LAMAR W. SESSOMS, JR., APPELLANT,
v.
MARVIN T. RUNYON, JR., POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY.

Appeal Nos. 
01973440
, 01973441, 01973442, 01974047, 01974048, 01974049, 01974050, 01974206, 01974207, 01974208, 01974377, 01974671, 01975549, 01975771, 01975772, 01975897, 01976504, 01976512, 01976513, 01976514, 01980524, 01980849 
[FN1]
Agency Nos. 1-K-221-1073-96, 1-K-221-0003-97, 1-K-221-1079-96, 1-K-221-0015-97, 1-K-221-1063-96, 1-K-221-0018-97, 1-K-221-0014-97, 1-K-221-0004-97, 1-K-221-1047-96, 1-K-221-0022-97, 1-K-221-1045-96, 1-K-221-1059-96, 1-K-221-0048-97, 1-K-221-1085-96, 1-K-221-0067-97, 1-K-221-0082-97, 1-K-221-0097-97, 1-K-221-0135-97, 1-K-221-0110-97, 1-K-221-0063-97, 1-K-221-0166-97, 1-K-221-0005-98

June 11, 1998

DECISION

Appellant filed appeals from final agency decisions (FADs) procedurally dismissing the majority of over 150 allegations raised in 22 EEO complaints, alleging discrimination in retaliation for prior EEO activity. [FN2] The Commission hereby consolidates appellant's appeals in accordance with 29 C.F.R. §1614.606.

An overwhelming majority of appellant's allegations pertain to the agency's processing of prior EEO complaints, [FN3] and most of those allegations pertain to prior EEO complaints where appellant was not the complainant, but merely the complainant's representative. With respect to those allegations where appellant was merely the EEO representative, and not the complainant, we note that he did not have standing to raise the disputes, regardless of whether the matters in question presented processable claims, because the right to raise such matters lies with the complainant, not his or her representative. Furthermore, we note that EEOC Management Directive 110 for 29 C.F.R. Part 1614 makes it clear that an agency may legitimately place reasonable limitations on an employee's time spent serving in a representational capacity. See29 C.F.R. §1614.605; Elliot v. USPS, EEOC Request No. 05960197 (Nov. 13, 1997); Morman v. Department of the Air Force, EEOC Appeal No. 01964629 (Mar. 17, 1997).

For example, in the subject complaints, appellant raised numerous allegations regarding the manner in which discovery was conducted by Administrative Judges presiding over hearings in prior EEO complaints. Appellant raised other allegations that the agency had directly contacted complainants he was representing, thereby circumventing the complainants' right to representation. Appellant also included many allegations that presented generalized assertions that his rights or those of individuals he was representing were being violated by the agency's failure to comply with the EEO regulations. Appellant also raised many other allegations with respect to various aspects of complaints processing, including the agency's alleged failure to comply with regulatory time frames and the agency's alleged failure to request an outside source to complete EEO investigations.

The regulations implementing the statutory language of Title VII are subject to strict compliance once an EEO complaint has been accepted for investigation. Seegenerally29 C.F.R. Part 1614. The language of the regulations, however, does not deprive the Commission of its authority to protect its administrative process from abuse by either party. Quite the contrary, this Commission has the inherent power to control and prevent abuse of its orders and processes and its procedures. Buren v. USPS, EEOC Request No. 05850299 (Nov. 18, 1985). The procedures contained in its regulations provide the process by which allegations of discrimination are processed in the Federal sector which are conducive to eliminating or preventing unlawful employment discrimination. The procedures set forth should not be misconstrued as substitutes for either inadequate or ineffective labor-management relations or an alternative or substitute for labor-management disputes.

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. SeegenerallyLove v. Pullman, Inc., 404 U.S. 522 (1972); Wrenn v. EEOC, EEOC Appeal No. 01932105 (Aug. 19, 1993). 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. SeeBuren, supra.

The Commission has carefully reviewed the numerous appeals and complaints filed by appellant. It is the ultimate opinion of this Commission that appellant has pursued a scheme involving the misuse and misapplication of the administrative process toward an end other than that it was designed to accomplish. In most instances, appellant has merely presented frivolous issues. A definite pattern of initiating the complaint machinery with respect to any matter with which appellant was dissatisfied has developed, which clearly has amounted to an abuse of process. This is evident in the subject matter of the appeals before the Commission.

Furthermore, we are mindful that appellant is not a novice with regard to the EEO complaint process. In particular, we note that in a prior Commission decision, appellant was notified that allegations pertaining to complaints processing must be raised and addressed within the context of the processing of the underlying complaints. SeeSessoms v. USPS, EEOC Request No. 05940590 (Nov. 18, 1994). Specifically, the Commission stated that disputes regarding discovery, witnesses, and the conduct of agency representatives during a hearing should be raised with the Administrative Judge (AJ) conducting the hearing, and that any dispute with the AJ's resolution of a matter must be raised in the context of the complaint being heard by the AJ, and not as part of a new complaint. Despite this explicit explanation by the Commission in a decision pertaining to one of appellant's own EEO complaints, appellant subsequently filed the 22 subject complaints.

Appellant has blatantly overburdened the administrative system by filing these complaints. What is presented is a concerted attempt by appellant to retaliate against the agency's in-house administrative machinery. The Commission cannot permit a party to utilize the EEO process to circumvent administrative processes, nor can the Commission permit individuals to overburden the system, which is designed to protect individuals from discriminatory practices. Thus, this Commission declines to entertain the enumerated matters any further. This decision is not to be construed as holding that the mere filing of numerous complaints constitutes an abuse of process.

It should be noted that failure to administratively process the underlying allegations does not deprive, nor diminish, appellant's right(s) to file a civil action.

Although we have determined that most of the allegations raised in the subject complaints were properly dismissed for abuse of process, we nonetheless find that the agency's dismissal of two allegations was improper.

In allegation 6 of Agency No. 1-K-221-0067-97 (Appeal No. 01975772), appellant alleged that he was subjected to discrimination when on January 30, 1997, he became aware that he was charged leave without pay (LWOP) for the period of December 4 through 10, 1996. As remedial relief, appellant requested, interalia, compensatory damages. The agency determined that the allegation was moot because appellant's absence was converted to FMLA (Family and Medical Leave Act) leave pursuant to a grievance settlement.

EEOC Regulation 29 C.F.R. §1614.107(e) provides for the dismissal of a complaint, or portions thereof, when the issues raised therein are moot. To determine whether the issues raised in appellant's complaint are moot, it must be ascertained (1) if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) if the interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. SeeCounty of Los Angeles v. Davis, 440 U.S. 625 (1979). When such circumstances exist, no relief is available, and no need for a determination of the rights of the parties is presented.

Here, we note that while appellant requested compensatory damages with respect to the matter raised in allegation 6 of Agency No. 1-K-221-0067-97, the agency failed to address his possible entitlement to such relief. The Commission has held that an agency must address the issue of compensatory damages when the complainant presents objective evidence that he or she incurred compensatory damages and that the damages were related to the alleged discrimination. SeeJackson v. USPS, EEOC Appeal No. 01923399 (Nov. 12, 1992), requesttoreopendenied, EEOC Request No. 05930306 (Feb. 1, 1993). Consequently, where, as here, a complainant requests compensatory damages during the administrative processing of his or her complaint, the agency is obliged to request from the complainant objective evidence of such damages. Should appellant prevail with respect to his allegation of discrimination, the possibility of an award of compensatory damages exists. SeeYancey v. Department of Health and Human Servs., EEOC Request No. 05931195 (July 20, 1994); Glover v. USPS, EEOC Appeal No. 01930696 (Dec. 9, 1993). Because the agency failed to address the issue of compensatory damages, we find that the matter raised in allegation 6 of Agency No. 1-K-221-0067-97 has not been rendered moot. We note that the agency accepted allegations 1 and 4 of Agency No. 1-K-221-0082-97 and allegations 5 and 6 of Agency No. 1-K-221-0063-97, which also appear to pertain to the alleged denial of leave requested under the FMLA. Therefore, on remand, the agency should consolidate the above five allegations.

We also find that the agency improperly dismissed one allegation raised by appellant pertaining to the denial of official time. Specifically, in allegation 6 of Agency No. 1-K-221-1047-96 (Appeal No. 01974207), appellant alleged that he was subjected to discrimination when on May 30, 1996, he was questioned by the Senior EEO Complaints Processing Specialist about some of the issues in his complaint, causing him to be .09 units late punching in, and he was forced to submit his EEO complaint on his own time because he was denied official time since May 7, 1996. The agency dismissed this allegation for failure to state a claim, finding that appellant was not aggrieved by the disputed action.

EEOC Regulation 29 C.F.R. §1614.605(b) provides that if the complainant is an employee of the agency, he or she shall be given a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information. The regulation further provides that if the complainant is an employee of the agency, and designates another agency employee as his or her representative, then the agency will give the complainant's representative a reasonable amount of official time to prepare the complaint and respond to agency and EEOC requests for information. The Commission has stated that an allegation pertaining to the denial of official time states a separately processable claim alleging a violation of the Commission's regulations, without requiring a determination of whether the action was motivated by discrimination. SeeEdwards v. USPS, EEOC Request No. 05960179 (Dec. 23, 1996). Therefore, the agency's dismissal of allegation 6 of Agency No. 1-K-221-1047-96 was improper, and on remand, the agency should determine whether appellant was denied a reasonable amount of official time to submit his EEO complaint.

Accordingly, we REVERSE the agency's dismissal of allegation 6 of Agency No. 1-K-221-0067-97 and allegation 6 of Agency No. 1-K-221-1047-96, and we AFFIRM the agency's dismissal of the additional allegations that were dismissed in the subject complaints. Allegation 6 of Agency No. 1-K-221-0067-97 and allegation 6 of Agency No. 1-K-221-1047-96 are hereby REMANDED for further processing in accordance with this decision and the applicable regulations.

ORDER

1) The agency is ORDERED to process allegation 6 of Agency No. 1-K-221-0067-97 in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded allegation within thirty (30) calendar days of the date this decision becomes final. The agency shall issue to appellant a copy of the investigative file and also shall notify appellant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the appellant requests a final decision without a hearing, the agency shall issue a final decision within sixty (60) days of receipt of appellant's request. A copy of the agency's letter of acknowledgment to appellant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.

2) The agency shall conduct a supplemental investigation to determine whether appellant was denied a reasonable amount of official time in violation of 29 C.F.R. §1614.605(b) on May 30, 1996, as alleged in allegation 6 of Agency No. 1-K-221-1047-96. Thereafter, the agency shall issue a decision as to whether appellant was denied a reasonable amount of official time, as alleged in the above allegation, and provide him with appeal rights to the Commission. If the agency determines that appellant was denied a reasonable amount of official time, then it shall reimburse appellant for any time he spent on May 30, 1996, engaged in EEO activity that was not designated official time. The agency's final decision must be issued within sixty (60) calendar days of the date that this decision becomes final. A copy of the agency's decision must be submitted to the Compliance Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action."29 C.F.R. §§ 1614.408 and 1614.409. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. §2000e-16(c) (Supp. V 1993). If the appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See29 C.F.R. §1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

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, MUSTBEFILEDWITHINTHIRTY (30) CALENDARDAYS 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 WITHINTWENTY (20) CALENDARDAYS of the date you receive the request to reconsider. See29 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.

Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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. See29 C.F.R. § 1614.604(c).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court on both that portion of your complaint which the Commission has affirmed AND that portion of the complaint which has been remanded for continued administrative processing. 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. In the alternative, you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your complaint with the agency, or your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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 etseq.; 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. The cases being addressed herein are listed in Attachment A to this decision.

FN2. We note that in some of his appeals, appellant disputes the agency's framing or "renumbering" of his allegations. Upon review, however, we find that the agency has properly framed appellant's complaints.

FN3. The only allegations that do not pertain to complaints processing (including denial of official time and schedule changes) are allegations pertaining to denial of leave under the FMLA (Family and Medical Leave Act).

ATTACHMENT A

CASES ADDRESSED HEREIN

Appeal No.
Agency No.
01973440
1-K-221-1073-96
01973441
1-K-221-0003-97
01973442
1-K-221-1079-96
01974047
1-K-221-0015-97
01974048
1-K-221-1063-96
01974049
1-K-221-0018-97
01974050
1-K-221-0014-97
01974206
1-K-221-0004-97
01974207
1-K-221-1047-96
01974208
1-K-221-0022-97
01974377
1-K-221-1045-96
01974671
1-K-221-1059-96
01975549
1-K-221-0048-97
01975771
1-K-221-1085-96
01975772
1-K-221-0067-97
01975897
1-K-221-0082-97
01976504
1-K-221-0097-97
01976512
1-K-221-0135-97
01976513
1-K-221-0110-97
01976514
1-K-221-0063-97
01980524
1-K-221-0166-97
01980849
1-K-221-0005-98
EEOC DOC 01974050, EEOC DOC 01974047, EEOC DOC 01974048, EEOC DOC 01974049, EEOC DOC 01973440, EEOC DOC 01973441, EEOC DOC 01973442