01A03885
08-29-2002
Ray C. Jennings, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area) Agency.
Ray C. Jennings v. United States Postal Service
01A03885
August 29, 2002
.
Ray C. Jennings,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area)
Agency.
Appeal No. 01A03885
Agency Nos. 4E-840-0130-97
Hearing Nos. 350-99-8248X, 350-99-8280X
DECISION
Complainant timely initiated an appeal from a decision by an EEOC
Administrative Judge (AJ) 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was employed
as a City Carrier at the agency's Holiday Post Office in Salt Lake City,
Utah facility. Complainant sought EEO counseling and subsequently
filed formal complaints on September 9, 1997 and October 5, 1997,
alleging that he was discriminated against on the bases of sex (male),
age (D.O.B. January 20, 1948), and reprisal for prior EEO activity when:
(1) a supervisor ordered him to �go to his case, now� in a loud and
angry voice;
he was confined to his case and required to ask permission to leave
his case.
a supervisor order him not to do any �PM� casing;
a supervisor allowed some carriers to do clock rings;
a superviosr harassed certain carriers about their leaving and return
time;
he was forced to give away the last part of his route;
he was ordered by a supervisor to give up the last part of his route;
he was followed on his route by two supervisors;
a supervisor instructed him to dismount when delivering four mounted
boxes.
At the conclusion of the investigations, complainant was provided
copies of the investigative files and requested hearings before an AJ.
Prior to holding a hearing, the AJ issued a decision, on the agency's
motion, dismissing the complaints pursuant to 29 C.F.R. � 1614.107(a)(9)
for abuse of process.<1>
The AJ determined that complainant had filed approximately 53 EEO
complaints; that none of these resulted in a finding of discrimination;
that the allegations of pending complaints were �the same or similar to
allegations raised in Complainant's previous EEO complaints;� and that
the filing of approximately 36 complaints of harassment betwen April 1989
and May 1997 �constitute[d] an undue burden on the EEO complaint system.�
When the agency failed to act on the AJ's decision within 40 days, that
decision became final.<2> From the AJ's decision complainant brings
the instant appeal.
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 (November 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 dispute resolution procedures. 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." 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 (August. 19, 1993).
In the instant case, we find that the AJ's cursory analysis of
complainant's prior EEO filings is insufficient to permit imposition
of sanctions for abuse of process. In a two-page decision dismissing
complainant's complaints, the AJ determined that the facts alleged in
complainant's prior filings were �the same or similar to� those alleged
in the pending complaints. However the decision contains no discussion
whatever of the specific allegations in the prior filings. The AJ
states simply that the complaints all involved �similar challenges
to supervisory authority.� In our view, the fact that complainant
has repeatedly challenged supervisory authority, without more, is not
indicative of abuse of process.
The AJ also found that the complainant �incorrectly equates mistreatment
by his supervisors� motived by their dislike for him with intentional
discrimination based on race, age, sex or reprisal. From this, and the
fact that complainant could have challenged his supervisor's actions
through the grievance procedures available to him, the AJ concluded
that complainant has improperly employed the EEO process to remedy the
mistreatment he has allegedly received at the hands of his superiors.
The AJ's conclusion is unsupportable. If it is true, for example, as
complainant alleges, that he has been mistreated by his supervisors in
retaliation for his prior EEO activity, it is entirely appropriate to
challenge that mistreatment through the EEO process. The fact that,
under the applicable collective bargaining agreement, complainant could
also challenge his supervisors' actions through the grievance procedures
does not illegitimize complainant's choice of forum.
Complainant's actions have not been shown to be so egregious as to
justify the extreme sanction of cutting off his access to the EEO process.
See Kessinger v. United States Postal Service, EEOC Appeal No. 01976399
(June 8, 1999)(filing hundreds of EEO complaints, including scores of
duplicate complaints �evidenced an intent to �clog' the EEO system� and
warranted dismissal for abuse of process.) We conclude that the case
for dismissal for abuse of process under 29 C.F.R. � 1614.107(a)(9)
has not been made.
For the foregoing reasons we find that the dismissal was improper under
29 C.F.R. � 1614.109(b). Therefore, we REVERSE the FAD and REMAND the
case for further processing in accordance with the ORDER below.
ORDER
The agency shall request the Hearings Unit of the EEOC's Phoenix
District Office to schedule a hearing on the instant complaints. The
agency is directed to submit a copy of the complaint files to the EEOC
District Office within fifteen (15) calendar days of the date that this
decision becomes final for a decision from an Administrative Judge in
accordance with 29 C.F.R. � 1614.109. The agency shall provide written
notification to the Compliance Officer at the address set forth below
that the complaint file has been transmitted to the EEOC District
Office. After receiving a decision from the EEOC Administrative Judge,
the agency shall issue a decision in accordance with 29 C.F.R. � 1614.110.
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
August 29, 2002
__________________
Date
1EEOC Regulation 29 C.F.R. � 1614.109(b)
provides that an AJ may dismiss complaints pursuant to 29 C.F.R. �
1614.107, on his or her own initiative, after notice to the parties,
or upon an agency's motion to dismiss a complaint.
2On May 24, 2000, the agency belatedly issued a final decision
implementing the AJ's decision.