BRENDA STORY, APPELLANT,
v.
WILLIAM J. HENDERSON, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY.

Request Nos. 
05970083
 (01955581), 05970084 (01955582), 05970218 (01956549)
Appeal No. 01970291
Agency Nos. 4-G-770-1346-95, 4-G-770-1345-95, 4-G-770-1422-95, 4-G-770-1247-96

May 22, 1998

DECISION

Since the beginning of fiscal year 1994, appellant has filed approximately forty-seven appeals with the Commission. The Commission herein addresses three requests for reconsideration and one appeal from a final agency decision procedurally dismissing appellant's complaints.

REQUESTS FOR RECONSIDERATION

General Standards

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

Request Nos. 05970083, 05970084, and 05970218

In Request Nos. 05970083, 05970084, and 05970218, appellant requests that the Commission reconsider previous decisions, Appeal Nos. 01955581, 01955582, and 01956549 respectively, which affirmed the agency's dismissal of three of appellant's complaints on the grounds that they failed to state processable claims.

In Appeal No. 01955581 (September 10, 1996), appellant alleged that she received no response from various agency departments after she had requested information under the Freedom of Information Act and the Privacy Act; that the agency improperly conducted EEO counseling by mail; that she was denied the use of agency supplies, equipment, and storage in the processing of her EEO complaints; that she was denied official time for complaint processing; that she was not permitted to remain anonymous during the processing of her complaints; that she was not free from restraint during the processing of her complaints; that no mediation was provided by the agency; and that the agency was not in compliance with the Paper Reduction Act.

In Appeal No. 01955582 (September 10, 1996), appellant alleged that a physician who performed a fitness-for-duty examination was not board-certified; that the agency improperly conducted EEO counseling by mail; that she was denied the use of agency supplies, equipment, and storage in the processing of her EEO complaints; that she was denied official time for complaint processing; that she was not permitted to remain anonymous during the processing of her complaints; that she was not free from restraint during the processing of her complaints; that the agency was not in compliance mediate her complaint; and that the agency was not in compliance with the Paper Reduction Act. The agency accepted for investigation one allegation regarding the issuance of a letter of warning. This allegation was the subject of a final agency decision dated February 1, 1996, and is not before the Commission in this request for reconsideration.

In Appeal No. 01956549 (October 23, 1996), appellant alleged that the agency improperly conducted EEO counseling by mail; that she was denied the use of agency supplies, equipment, and storage in the processing of her EEO complaints; that she was denied official time for complaint processing; that she was not permitted to remain anonymous during the processing of her complaints; and that she was not free from restraint during the processing of her complaints. The agency accepted for investigation one allegation regarding the agency's purported lack of cooperation in assisting appellant in retrieving records. This allegation is not before the Commission in this request for consideration.

For the reasons set forth herein, appellant's requests are denied.

Appeal No. 01970291

The agency dismissed appellant's complaint for failure to state a claim. In her complaint, appellant alleged that the agency discriminated against her on the bases of disability and in reprisal for prior protected activity in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq. Appellant's complaint was comprised of the following six allegations: (1) the agency did not cooperate in attempts to resolve her complaint at the lowest possible level; (2) she was denied EEO counseling; (3) she did not receive supplies, equipment, and storage for the processing of her complaints; (4) she was denied official time for the processing of her complaints; (5) she was not permitted to remain anonymous during the processing of her complaints; and (6) she was not free from restraint during the processing of her complaints.

ANALYSIS AND FINDINGS

The regulations implementing the statutory language of Title VII are subject to strict compliance once an equal employment opportunity complaint has been accepted for investigation. See generally 29 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 or processes and its procedure. Buren v. USPS, EEOC Request No. 05850299 (November 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 complaint'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 that which it was designed to accomplish. See Buren, supra.

The Commission has carefully reviewed the requests for reconsideration, and the appeal 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. This is evident in the subject matter of the cases presently before this Commission. For example: all three requests for reconsideration and the appeal address the agency's purported failure to provide adequate EEO counseling; its purported denial of appellant's access to supplies, equipment, and storage for the processing of her EEO complaints both in the instant complaints and in previously filed complaints; the purported denial of official time for the processing of her EEO complaints; and the purported failure of the agency to resolve her complaints. While not inclusive, the above listing is instructive. We are, moreover, not unmindful that appellant is not a novice in regard to the EEO complaint process. The Commission takes notice, for example, that in a two and one-half year period (December 1994 - June 1997), thirty-nine decisions were issued on appellant's appeals from agency dismissals. In the complaints that were the subject of those appeals, appellant repeatedly raised the identical or similar matters that are before the Commission in the instant case. Moreover, appellant's extensive history of filing appeals has been noted by the Commission, and appellant has been expressly cautioned that it retains the right to protect its processes and procedures from misuse and abuse. See e.g., Story v. USPS, EEOC Request No. 05960499 (June 12, 1997); Story v. USPS, EEOC Request No. 05960102 (October 18, 1996); Story v. USPS, EEOC Appeal No. 01966093 (March 14, 1997).

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 process; 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 constructed as a 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.

CONCLUSION

Based on the foregoing, appellant's requests to reconsider the decisions in EEOC Appeal Nos. 05970083, 05970084, and 05970218 are hereby DENIED. The Commission AFFIRMS the agency's dismissal of appellant's complaint, which is the subject of Appeal No. 01970291.

STATEMENT OF RIGHTS - ON REQUESTS FOR RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION

The decision of the Commission is final as to the complaints addressed in EEOC Request Nos. 05970083; 05970084; and 05970218. 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 you 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 (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.

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