaints. See, e.g., Wrenn v. Department of Veterans Affairs, EEOC Request No. 05900010 (March 27, 1990); Becker v. Department of Treasury, EEOC Request No. 05900221 (June 15, 1990). Occasions in which application of the standards are appropriate must be exceptional, 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.

The process in this instance is designed to protect individuals from discrimination in employment. As noted at the outset, appellant has filed six requests for reconsideration of procedural decisions and sixteen separate appeals of final agency decisions dismissing complaints for procedural reasons during the present fiscal year. [FN3] Moreover, since June 1991, appellant has filed forty-seven appeals of final agency decisions and seventeen requests for reconsideration. [FN4] While appellant has filed far fewer filings with the Commission than the appellant in Buren, the Commission noted in that case that the number of cases was not dispositive of whether an individual is abusing the process. More significant are the issues raised at the agency level and before the Commission. In this regard, the Commission notes that appellant's allegations concerning the slow or unsatisfactory response of a postal inspector to a letter concerning a matter unrelated to employment and addressed in other complaints; second and third generation improper processing allegations; multiple allegations concerning the same basic issues (e.g., release of MD-110 and EEO counseling and investigations conducted by mail); and collateral challenges to agency investigations are so far removed from the purpose of federal employment law as to suggest a possible abuse of process.

At present, the Commission will not find that appellant is abusing the process. [FN5] It notes, however, that appellant has not worked for the agency for almost three years. Over that period, the ability of appellant to assert allegations of discrimination relating directly to his employment will and has diminished. Accordingly, the Commission will examine carefully allegations of discrimination that appellant presents on appeal or in requests for reconsideration in order to determine whether they relate to employment or concern matters sufficiently removed from the work place as to be indicative of abuse. If the latter, the Commission will not hesitate to impose the sanction identified in Buren as appropriate in such circumstances, that is, the summary dismissal of appeals and requests for reconsideration filed by appellant with the Commission.

Based on the foregoing, the Commission finds that appellant's requests for reconsideration fail to meet any of the criteria of 29 C.F.R. §1614.407(c). Accordingly, it AFFIRMS the decisions of the Commission in EEOC Appeal Nos. 01941642, 01941711, 01942022, 01942778, and 01942328. The Commission further AFFIRMS the agency's final decisions addressed in EEOC Appeal Nos. 01943637, 01943808, 01943887, and 01944033, dismissing appellant's complaints on the grounds that the complaints failed to state a claim.

STATEMENT OF RIGHTS-ON REQUESTS FOR RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION

This decision of the Commission is final as to the following complaints: Agency Nos. 4-H-2329-93, 4-H-2101-93, 4-H-2536-93, 4-H-330-2773-93, 4-H-330-2724-93. There is no further right of administrative appeal from the Commission's decision concerning these complaints. You have the right to file a civil action in an appropriate United States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION

The Commission may, in its discretion, reconsider the decision in the appeals decided herein-EEOC Appeal Nos. 01943637, 01943808, 01943877, 01944033-if 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 (S0993)

It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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.

STATEMENT OF RIGHTS-REQUESTS FOR RECONSIDERATION/APPEALS

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]. This number does not include EEOC Appeal No. 01943887, which the Commission closed by letter, noting that it was a duplicate of EEOC Appeal No. 01942960. Three of appellant's appeals concern the merits of his complaints; one procedural dismissal, Appeal No. 01943731, is being addressed separately. Of the remaining appeals, four are being addressed herein on appeal; five are the subjects of appellant's requests for reconsideration in this decision; and six were resolved in Commission decisions affirming their dismissal. One request for reconsideration, Request No. 05940768, is also being addressed separately.

[FN2]. The agency consolidated four separate improper processing complaints in Agency No. 4-H-2591-93.

[FN3]. In addition to the nine procedural decisions discussed herein on appellant's Requests for Reconsideration and Appeals, the Commission has resolved six other appeals of procedural decisions:
01941410-improper processing allegations; agency dismissal affirmed; 01942099-agency required that he send Form CA-17 to his supervisor and not to the Injury Compensation Office; dismissed on grounds that appellant raised this issue in prior complaints; agency dismissal affirmed; 01942960-appellant's limited duty status terminated and was forced to apply for workers' compensation; dismissed on grounds that appellant filed a civil action on same issue; agency dismissal affirmed; 01943529-improper processing allegation, regarding the investigation of a prior complaint through the mail (see Request No. 05940763 herein); dismissed for failure to state claim; agency dismissal affirmed; 01943734-improper processing allegation, that a prior complaint was handled by the South Florida District EEO Office (see Appeal Nos. 01943877 and 01944033 herein); dismissed for failure to state claim; agency dismissal affirmed; and 01943889-improper processing allegation, that a prior complaint was handled by the South Florida District EEO Office (see Appeal Nos. 01943877 and 01944033 herein); dismissed for failure to state claim; agency dismissal affirmed.

[FN4]. Attached hereto as Attachment 1 is a listing of the appeals and requests for reconsideration that appellant has filed since June 1991.

[FN5]. In this regard, the Commission notes that appellant's efforts to compel the Inspector to investigate the ASM's statements seem directed towards compelling a criminal prosecution of the ASM. As noted above in text, appellant would receive no employment-related benefit from the Inspector's prompt response to his letter, an investigation of the ASM's statements, or a criminal prosecution. The use of the EEO process in an effort to achieve non-employment-related ends constitutes an abuse of the process and will not be tolerated in the future.