05970898
01-04-1999
Mark Kessinger, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mark Kessinger v. United States Postal Service
05970898
January 4, 1999
Mark Kessinger, )
Appellant, ) Request No. 05970898 et al.<1>
) Appeal No. 01966284 et al.
) Agency No. 4-G-770-1318-96 et al.
)
) Appeal No. 01980867 et al.
v. ) Agency No. 4-G-770-0041-98 et al.
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
Decision
Appellant currently has twenty (20) requests for reconsideration
(encompassing fifty-one (51) appeals and fifty-three (53) complaints)
pending with the Commission at issue herein.<2> In addition to the
requests for reconsideration, he also has fifty (50) appeals involving
eighty-five (85) complaints pending. Except for one of the requests for
reconsideration, all of the appeals and requests were docketed after
October 1, 1997. All of the complaints involved herein were dismissed
for procedural reasons by the agency.<3> All of them allege reprisal
as the sole basis for filing the complaints.
The Commission has long recognized that it has the inherent power to
control and prevent abuse of its orders or processes and its procedure.<4>
Buren v. USPS, EEOC Request No. 05850297 (November 18, 1985); Hooks
v. USPS, Appeal No. 01953852 (November 28, 1995). The procedures contained
in the Commission's regulations at 29 C.F.R. �1614 describe the process by
which allegations of discrimination are processed in the Federal sector,
consistent with the Commission's 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 or an alternative or substitute for labor management
disputes. Hooks, supra.
On rare occasions, the Commission has applied abuse of process standards
to particular complaints. The 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) 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
which it was designed to accomplish. See Buren, supra.
The Commission has carefully reviewed all of the requests and appeals
considered herein as listed in Attachment A. The vast majority
involve complaints that were dismissed for failure to state a claim.
For example, appellant filed complaints regarding the grievance process
- raising matters such as his supervisor refusing to hear a step one
grievance or refusing to bargain in good faith. In Appeal No. 01983532,
appellant raised twenty-three allegations all related to grievance and
union concerns. Appellant also filed numerous appeals dealing with the
processing of his complaints. One appeal (01984094) concerns a complaint
containing 60 allegations such as the agency's alleged failure to pay
for postage for filing his complaints, that the room he used to file
complaints wasn't dusted when requested, that the affidavit form requests
irrelevant information etc.<5> Along the same vein, appellant filed
several complaints repeating the same issues - again primarily dealing
with the processing of complaints - but attempting to use different time
periods - i.e. that the agency did not put informal numbers on forms, he
was not given time to review previous complaints, that complainants whom
he represented were contacted or sent information by the EEO counselor,
or that the agency did not conduct a proper investigation. Appellant
also filed multiple complaints concerning his use of official time,
primarily that he needed more time than the agency allotted. In one
complaint (05990006) appellant complained of not being given time to
read the counselor's report, that he was given 30 minutes to fill out
one form and 40 minutes for another (which he felt discouraged the filing
of complaints), and that he was denied official time because he was not
designated as a representative of a complainant. Other of appellant's
complaints deal with his supervisor - that appellant's name was mumbled
when paged, substitutes on his route did not finish in time, and
criticizing the agency's handling of vacancies and its hiring practices.
Finally, numerous complaints were dismissed for failure to timely file a
complaint or failure to contact an EEO counselor in a timely manner. The
Commission notes that seven of the requests for reconsideration were
untimely filed as well.
While not inclusive, the above listing of appellant's complaints is
instructive. Appellant clearly has used the EEO process to express his
displeasures with the work place, the EEO process, and the grievance
system. Of interest to the Commission is that in some of his complaints,
where asked if the responsible officials knew of prior complaints,
appellant stated that he was "famous" or "well known." What is presented
is a concerted effort by appellant to overburden the agency's in-house
administrative machinery. The Commission cannot permit a party to utilize
the EEO process to circumvent 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.
Having found that appellant has engaged in the abuse of the EEO
process, the Commission dismisses all of the aforementioned requests
for reconsideration and appeals. Appellant may not seek further review
on any of his requests for reconsideration.
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.
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:
JAN 4, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
ATTACHMENT A
CASES ADDRESSED HEREIN
Requests for Reconsideration
REQUEST NO. APPEAL NO. AGENCY NO.
05970898 01966284 4-G-770-1318-96
05980164 01970360 4-G-770-1462-96
05980621 01971678 4-G-770-1471-96
05980622 01971679 4-G-770-1470-96
05980984 01980364 4-G-770-0605-97
05980985 01976400 4-G-770-0486-97
05980986 01976425 4-G-770-0485-97
05980987 01976536 4-G-770-0546-97
05980988 01980247 4-G-770-0012-98
05980989 01980245 4-G-770-0029-98
05980990 01976401 4-G-770-0532-97
05980991 01976402 4-G-770-0473-97
05981197 01980882 4-G-770-0073-98
CC-770-1570-96
05990006 01970371 4-G-770-1476-96
05990007 01972565 4-G-770-1147-96
05990008 01980878 4-G-770-0040-98
CC-770-0045-97
05990009 01975274 4-G-770-1464-96
05990013 01974877 4-G-770-0349-97
01980469 4-G-770-0022-98
(32 Appeals/complaints
01980484 4-G-770-0016-98
in 1 decision)
01980482 4-G-770-0010-98
01980483 4-G-770-0017-98
01980477 4-G-770-0026-98
01980480 4-G-770-0023-98
01980467 4-G-770-0020-98
01980466 4-G-770-0013-98
01980491 4-G-770-0609-97
01977048 4-G-770-0534-97
01976687 4-G-770-0540-97
01976686 4-G-770-0481-97
01976688 4-G-770-0479-97
01980472 4-G-770-0033-98
01980475 4-G-770-0018-98
01980468 4-G-770-0034-98
01980470 4-G-770-0615-97
01980488 4-G-770-0008-98
05990013 con't 01980490 4-G-770-0019-98
01980492 4-G-770-0014-98
01980493 4-G-770-0021-98
01980487 4-G-770-1581-96
01980476 4-G-770-0015-98
01980474 4-G-770-0009-98
01980473 4-G-770-0024-98
01980471 4-G-770-0030-98
01980486 4-G-770-0011-98
01980489 4-G-770-0035-98
01980479 4-G-770-0032-98
01980481 4-G-770-0607-97
01980465 4-G-770-0027-98
05990029 01976404 4-G-770-0483-97
05990030 01976403 4-G-770-0484-97
Appeals
APPEAL NO. AGENCY NO.
01980867 4-G-770-0041-98
4-G-770-0044-98
(11 complaints) 4-G-770-0045-98
4-G-770-0050-98
4-G-770-0052-98
4-G-770-0057-98
4-G-770-0058-98
4-G-770-0060-98
4-G-770-0062-98
4-G-770-0065-98
4-G-770-0068-98
01980875 4-G-770-0039-98
4-G-770-0042-98
(7 complaints) 4-G-770-0043-98
4-G-770-0046-98
4-G-770-0048-98
4-G-770-0053-98
4-G-770-0064-98
01981559 4-G-770-0683-97
01981560 4-G-770-0680-97
01981587 4-G-770-0723-97
4-G-770-0724-97
(20 complaints) 4-G-770-0725-97
4-G-770-0726-97
4-G-770-0727-97
4-G-770-0728-97
4-G-770-0729-97
4-G-770-0730-97
4-G-770-0731-97
4-G-770-0732-97
4-G-770-0733-97
4-G-770-0734-97
4-G-770-0735-97
4-G-770-0736-97
4-G-770-0737-97
4-G-770-0738-97
4-G-770-0739-97
4-G-770-0740-97
4-G-770-0741-97
4-G-770-0110-98
01981588 4-G-770-0677-97
01982367 4-G-770-0529-97
01982748 4-G-770-0180-98
01982823 4-G-770-0181-98
01983221 4-G-770-0219-98
01983223 4-G-770-0223-98
01983292 4-G-770-0179-98
01983529 4-G-770-0227-98
01983530 4-G-770-0220-98
01983531 4-G-770-0678-97
01983532 4-G-770-0187-98
01984094 4-G-770-0189-98
01984410 4-G-770-0538-97
01984411 4-G-770-0533-97
01984412 4-G-770-0482-97
01984413 4-G-770-0537-97
01984414 4-G-770-0535-97
01984415 4-G-770-0474-97
01984715 4-G-770-0375-98
01984716 4-G-770-0378-98
01984717 4-G-770-0380-98
01984718 4-G-770-0381-98
01984719 4-G-770-0409-98
01984720 4-G-770-0410-98
01984721 4-G-770-0411-98
01984722 4-G-770-0414-98
01984723 4-G-770-0415-98
01984724 4-G-770-0416-98
01984725 4-G-770-0420-98
01984900 4-G-770-0215-98
01984904 4-G-770-0217-98
01984905 4-G-770-0216-98
01984920 4-G-770-0188-98
01985046 4-G-770-0379-98
01985047 4-G-770-0383-98
01985048 4-G-770-0413-98
01985176 4-G-770-0441-98
01985177 4-G-770-0394-98
01985178 4-G-770-0398-98
01985179 4-G-770-0399-98
01985180 4-G-770-0400-98
01985181 4-G-770-0402-98
01985182 4-G-770-0417-98
01985183 4-G-770-0418-98
01985692 4-G-770-0408-98
1 The cases being addressed herein are listed in Attachment A to this
decision. Thirty-two appeals were consolidated under Appeal No. 01974877,
which is the subject of request 05990013. The remaining requests and
appeals have individual numbers, but sometimes address more than one
complaint.
2 Not included herein are an additional 38 appeals pending as of November
18, 1998, which are not yet ready for adjudication.
3 The Commission notes that the agency accepted several allegations out
of the one hundred thirty-eight complaints. The allegations accepted
for investigation are not at issue in the instant matter.
4 In Kessinger v. USPS, EEOC Request No. 05970408 (May 30, 1997), in a
footnote the Commission noted that appellant had twenty-six cases pending
with the Commission and that twenty-one were closed. It was also noted
that the agency stated that appellant had filed 161 complaints, including
65 class actions. Appellant was put on notice of the Commission's right
to protect its processes from misuse and abuse.
5 Of interest, appellant also filed a complaint (Appeal No. 01985048)
wherein he complained that the agency put 60 allegations in one complaint
(01984094). Thereafter appellant also filed eight complaints, including
one containing 23 allegations (01984095), which were identified and
dismissed as being similar to those in Appeal No.01984094.