Charles B. Buren et al. (See attachments)
v.
United States Postal Service

Request No. 
05850299
Appeal No. 01842730
Agency No. 3-2-0357-5

November 18, 1985

DENIAL OF REQUEST TO REOPEN

INTRODUCTION

Beginning on April 4, 1984, Charles B. Buren (hereinafter referred to as appellant) filed requests with the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider its decisions in Charles B. Buren v. United States Postal Service, EEOC Appeal No. 01850615 et al. (December 31, 1984). During this period, the appellant also initiated a number of appeals, as enumerated in the attachment.

Pursuant to EEOC Regulation 29 C.F.R. 1613.251(b), the Commission has determined that final consideration of the appellant's complaints will be greatly facilitated if they are considered simultaneously with the referenced cases cited herein. The administrative process would be expedited in this manner, rather than waiting until final determination on the numerous individual complaints. Accordingly, the Commission expressly determines that there is no just reason for delay in entering a separate final determination on each individual complaint. This decision is applicable specifically to the requests to reopen and appeals identified in this decision. The Commission takes this action for the following reasons:

a) volume of complaints and requests involved in this matter;

b) volume of multiple complaints by the appellant; and

c) to effectuate better utilization of the administrative process.

EEOC Regulation 29 C.F.R. 1613.235 sets forth the criteria for reopening a previous decision of this Commission. Pursuant to the regulations, the Commissioners may, in their discretion, reopen and reconsider any previous decision if the party requesting reopening and reconsideration submits written evidence or argument which tends to meet one or more of the regulatory criteria:

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

2. The previous decision involves an erroneous interpretation of law or regulation or misapplication of established policy; or

3. The previous decision is of precedential nature involving a new or unreviewed policy consideration that may have effects beyond the actual case at hand or is otherwise of such an exceptional nature as to merit the personal attention of the Commissioners.

The appellant does not specifically refer to any of the above criteria as being the basis for his requests to reopen. However, the appellant does challenge the validity of the Commission's findings in the appellate decisions below. The Commission has determined that the requests cited herein do not meet the regulatory criteria. However, because the sum of this matter involves policy considerations that have effects beyond the cases at hand the Commission elects to issue this consolidated decision.

For the reasons discussed below, the requests to reopen are denied. Moreover, the Commission deems it appropriate to address certain appeals enumerated herein as part of this decision.

BACKGROUND

The appellant filed a request with the EEOC on April 4, 1984 to reopen and reconsider its decision in Charles B. Buren v. United States Postal Service, Docket Number 01850615 (hereinafter referred to as agency). The appellant has filed a total of thirty-eight (38) requests to reopen on previously issued appellate decisions. The appellant asserted the alleged underlying employment discrimination was based on reprisal, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.

The appellant is a former employee of the agency. The incidents involved in these requests to reopen transpired while the appellant was employed as a Letter Carrier, T-6, in the Houston Mail Sectional Center Facility in the Southern Region. For clarity and simplicity, cases which were treated similarly by the agency or which arise from similar facts will be considered according to the specific issue involved. Each complaint is identified by both the Commission's docket number and the agency case number. The basis alleged, where identified, is also included.

I. Employee's Quality Assurance Pin Usage

A. Request to Reopen Appeal No. Agency No. 1. 05850154 01842825 3-2-2805-4 basis: reprisal

B. Factual and Procedural Background

The appellant's EEO complaint alleged he was retaliated against for having previously filed EEO complaints, when he was instructed to wear a quality service button pin which he felt was unsafe. The final agency decision was rendered on June 26, 1984. The agency held the complaint was not within the intent of the purview of Equal Employment Opportunity, pursuant to 29 C.F.R. 1613.215. The appellant filed an appeal from the final agency decision with the EEOC. The appellant alleged the agency singled him out of a group and directed him to wear a quality service button pin. On appeal, the Commission held the complaint issue moot, since the appellant was no longer required to wear the button pin.

II. Physical Attack by Dog / Threats by Dog Owner

A. Request to Reopen Appeal No. Agency No. 1. 05850152 01842393 3-2-2294-4 basis: reprisal 2. 05850153 01842453 3-2-2950-4 basis: reprisal B. Factual and Procedural Background

The appellant's complaint cited an incident of dog interference and threats by the dog's owner. The appellant further alleged that his supervisor failed to investigate the reported incident, due to prior EEO complaints filed by the appellant. The final agency decision was issued on July 17, 1984, which cancelled the appellant's complaint for failure to prosecute. The appellant refused to accept the agency's agreement to comply with its animal interference guidelines in resolution of his EEO complaint. The appellant filed an appeal from the final agency decision with the EEOC. On appeal, the Commission affirmed the agency's decision to cancel the appellant's complaint. The Commission held the appellant's failure to engage in good faith attempts to resolve the complaint informally to be tantamount to a failure to prosecute.

III. Removal of 'Dogwatch' Bumper Sticker from Jeep

A. Request to Reopen Appeal No. Agency No. 1. 05850157 01842132 3-2-2679-4 basis: reprisal 2. 05850250 01850049 3-2-3441-4 basis: reprisal

B. Factual and Procedural Background

The final agency decision was rendered on June 26, 1984, which rejected the appellant's complaint pursuant to EEOC Regulation 29 C.F.R. 1613.215. The appellant filed an appeal from the final agency decision with the EEOC. On appeal, the Commission affirmed the agency's decision to reject the appellant's complaint. The Commission held the appellant had not shown that he was aggrieved within the meaning of EEOC Regulation 29 C.F.R. 1613.215.

IV. Alleged Inaction on the part of Management to Repair Agency Property (Jeep)

A. Request to Reopen Appeal No. Agency No. 1. 05850151 01842133 3-2-2680-4 basis: reprisal B. Factual and Procedural Background

On April 24, 1984, appellant filed an EEO complaint, in which he alleged retaliation for filing prior complaints. In retaliation, he asserted the agency intentionally failed to repair his assigned agency vehicle. The appellant's complaint was subsequently resolved with an informal settlement agreement. Although, the agency had indicated the terms of the settlement agreement had been implemented, the appellant remained dissatisfied with the results. Consequently, the appellant requested reinstatement of his original complaint. On June 26, 1984, the final agency decision was rendered. The agency rejected the complaint for lack of purview, stating the appellant had not suffered harm. The appellant filed an appeal from the final agency decision. On appeal, the Commission affirmed the final agency decision. The Commission affirmed the agency's action in light of the terms contained in the settlement agreement.

V. Alleged Management Interference - Appellant's Usage of P.O. Box

A. Request to Reopen Appeal No. Agency No. 1. 05850299 01850615 3-2-0357-5 basis: reprisal - sex (male) B. Factual and Procedural Background

On October 26, 1984, the appellant filed an EEO complaint wherein he alleged discrimination because of reprisal. In the complaint, as on appeal, the appellant asserted that since he was not receiving his EEO correspondence at his workplace as he had requested, he had to rent a post office box. The final agency decision was issued on December 4, 1984. The agency cancelled the complaint for failure to prosecute, the agency noted that '(t)he rental of a Post Office Box does not constitute being an aggrieved person in accordance with 29 C.F.R. 1613.212(a). The appellant filed an appeal from the final agency decision with the EEOC on January 23, 1985. On appeal, the Commission affirmed the final agency's decision.

VI. Grievance Issues

A. Request to Reopen Appeal No. Agency No. 1. 05850253 01850929 3-2-0616-5 basis: reprisal 2. 05850301 01850607 3-2-0228-5 basis: reprisal - race (Caucasian) 3. 05850302 01850617 3-2-0359-5 basis: reprisal B. Factual and Procedural Background

These three complaints, alleging reprisal in the agency's denial of a grievance, were rejected as 'not within the intent of the purview of Equal Employment Opportunity'. The record reflects that the appellant did not allege, nor is there any evidence indicating that appellant suffered loss or injury. The final agency decision cancelled the complaints for not being within purview. On appeal, the Commission held the agency was in error to reject these complaints on this basis and viewed them not as appeals of grievances incorrectly denominated as EEO complaints, but as allegations that specific actions were taken or comments made in reprisal for protected activity. They are therefore squarely within the 'intent of the purview of Equal Employment Opportunity', 29 C.F.R. 1613.262(a). The mere allegations of reprisal is sufficient to render the complaint acceptable; the reprisal itself is harm enough. Smith v. Secretary of the Navy, 659 F.2d 1113, 24 FEP Cases 1638 (D.C. Cir. 1981). However, the Commission held that since the appellant is no longer employed by the agency, no purpose would be served in reversing the agency's decision and remanding the complaints.

VII. Leave Time in Dispute

A. Request to Reopen Appeal No. Agency No. 1. 05850247 01850925 3-2-0120-5 basis: reprisal 2. 05850293 01850983 3-2-1044-5 basis: reprisal 3.05850296 01850932 3-2-0621-5 basis: reprisal 4. 05850300 01850614 3-2-0356-5 basis: reprisal - race (Caucasian)

B. Factual and Procedural Background

The appellant alleged that on September 10, 1984, he did not receive payment for 24 hours of leave taken from January 17 through 19, 1984. The initial contact with the EEO Counselor concerning this incident took place on September 13, 1984. The agency therefore rejected the complaint for failure to contact the EEO Counselor in a timely manner. On appeal, the appellant took the position that 'each and every day' he is not paid for his annual leave constitutes a separate violation. The appellant received the disputed paycheck amount two months after the final agency decision was issued. The Commission affirmed the agency's action.

VIII. Uniform Allowance Dispute

A. Request to Reopen Appeal No. Agency No. 1. 05850248 01850886 3-2-1042-5 basis: reprisal B. Factual and Procedural Background

The appellant alleged that on August 22, 1984, as an act of retaliation for his filing previous EEO complaints, the agency failed to explain actions taken against him and his sister regarding their uniform allowance. The agency in reaching its final decision, determined the alleged action concerned another party. The final agency decision was rendered on January 11, 1985. The agency rejected the complaint pursuant to 29 C.F.R. 1613.212(a) and held the appellant was not an aggrieved employee, therefore, the appellant lacked standing to file a complaint. The appellant filed an appeal from the final agency decision with the EEOC. On appeal, the Commission affirmed the agency's decision to reject the appellant's complaint.

IX. Paycheck Denial

A. Request to Reopen Appeal No. Agency No. 1. 05850076 01842101 3-2-2423-4 basis: reprisal 2. 05850098 01841741 3-2-2084-4 basis: reprisal - race (Caucasian) - sex (male) 3. 05850100 01841742 3-2-2069-4 basis: reprisal 4.05850196 01842451 3-2-3051-4 basis: reprisal 5. 05850308 01840302 3-2-4381-4 basis: reprisal

B. Factual and Procedural Background

The appellant alleged that he was discriminated against in reprisal for filing prior EEO complaints, when he failed to receive four (4) paychecks. The record established that appellant had filed additional complaints regarding this matter. The investigation of the complaint revealed that the appellant was terminated from his position with the agency and reinstated pursuant to an arbitration agreement. Subsequent to his reinstatement, he experienced a delay in receiving his paychecks. The agency claimed the delay resulted from the necessary time required to process the proper forms. In addition, the agency claimed that appellant had been issued a salary advance in accordance with 445.321 of the Post Office Financial Handbook. The agency issued final decisions on the filed complaints. Of the five complaints in this section; four were cancelled pursuant to EEOC Regulation 29 C.F.R. 1613.215. The remaining complaint was rejected, as being identical to allegations contained in a prior complaint. The Commission affirmed the agency's final decisions on appeal.

X. Backpay / Overtime

A. Request No. Appeal No. Agency No. 1. 05850158 01842505 3-2-2949-4 basis: reprisal 2. 05850164 01842504 3-2-2946-4 basis: reprisal 3. 05850165 01842506 3-2-2947-4 basis: reprisal 4. 05850166 01842824 3-2-2804-4 basis: reprisal 5.05850251 01850303 3-2-4382-4 basis: reprisal 6. 05850303 01850305 3-2-4111-4 basis: reprisal 7. 05850309 01850606 3-2-4379-4 basis: reprisal B. Factual and Procedural Background

The appellant alleged a backpay award, granted pursuant to a prearbitration agreement, failed to include interest payments. On September 14, 1984, the agency and the appellant entered into an agreement settling four prior EEO complaints. One provision of this agreement concerned the appellant's entitlement to receive backpay for certain pay periods. The appellant asserted that the backpay award he had received was incorrect in that it did not include interest. In addition, the award did not cover the full time for which the appellant should have been paid. The final agency decision cancelled the complaint. The agency held the prearbitration agreement did not provide for payment of interest or penalty on the backpay award. Furthermore, the agency held an appropriate remedy had been granted, noting that the appellant 'voluntarily signed a resolution resolving this issue.' The remaining identical complaints were rejected pursuant to EEOC Regulation 29 C.F.R. 1613.215. On appeal, the Commission affirmed the final agency decisions.

XI. Alleged Inappropriate Conduct on the Part of Management

A. Request to Reopen Appeal No. Agency No. 1. 05850099 01841740 3-2-2057-4 basis: reprisal - race (Caucasian) - sex (male) 2. 05850246 01850933 3-2-0610-5 basis: reprisal 3. 05850249 01850810 3-2-0358-5 basis: reprisal 4.05850295 01850616 3-2-0358-5 basis: reprisal 5. 05850297 01851410 3-2-1211-5 basis: reprisal B. Factual and Procedural Background

The appellant alleged that he was discriminated against in reprisal for filing prior EEO complaints. The agency accepted the initial complaint #3-2-2057-4 and four other complaints for investigation. The agency gave the appellant notice of his scheduled appointment date with the EEO investigator. Thereafter, the appellant requested that the agency reschedule the appointment date for a more convenient time. The EEO investigator informed appellant that his alleged attendance at class, on the date set for his interview was insufficient reason to reschedule the appointment. The EEO investigator added that the appellant's complaint would be cancelled for failure to prosecute, if he failed to appear as scheduled. The appellant did not appear and consequently the agency cancelled the complaint for failure to prosecute.

XII. Rejection/Refusal by Postal Service to Investigate Prior EEO Complaints

A. Request to Reopen Appeal No. Agency No. 1. 05850304 01850611 3-2-03252-5 basis: reprisal

2. 05850305 01850610 3-2-0351-5 basis: reprisal - race (Caucasian) 3. 05850306 01850304 3-2-4383-4 basis: reprisal 4. 05850307 01850609 3-2-0350-5 basis: reprisal 5. 05850308 01850302 3-2-4381-4 basis: reprisal

The complaints all alleged reprisal in the rejection of earlier EEO complaints filed with the agency. Each complaint was cancelled for failure to prosecute, in accordance with 29 C.F.R. 1613.215. However, a better statement of the grounds, viewing the discussions preceding the cancellation in each final agency decision, would clearly be that they were beyond the purview of 29 C.F.R. 1613.212. The complaints may be interpreted in either of two ways. First, if the appellant is expressing his dissatisfaction with the final agency decisions on the earlier EEO complaints, then his rights are set forth in EEO Regulation 29 C.F.R. 1613.233 and .281; he may appeal to this Commission or he may file a civil suit. However, he may not express his dissatisfaction by filling another EEO complaint, concerning identical matters as a means of redress. On the other hand, if he is alleging that the earlier complaints were not processed properly, then the complaints should have been disposed of in accordance with EEO-MB107, which requires that such spin-off complaints be incorporated in the files of the earlier complaints they refer to. The Commission affirmed the agency's final decisions on appeal.

ANALYSIS AND FINDINGS

The Commission reserves the discretion to ultimately determine whether or not to decline to administratively process a complaint which on its face, clearly meets the regulatory criteria. However, this reservation is not without precedent in law. In National Labor Relations Board v. Indiana & Michigan Electric Company, 318 U.S. 9 (1943), the Supreme Court delineated the role of a charge in the Labor Relations area. Considering the fact that much of Title VII law draws upon the National Labor Relations Act and cases thereunder for guidance, the Commission believes that the principles espoused in Indiana & Michigan Electric Company are applicable to the circumstances addressed in this case. The court held that a charge is not proof, it merely sets in motion the machinery of an inquiry. The court went a step further and added '(d)ubious character, evil, or unlawful motives, or bad faith of the informer cannot deprive the Board of jurisdiction to conduct its own investigation.' 318 U.S. at 18. The National Labor Relations Board (NLRB) in its findings in this particular case had concluded that appellant's bad faith destroyed or negated jurisdiction. This conclusion, the Supreme Court held, was clearly erroneous.

Elaborating on this point, the Supreme Court stated that 'the Board may consider misconduct as a material issue to its own decision to entertain and proceed upon the charge. The Board has wide discretion in the issuance of complaints. It is not required by the statute to move on every charge; it is merely enabled to do so. It may decline to be imposed upon or to submit its process to abuse. The Board (may) properly withhold or dismiss its own complaint if it should appear that the charge is so related to a course of violence and destruction, carried on for the purpose of coercing an employer to help herd its employees into the complaining union, as to constitute an abuse of the Board's process.' 318 U.S. at 18 (1943).

In Indiana & Michigan Electric Company v. NLRB, a Labor organization involved in a labor dispute attempted to force an employer to cease recognizing one labor organization and instead grant it recognition, evidence indicated that individuals associated with the organization were involved in the destruction of company property. The court held that the union's conduct was material to the Board's finding. Pursuant to the regulations administered by this Commission, it is empowered to issue such orders and instructions, as it deems necessary to effectuate the intent and purpose of the following statutes: Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. 2000e et seq.; Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. 633a; Rehabilitation Act of 1973, as amended, 29 U.S.C. 791 et seq. The purpose of the statutes is to eradicate and eventually eliminate unlawful employment discrimination in federal employment based on race, color, religion, sex, national origin, age, physical or mental handicap. Similar to the discretion of the NLRB, the Commission finds that it is not required to act on each charge or complaint. However, it is enabled to do so provided that the complaint is filed pursuant to a reasonable belief that an act occurred violative of a basis proscribed by the statutes.

The regulations implementing the statutory language is subject to strict compliance once an equal employment opportunity complaint has been accepted for investigation. See generally 29 C.F.R. Part 1613. 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 or processes and its procedure. The procedures contained in its regulations are no more or no less, than means necessary to eliminating unlawful employment discrimination in federal employment. 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.

While the conduct complained of in the matter under consideration here does not involve violence as was present in Indiana & Michigan Electric Company, the Commission has carefully reviewed the numerous requests, appeals and complaints filed by the appellant. It is the ultimate opinion of this Commission, that the appellant has pursued a scheme involving the misuse or misapplication of the administrative process which he 'justified in itself for an end other than that which it was designed to accomplish.' The appellant in the enumerated cases merely presented frivolous and numerous equal employment opportunity complaints, which cited similar or in some cases identical allegations. A definite pattern of initiating the complaint machinery for any matter of which appellant was dissatisfied had developed, which clearly amounted to an abuse of the administrative process. This is evident in the subject matter of the requests to reopen presently before this Commission. For example: seven requests concern liability for overtime and/or backpay; five requests concern untimely receipt of paycheck; five requests concern alleged misconduct of management officials; five requests concern the rejection/refusal by the agency to process prior complaints; three requests concern the failure to process grievances to the appellant's satisfaction; two requests concern disputed 'dogwatch' bumper stickers on any agency jeep; four requests concern disputed leave time; two requests concern threats by the owner of a dog and physical attack by same on appellant's route. These and certain individual requests reflect only part of appellant's activity. More reflective of the litigious nature of appellant are the additional one hundred twenty (104) appeals, enumerated in the attachments, presently pending with the Commission. This volume contains thirty-nine (39) appeals which concern disputes regarding the agency's processing of grievances; seven (7) concern one emergency suspension, nine (9) concern the agency's refusal to reimburse appellant for travel in processing his complaints; six (6) concern an alleged refusal to pay interest on backpay and three (3) concern errors in appellant's paycheck. While not all inclusive, the above is instructive. The total number of appeals and requests to reopen (142) represents only those complaints presently pending. It should be noted that the 142 complaints were all filed within one year. This does not reflect nor address closed appeals and any cases yet to be received.

The appellant has blatantly overburdened the administrative system by filing these complaints, many of which have no relationship to matters administered by this Commission. Rather, 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 other 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. This decision is not to be construed as a holding that the mere filing of numerous complaints constitutes an abuse of process.

Any subsequent appeals or requests for reconsideration filed by this appellant are subject to summary dismissal by this Commission. 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.

CONCLUSION

After a thorough review of these matters, the Commission denies the requests to reopen its previous decisions and denies further consideration of the subject appeals. This is the Commission's final decision in these matters.

STATEMENT OF APPELLANT'S RIGHTS

You are hereby notified that the attached decision in your case is final. You have the right to file a civil action in the appropriate United States District Court WITHIN THIRTY (30) DAYS from the date that you receive this decision. If any of your claims were based on the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a), AS TO THOSE CLAIMS ONLY, you MAY have up to six years after the right of action first accrued in which to file a civil action. See Lehman v. Nakshian, 453 U.S. 1956 (1981); 29 U.S.C. 633a(f); and 28 U.S.C. 2401(a).

APPOINTMENT OF COUNSEL

If you decide to file a civil action and do not have or unable to obtain the services of any attorney to act on your behalf, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et. seq., as amended, and the Rehabilitation Act of 1973, 29 U.S.C. 791 and 794c, as amended, you may request that the Court appoint an attorney to represent you. The court may, in its discretion, appoint an attorney to represent you and may also permit you to file the civil action without payment of fees, costs, or security. If you want to request appointment of an attorney, your request must be FILED WITH THE COURT WITHIN (30) DAYS from the date that you receive the Commission's decision.

November 18, 1985 
DATE FOR THE COMMISSION: _____________________ 
Executive Officer
 Executive Secretariat