01973537
03-08-2000
Barbara A. Reisinger, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Barbara A. Reisinger, )
Complainant, )
)
) Appeal Nos. 01973537
) 01985679
) 01986702
) 01990354
) 01992561
) 01992908
) 01994090
) 01994091
v. ) 01994618
) Agency Nos. 4-B-140-0029-97
) 4-B-140-0057-98
) 4-B-140-0078-98
) 4-B-140-0009-98
) 4-B-140-0008-99
William J. Henderson, ) 4-B-140-0018-99
Postmaster General, ) 4-B-140-0053-99
United States Postal Service, ) 4-B-140-0062-99
Agency. ) 4-B-140-0025-99
____________________________________)
DECISION
I. INTRODUCTION
Complainant has filed seventeen appeals from final agency decision (FADs)
and one request for reconsideration with the Commission since 1995.
Eleven (11) of complainant's appeals presently are pending with the
Commission, nine (9) of which involve similar claims and grounds for
dismissal.<1> The Commission will address nine (9) of complainant's
pending appeals herein, pursuant to its discretion to consolidate
multiple complaints of discrimination from the same complainant for
joint processing. See 29 C.F.R. �1614.606.
II. BACKGROUND
In a prior complaint, Agency Number 4-B-140-0037-97, complainant alleged
that there were knots in her collection key chain, that a co-worker
played his radio loudly to harass complainant, that there was garbage
in complainant's jeep when complainant was assigned to Route 1922, that
complainant was denied overtime on December 20 and 21, 1996, and that
management failed to provide a safe work environment when complainant was
hit by a co-worker entering through the exit door. The agency accepted
all of complainant's claims except the incident involving knots in the
collection key chain. On appeal, the Commission found that the dismissed
incident was part of a claim of harassment, and therefore could not be
separated from complainant's accepted claims. See Reisinger v. United
States Postal Service, EEOC Appeal No. 01973538 (Dec. 4, 1997).
Subsequently, complainant filed numerous complaints of harassment,
repeatedly alleging discrimination in reprisal for prior EEO activity
from, inter alia, radio usage or radio policies, knots in her key chain,
problems with the work performance of co-workers, garbage, and comments
from co-workers to complainant on various matters including complainant's
hat and socks, union elections, other co-workers, and supervisors.<2> In
each case, complainant alleged that she was subjected to discrimination
in reprisal for prior EEO activity. In all nine (9) of the complaints
addressed herein, the agency dismissed some or all of the claims for
failure to state a claim. In each of these dismissals, the agency found
that no term, condition, or privilege of complainant's employment was
adversely affected, and that complainant's claims did not rise to the
level of a cognizable harassment claim. Also, the agency noted in several
FADs that complainant established a pattern of misuse of the EEO process,
and cited to a Recommended Decision (RD) of an EEOC Administrative Judge
(AJ), dated June 30, 1998, which cautioned the agency to consider the
burden complainant was placing on the administrative EEO system given that
at the time complainant had filed over fifty (50) EEO complaints, many
of which contained the same or similar claims.<3> The agency noted in
several appellate briefs that complainant has contacted an EEO Counselor
approximately every thirty (30) days since January 1995, and has filed
over seventy (70) EEO complaints. The agency attached print-outs of
complainant's EEO history to support its arguments of abuse of process.
The background of the pending complaints addressed by the present decision
are as follows:<4>
Appeal Number 01973537
Complainant alleged: (1) on November 8 and 12, 1996, there were knots in
complainant's collection key chain; (2) complainant's supervisor laughed
at complainant after a social announcement was made; (3) on November 13,
1996, there was garbage in complainant's jeep; and (4) on November 13,
1996, complainant was authorized to work one hour of overtime that later
was unauthorized. The agency accepted claims (3) and (4), but dismissed
claims (1) and (2).
Appeal Number 01985679
In a formal complaint dated May 16, 1998, complainant alleged: (1)
on March 23, 1998, a co-worker commented about union elections; (2)
on March 27, 1998, a co-worker rushed in front of complainant; (3)
on March 28, 1998, a co-worker blocked complainant's way; and (4) on
March 30, 1998, the union steward mentioned that no one voted for him
(the steward) in the election. The agency dismissed the complaint for
failure to state a claim.
C. Appeal Number 01986702
In a formal complaint dated August 2, 1998, complainant alleged: (1) on
June 22, 1998 a co-worker commented that complainant should feel guilty;
(2) also on June 22, 1998, Management commented that complainant was
paranoid and would not file so many EEO complaints if she had to pay
for them; (3) a co-worker commented about complainant's knee socks
and furry hat; (4) on June 24, 1998 complainant overheard a co-worker
tell the supervisor that he (the co-worker) felt threatened; and (5) on
June 30, 1998, complainant reported an injury and now fears discipline.
The agency dismissed the complaint for failure to state a claim.
D. Appeal Number 01990354
In a formal complaint dated March 20, 1998, complainant alleged: (1) on
September 24, 1997, a co-worker's radio was too loud, and the co-worker
made harassing comments to complainant; (2) co-workers are allowed to use
radios despite the �no radio� policy at complainant's work site; and (3)
a co-worker sorted mail off the clock for the route that complainant was
to carry the next day. The agency dismissed the complaint for failure
to state a claim.
E. Appeal Number 01992561
In a formal complaint dated November 15, 1998, complainant alleged: (1)
on August 10, 1998, complainant was denied overtime; (2) also on August
10, 1998, there were trays left on the work room floor; (3) on August 11,
1998, a co-worker made comments about complainant going to the EEO office;
(4) on August 12, 1998, complainant's supervisor told complainant that she
would speak to her (the supervisor's) attorney about the conversation she
(the supervisor) had with a box clerk; (5) on August 14, 1998, a co-worker
walked by complainant and asked what smelled; (6) also on August 14,
1998, a supervisor told complainant not to involve anyone else; (7)
on August 20, 1998, complainant was issued a Letter of Warning (LOW)
for leaving mail in the hot case; (8) on August 26, 1998, complainant
was asked why she was going through a co-worker's case drawer; (9) also
on August 26, 1998, a supervisor did not respond when complainant asked
if she should take out parcels; (10) on August 27, 1998, a supervisor
called complainant a liar; (11) also on August 27, 1998, a supervisor
refused to hear complainant's request to change a co-worker's route
around; (12) on August 29 and September 1, 1998, co-workers left mail
in the hot case but were not disciplined; (13) on September 3, 1998,
a supervisor commented �you think you are perfect;� (14) on September 5,
1998, a co-worker was given mail from the hot case and questioned where
it came from; and (15) on September 8, 1998, a co-worker left DPS First
Class Mail and was not disciplined. The agency accepted claims (1) and
(7), but dismissed the remaining claims for failure to state a claim.
Appeal Number 01992908
In a formal complaint dated December 22, 1998, complainant alleged: (1)
on September 15 and 23, 1998, complainant was told that there were knots
in the collection key chain by the Registry Clerk, and that the clerk
was taking out the knots; (2) in September 1998, complainant observed
a co-worker looking for something in an un-canceled mail tub, and later
found out that the co-worker was issued a LOW; and (3) in September 1998,
a co-worker verbally harassed complainant (comments not specified).
The agency dismissed the complaint for failure to state a claim.
Appeal Number 01994090
In a formal complaint dated March 1, 1999, complainant alleged: (1)
on December 17, 1998, the union steward told complainant to mind her own
business after complainant told the steward that he was wrong to collect
money from his co-workers for his own charity; and (2) on January 2,
1999, a co-worker derogatorily commented that complainant was casing
mail �sitting down.� The agency dismissed the complaint for failure to
state a claim.
Appeal Number 01994091
In a formal complaint dated March 1, 1999, complainant alleged that
on an unspecified date between December 17, 1998 and January 7, 1999,
a co-worker threw a white fiber tub that almost hit complainant.
The agency dismissed the complaint for failure to state a claim.
Appeal Number 01994618
In a formal complaint dated February 22, 1999, complainant alleged:
(1) on October 12 and 20, 1998, a co-worker removed the tub of rubber
bands from his case on the days prior to complainant being assigned
to the co-worker's route; and (2) in October 1998, a co-worker made
comments about a supervisor who was formerly in-charge of the unit.
The agency dismissed the complaint for failure to state a claim.
Complainant argues on appeal in these cases that she has suffered from a
progressive pattern of harassment, and that the incidents state a claim
when considered as part of the harassment claim. Complainant also claims
that her complaints were improperly processed because the EEO Counselors
did not record all of the information from the counseling sessions, did
not check with complainant's witnesses, did not represent the carriers
like they should, and were not partial to the carriers. Complainant
argues that the agency's improper administration of the process, and its
acceptance of her supervisor's statements as true, is the only abuse of
process stemming from her complaints. Complainant also claims that she
continues to file complaints because she would be fired if she ceased.
Complainant argues that she has no other options besides the EEO process,
and that �EEO is my offense� against her supervisors.
III. ANALYSIS AND FINDINGS - ABUSE OF PROCESS
This Commission has the inherent power to control and prevent abuse
of its orders and processes and procedures. See Buren v. United
States Postal Service, EEOC Request No. 05850299 (Nov. 18, 1985). The
procedures contained in Commission regulations provide the process by
which claims of discrimination are processed in the Federal sector, with
a 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 relations or an
alternative or substitute for labor-management disputes. Sessoms v. United
States Postal Service, EEOC Appeal No. 01973440 (June 11, 1998).
EEOC Regulations provide for dismissal of complaints that are part
of a �clear pattern of misuse of the EEO process for a purpose other
than the prevention and elimination of employment discrimination.� 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 107(a)(9)). The criteria required to justify dismissal
for abuse of process, as set forth in Commission decisions, must be
applied strictly. Id. These criteria require:
(i) Evidence of multiple complaint filings; and
(ii) Claims that are similar or identical, lack specificity or involve
matters previously resolved; or
(iii) Evidence of circumventing other administrative processes,
retaliating against the agency's in-house administrative processes or
overburdening the EEO complaint system.
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. See generally
Love v. Pullman, Inc., 404 U.S. 522 (1972); Wrenn v. Equal Employment
Opportunity Commission, EEOC Appeal No. 01932105 (Aug. 19, 1993).
In the present cases, complainant has made a concerted attempt
to retaliate against agency officials, not to obtain relief from
discrimination. Complainant admitted that she was using EEO for purposes
other than thwarting discrimination -- complainant considered the EEO
process �my offense� against agency officials. Further, complainant's
use of the process every thirty days for four (4) years to raise every
occurrence in her employment, regardless of the merit of the claim,
or whether similar or the same matters have been addressed in prior
complaints, overburdens the administrative process. The Commission cannot
permit a party to utilize the EEO process for this illegitimate goal,
nor can it allow individuals to overburden the system, which is designed
to protect individuals from discriminatory practices. Therefore, the
Commission declines to entertain the enumerated matters any further.<5>
CONCLUSION
Accordingly, the agency's dismissals delineated above are AFFIRMED for
the reasons set forth herein.<6>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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. 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 (Z1199)
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:
March 8, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant 1Complainant's two (2) remaining
appeals concern merit findings of no discrimination, and are not
addressed in the present decision.
2A review of the claims handled by the Commission or an AJ, past and
present, reveals that complainant raised three (3) claims of knots
in a key chain, five (5) claims concerning discipline given to, or
not given to, a co-worker, seven (7) claims of garbage being left in
complainant's work area or jeep, and twelve (12) claims concerning
radio usage. This review does not include approximately sixty (60)
complaints, which have not yet reached the Commission for processing.
3The AJ found no discrimination in twenty-seven (27) claims contained
in seven different complaints (Agency Numbers 4-B-140-0037-97,
4-B-140-0042-97, 4-B-140-0050-97, 4-B-140-0059-97, 4-B-140-0070-97,
4-B-140-0076-97, and 4-B-140-0083-97). The agency adopted the AJ's RD.
Complainant appealed to the Commission in EEOC Appeal No. 01986276,
which is not being addressed in the present decision.
4On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
5The Commission recognizes that the new regulations require partially
dismissed complaints to be remanded for consolidation with the issues
accepted for investigation. However, the Commission finds that remand
of the dismissed claims from 01973537 and 01992561, under the present
circumstances, is impractical and not necessary.
6The Commission also advises the agency of its responsibility under
the new regulations to consolidate all pending complaints into one
investigation. See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified
as 29 C.F.R. � 1614.606)).