Mark Kessinger v. United States Postal Service 01976399 June 8, 1999 Mark Kessinger, ) Appellant, ) ) ) ) v. ) Appeal No. 01976399 et al.<1> ) Agency No. 4-G-770-0530-97 et al. William J. Henderson, ) Postmaster General, ) United States Postal Service, ) Agency. ) ______________________________) Decision Appellant currently has ninety-nine (99) appeals involving 110 complaints pending with the Commission. The vast majority of the appeals addressed herein were docketed after October 1, 1998. All of the complaints involved herein were dismissed for procedural reasons by the agency.<2> All of them allege reprisal as the sole basis for filing the complaints. The Commission has long recognized that it has the inherent power to control and prevent abuse of its orders or processes and its procedure. Buren v. USPS, EEOC Request No. 05850297 (November 18, 1985); Hooks v. USPS, EEOC Appeal No. 01953852 (November 28, 1995). The procedures contained in the Commission's regulations at 29 C.F.R. §1614 describe the process by which allegations of discrimination are processed in the Federal sector, consistent with the Commission's goal of eliminating or preventing unlawful employment discrimination. The procedures set forth should not be misconstrued as substitutes for either inadequate or ineffective labor management nor as an alternative or substitute for labor management disputes. Hooks, supra. On rare occasions, the Commission has applied abuse of process standards to particular complaints. The 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) and Wrenn v. EEOC, EEOC Appeal No. 01932105 (August 19, 1993). Abuse of process can be defined as a clear pattern of misuse of the process for ends other than which it was designed to accomplish. See Buren, supra. In Kessinger v. USPS, EEOC Request No. 05970408 (May 30, 1997), in a footnote the Commission noted that appellant had twenty-six (26) cases pending with the Commission and that twenty-one (21) were closed. It was also noted that the agency stated that appellant had filed 161 complaints, including sixty-five (65) class actions. Appellant was put on notice of the Commission's right to protect its processes from misuse and abuse. Thereafter in Kessinger v. USPS, EEOC Request No. 05970898 et al. (January 4, 1999), the Commission found that appellant had engaged in the abuse of process and dismissed twenty (20) requests for reconsideration (encompassing fifty-one (51) appeals and fifty-three (53) complaints) and fifty (50) appeals (involving eighty-five (85) complaints). Appellant's request for reconsideration of this decision was denied. Kessinger v. USPS, EEOC Request Nos. 05990342 and 05990348 (May 20, 1999). Given that another ninety-nine (99) appeals are before the Commission at this time, a clear pattern of abuse is emerging. The Commission has carefully reviewed all of the appeals considered herein as listed in Attachment A. The vast majority involve complaints that were dismissed for failure to state a claim - primarily dealing with appellant's unhappiness with the agency's EEO process.<3> For example, eighty-one (81) of the complaints concerned EEO forms, EEO time, the actions of the EEO counselor, an "illegal log system", failure to settle at the informal stage, the affidavit forms were overly broad and redundant, etc.<4> More telling is that of the instant appeals, forty-two (42) involve complaints dismissed by the agency as duplicates of a previous complaint (Agency No. 4-G-770-0189-98, EEOC Appeal No. 01984094, which contained 60 allegations) which was dealt with in the Commission's earlier decision<5> (EEOC Request No. 05970898 et al., supra). Seven other appeals at issue herein were dismissed as duplicates of other complaints as well. In addition, many of the complaints dismissed by the agency were identified as having more than one duplicate. For example, in EEOC Appeal No. 01992417, appellant's allegation that the agency uses an illegal log system was identified in the counselor's report as being a duplicate of four other complaints, and a second allegation dealing with limited time for pursuing his complaints causing him to work harder was a duplicate of eleven (11) other complaints.<6> While not inclusive, the above narrative of appellant's complaints and appeals evidences a clear intent to overburden the EEO system with duplicate and redundant complaints on matters which have been found not to state a claim and have been adjudicated as such. Further, the Commission notes that appellant's latest appeals now contain a check off form, developed by appellant, where he checks off the appropriate argument, depending on the issue in the dismissed complaint that he is appealing. Clearly, appellant is knowingly filing repetitive complaints and appeals with the intent to "clog" the EEO system. He has blatantly overburdened the administrative system by filing these complaints. What is presented is another concerted effort 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 this system, which is designed to protect innocent individuals from discriminatory practices. Thus, this Commission declines to entertain the enumerated matters any further because appellant is clearly abusing the process.<7> Appellant is strongly cautioned as to continuing such practices. As matters now stand, his arguments carry little credibility and weight given his record before the Commission. Appellant's use of the EEO system has evidenced a pattern of abuse, and he is reminded that the agency may severely limit the amount of official EEO time, if any, for complaints which are filed merely to overburden the system and perpetuate a pattern of abuse. Having found that appellant has engaged in the abuse of the EEO process, the Commission dismisses all of the aforementioned appeals. 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, 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. 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. See 29 C.F.R. §1614.604(c). 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. 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: June 8, 1999 _______________ ______________________________ Date Frances M. Hart Executive Officer Executive Secretariat ATTACHMENT A CASES ADDRESSED HEREIN APPEAL NO. AGENCY NO. 01976399 4-G-770-0530-97 01980478 4-G-770-0028-97 01980485 4-G-770-0031-98 01980869 4-G-770-0036-98 4-G-770-0040-98 (7 complaints) 4-G-770-0056-98 4-G-770-0066-98 4-G-770-0071-98 4-G-770-0072-98 4-G-770-0069-98 01980872 4-G-770-0001-97 01980873 4-G-770-0047-98 4-G-770-0051-98 01980876 4-G-770-0001-98 01980883 4-G-770-0077-98 4-G-770-0076-98 4-G-770-0067-98 4-G-770-0054-98 4-G-770-0037-98 01986370 4-G-770-0530-97 01986460 4-G-770-0487-98 01986463 4-G-770-0048-98 01986734 4-G-770-0382-98 01990245 4-G-770-0188-98 01990710 4-G-770-0671-98 01990711 4-G-770-0698-98 01990712 4-G-770-0670-98 01990713 4-G-770-0700-98 01990714 4-G-770-0701-98 01990717 4-G-770-0706-98 01990718 4-G-770-0719-98 01990719 4-G-770-0707-98 01990720 4-G-770-0711-98 01990721 4-G-770-0708-98 01990722 4-G-770-0069-98 01990723 4-G-770-0708-98 01990724 4-G-770-0672-98 01990725 4-G-770-0720-98 01990726 4-G-770-0718-98 01990879 4-G-770-0684-98 01990880 4-G-770-0682-98 01990881 4-G-770-0704-98 01990882 4-G-770-0703-98 01990883 4-G-770-0713-98 01990884 4-G-770-0678-98 01990885 4-G-770-0712-98 01991073 4-G-770-0702-98 01991580 4-G-770-0679-98 01991582 4-G-770-0676-98 01991583 4-G-770-0716-98 01991584 4-G-770-0717-98 01991585 4-G-770-0721-98 01991586 4-G-770-0680-98 01991587 4-G-770-0866-98 01991588 4-G-770-0724-98 01991691 4-G-770-0683-98 01991692 4-G-770-0674-98 01991694 4-G-770-0374-98 01991695 4-G-770-0710-98 01991698 4-G-770-0705-98 01991700 4-G-770-0677-98 01991701 4-G-770-0715-98 01991922 4-G-770-0413-98 01992208 4-G-770-0441-98 01992209 4-G-770-0394-98 01992210 4-G-770-0398-98 01992212 4-G-770-0399-98 01992213 4-G-770-0400-98 01992409 4-G-770-0402-98 01992410 4-G-770-0417-98 01992411 4-G-770-0418-98 01992412 4-G-770-0408-98 01992413 4-G-770-0917-98 01992414 4-G-770-0924-98 01992415 4-G-770-0883-98 01992416 4-G-770-0889-98 01992417 4-G-770-0922-98 01992418 4-G-770-0884-98 01992419 4-G-770-0881-98 01992613 4-G-770-0878-98 01992614 4-G-770-0880-98 01992615 4-G-770-0865-98 01992616 4-G-770-0885-98 01992617 4-G-770-0879-98 01992636 4-G-770-0870-98 01992637 4-G-770-0882-98 01992638 4-G-770-0867-98 01992639 4-G-770-0888-98 01992640 4-G-770-0887-98 01992641 4-G-770-0872-98 01992642 4-G-770-0886-98 01992821 4-G-770-0921-98 01992822 4-G-770-0920-98 01992823 4-G-770-0919-98 01992824 4-G-770-0916-98 01992826 4-G-770-0913-98 01992827 4-G-770-0912-98 01992828 4-G-770-0911-98 01993020 4-G-770-0861-98 01993021 4-G-770-0934-98 01993022 4-G-770-0933-98 01993023 4-G-770-0932-98 01993024 4-G-770-0931-98 01993025 4-G-770-0923-98 01993026 4-G-770-0930-98 01993027 4-G-770-0929-98 01993028 4-G-770-0928-98 01993029 4-G-770-0926-98 01993030 4-G-770-0927-98 01993031 4-G-770-0925-98 1The cases being addressed herein are listed in Attachment A to this decision. 2The Commission notes that any allegations the agency may have accepted for investigation are not at issue in the instant appeals. 3The agency sometimes gave more than one reason for dismissing a complaint. In addition, even where the agency dismissed a complaint for being a duplicate of another complaint, a review of the record showed that the allegations at issue failed to state a claim. 4The Commission has held that an allegation which relates to the processing of a previously filed complaint does not state an independent allegation of employment discrimination. Short v. Dept. of the Air Force, EEOC Appeal No. 01976035 (May 13, 1998), citing Kleinman v. USPS, EEOC Request No. 05940579 (September 22, 1994). The proper method for raising such allegations would be within the processing of the previously filed complaint (i.e. the complaint allegedly adversely affected by the EEO process) or an appeal from a final agency decision issued therein. Short, supra. Any remedial relief to which appellant would be entitled would necessarily involve the processing of the underlying complaint. Id. Thus, concerns about the EEO process must be raised in the context of an underlying complaint of discrimination and do not state an independent allegation of employment discrimination. But cf. EEO Management Directive 110 at 4-8 (A complaint alleging that a complainant is being treated differently or is being adversly affected by a policy or practice having a discriminatory effect on the processing of his complaint states a claim.) 5Many of the issues mentioned in the instant decision are identical to those appellant raised and which were addressed in EEOC Request No. 05970898 et al., supra - i.e. the agency's alleged failure to pay for postage for filing his complaints, the affidavit form requests irrelevant information, the agency did not put informal numbers on forms, he was not given time to review previous complaints, that complainants whom he represented were contacted or sent information by the EEO counselor, or the agency did not do a proper investigation. Appellant also filed multiple complaints concerning his use of official time, primarily that he needed more time than the agency allotted. 6Of the 99 appeals, few contained any allegations going to actual events in the work place - two had instances where a supervisor told him to return to his work unit after he was found in another unit, one involved the supervisor offering appellant the opportunity to change his work schedule, and two involved "attempts" by the supervisor to discipline appellant. Thirteen appeals involve dismissals for failure to timely file a formal complaint. Also of interest were three complaints involving appellant's failure to respond to requests for affidavits. While the records in the files do not contain the actual requests, appellant admits to receiving the requests, but argues that the affidavit form is redundant. Given the number of complaints filed by appellant regarding trivial matters, it is hardly surprising that the agency is requesting affidavits for clarification purposes. 7This decision is not to be construed as a holding that the mere filing of numerous complaints constitutes an abuse of process.