Mark Kessinger, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 4, 1999
05970898 (E.E.O.C. Jan. 4, 1999)

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.