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

Equal Employment Opportunity CommissionJan 4, 1999
05970967 (E.E.O.C. Jan. 4, 1999)

05970967

01-04-1999

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


Mark Kessinger v. United States Postal Service

05970967

January 4, 1999

Mark Kessinger, )

Appellant, ) Request No. 05970967

) 05970968

) Appeal No. 01966165

v. ) 01966166

) Agency No. 4-G-770-1317-96

William J. Henderson, ) 4-G-770-1316-96

Postmaster General, )

United States Postal Service, )

Agency. )

)

GRANT OF REQUEST FOR RECONSIDERATION

On August 1, 1997, the United States Postal Service (agency) timely

initiated two requests to the Equal Employment Opportunity Commission

(EEOC) to reconsider the decisions in Kessinger v. USPS, EEOC Appeal

Nos. 01966165 and 01966166, (July 8, 1997). EEOC Regulations provide

that the Commissioners may, in their discretion, reconsider any previous

Commission decision. 29 C.F.R. �1614.407(a). The party requesting

reconsideration must submit written argument or evidence which tends to

establish one or more of the following three criteria: new and material

evidence is available that was not readily available when the previous

decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision

involved an erroneous interpretation of law, regulation or material fact,

or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);

and the previous decision is of such exceptional nature as to have

substantial precedential implications, 29 C.F.R. �1614.407(c)(3).

The agency's requests are granted.

Both of the above appeals dealt with appellant's 7 day suspension in April

1996. Both complaints were filed on June 13, 1996. Both complaints were

dismissed as being duplicates of complaint number 4-G-770-1355-96, which

was filed on June 7, 1996. The previous decisions noted that the agency

did not provide the file for 4-G-770-1355-96, and remanded the complaints

for further processing. The previous decisions, noted however, that an

appeal of complaint 4-G-770-1355-96 was dismissed by the Commission as

premature. Kessinger v. USPS, Appeal No. 01965971 (June 23, 1997).

In its request for reconsideration, the agency provides copies

of complaint 4-G-770-1355-96, which clearly indicate it deals with

appellant's April 1996 suspension. The Commission finds it reasonable

to conclude that given appellant's numerous filings, the agency may

have believed it already submitted the copies of 4-G-770-1355-96 to the

Commission. Having reviewed the records, and and noting that appellant

has filed an untold number of complaints with the agency, the Commission

finds that the instant complaints are duplicates of the previous complaint

and no purpose would be served by remanding the matter. In addition, the

Commission cautions appellant, who is well versed in the EEO process,

about knowingly filing duplicate complaints which only serve to over

burden the EEO process. The Commission retains the right to protect its

processes and procedures from misuse and abuse. See Kleinman v. USPS,

EEOC Request No. 05940579 (September 22, 1994); Hooks v. USPS, EEOC

Appeal No. 01953852 (November 28, 1995).

After a review of the agency's requests for reconsideration, the

previous decisions, and the entire records, the Commission finds the

agency's requests meet the criteria of 29 C.F.R. �1614.407(c), and

it is the decision of the Commission to grant the agency's requests.

The decisions of the Commission in Appeal Nos. 01966165 and 01966166

are REVERSED. There is no further right of administrative appeal from

the decision of the Commission on these requests for reconsideration.

RIGHT TO FILE A CIVIL ACTION (P0993)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court.

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.

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