01a50004
11-22-2005
Mark Kessinger, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Mark Kessinger v. United States Postal Service
01A50004
November 22, 2005
.
Mark Kessinger,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 01A50004
Agency Nos. 4G-770-0275-02;4G-770-0045-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 2, 2004, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Complainant filed two complaints alleging that he was subjected to
discrimination on the bases of his race (Caucasian), sex (male), and in
reprisal for prior EEO activity.<0>
ISSUE PRESENTED
The issue presented is whether the Administrative Judge was correct in
dismissing the complaints for abuse of process.
BACKGROUND
The agency accepted the complaints for processing and at complainant's
request, they were referred to an EEOC Administrative Judge (AJ) for
a hearing. The AJ dismissed the complaints for abuse of process.
In his decision, the AJ noted other Commission decisions in which
complainant's complaints have been dismissed for abuse of process.<0>
The AJ found that complainant raised 30 separate allegations against the
agency in 10 separate complaints. He noted that complainant had filed
four motions to amend the pending complaints and that his allegations
involved complainant's unhappiness with the agency's EEO process.
The AJ found that 15 allegations concerned the amount of official time
he was denied or the delay in processing his complaints. The agency
fully implemented the AJ's decision dismissing the complaints.
Parties' Contentions on Appeal
On appeal, complainant claims he was not given notice that the AJ intended
to dismiss his complaints and that the AJ dismissed sua sponte without a
motion from the agency and without permitting him a chance to respond.
He claims that the AJ held a status conference but did not mention that
he intended to dismiss the case. Complainant acknowledges that some
of his claims concern the processing of his complaint but he challenges
the AJ conclusion that the repeated denial of overtime is redundant.
The agency responds to the appeal by noting complainant's history
of abusing the EEO process. The agency argues that complainant's
behavior in pursuing these complaints is identical to the behavior
that resulted in previous dismissals for abuse of process. The agency
opposes complainant's claims that the AJ made procedural errors arguing
that they are frivolous and without merit and that the AJ may act sua
sponte to protect the integrity of the EEO process.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(9) provides that a complaint
can be dismissed if it is part of a clear pattern of misuse of the
EEO process for a purpose other than the prevention and elimination of
employment discrimination. An AJ is afforded broad authority to conduct
the hearing process. 29 C.F.R. �1614.109; Rountree v. Department of the
Treasury 07A00015 (July 13, 2001); White v. Department of Interior, EEOC
Appeal No. 01A54028 (November 4, 2005), and an AJ has no obligation to
issue a show cause order before exercising dismissal authority pursuant
to 29 C.F.R. � 1614.110(b),
In this case, although the Commission has found that complainant has
a history of abusing the process with multiple duplicative filings,
it does not automatically follow that any subsequent filings of his
constitute misuse of the EEO process. We note that contrary to the
AJ's finding, there were only two complaints, not 10, filed after he had
several meetings with an EEO counselor. One of the claims stated in the
complaint concerns a 7 day suspension for unsatisfactory performance and
failure to follow instructions which involves the agency's disciplinary
process, not the EEO process or issues of official time as in previous
cases. Complainant also alleges disparate treatment in the manner in which
he was given assignments and the time within which he must complete them.
Complainant also alleges harassment when he was given �pre-disciplinary�
discussions for various infractions of agency rules. Each of these are
legitimate claims that the agency investigated and should be the subject
of a determination on the merits.
Complainant acknowledged that some of his claims concern the processing
of his EEO complaints. We conclude that those claims that allege
dissatisfaction with the processing of previously filed complaints are
properly dismissed pursuant to 29 C.F.R. �1614.107(a)(8). Those claims
that allege dissatisfaction with the processing of the instant complaints
do not give rise to a cause of action. Rather, complainant should bring
his concerns to the AJ's attention. See EEOC Management Directive 110,
Ch. 5 � IV(D) (November 11, 1999).
Finally, in regard to complainant's claim that he was denied official
time, the claim should be processed in the manner set forth in Allegations
of Dissatisfaction Regarding Processing of Pending Complaints, EEOC
Management Directive 110, Ch. 5 � IV(D), wherein the Commission determined
that:
Where the complainant contends that an agency improperly denied
him/her official time and the Administrative Judge or OFO finds in the
complainant's favor, the Administrative Judge or OFO may order the agency
to restore such personal leave as the complainant may have used in lieu
of official time.
For these reasons, we reverse the agency's decision and remand the case
to the AJ for further proceedings consistent with this decision.
ORDER (E0900)
We remand this matter to the Houston District Office for further
proceedings consistent with this decision including a determination on
the merits of those claims discussed herein. The agency will forward
a copy of the investigative file to hearings unit within 30 days of the
date this order becomes final.
A copy of the agency's notice that transmits the investigative file must
be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 22, 2005
__________________
Date
0 1The complaints alleged:
1. Complainant was suspended for 7 days for failure to follow
instructions, unauthorized curtailment of mail and unsatisfactory
performance;
2. Complainant was subjected to harassment when he was denied overtime
or was disciplined for unauthorized overtime and procedures related to
his badge; he was forced to work off of his route and his route was not
covered;
3.His supervisor physically shoved him and yelled at him;
4.He was given unfavorable assignments and excessive amounts of mail to
deliver.
5.Complainant also contends the agency denied him official time to
conduct union activities and time to represent other employees in their
complaints and time to prepare his own EEO complaint.
0 2Most recently, the Commission dismissed three appeals which contained
the same allegations as other complaints. Kessinger v. United States
Postal Service, EEOC Appeal Nos. 01986948 (August 10, 2000). In affirming
the agency's dismissal, the Commission noted complainant's history of
abuse of the EEO process.