01986946
08-10-2000
Mark Kessinger v. USPS
01986946, 01990338, 01990362
August 10, 2000
.
Mark Kessinger,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01986946, 01990338, 01990362
Agency Nos. 4-G-770-0488-98,
4-G-770-0673-98, 4-G-770-0375-98
DECISION
Complainant timely filed appeals from three agency decisions.<1> The three
complaints were dismissed by the agency for procedural reasons. All of
them allege reprisal as the sole basis for filing the complaints.
Complainant has previously had numerous cases dismissed by the Commission,
finding that he has engaged in the abuse of the EEO process. In Kessinger
v. USPS, EEOC Request No. 05970408 (May 30, 1997), in a footnote the
Commission noted that complainant had twenty-six (26) cases pending
with the Commission and that twenty-one (21) were closed. It was also
noted that the agency stated that complainant had filed 161 complaints,
including sixty-five (65) class actions. Complainant was put on notice
of the Commission's right to protect its processes from misuse and
abuse. Thereafter in Kessinger v. USPS, EEOC Request No. 05970898
et al. (January 4, 1999), the Commission found that complainant had
engaged in the abuse of process and dismissed twenty (20) requests for
reconsideration (encompassing fifty-one (51) appeals and fifty-three
(53) complaints) and fifty (50) appeals (involving eighty-five (85)
complaints). Complainant's request for reconsideration of this decision
was denied. Kessinger v. USPS, EEOC Request Nos. 05990342 and 05990348
(May 20, 1999). In Kessinger v. USPS, EEOC Appeal No. 01976399 et
al. (June 6, 1999), req. for reconsideration pending, the Commission
again found that there was an abuse of the EEO process and dismissed 99
appeals.
The three complaints herein concern matters that were addressed in the
previous decisions. In 01986946, complainant failed to timely file his
formal complaint. In 01990338 the complaint was dismissed for failure to
state a claim where complainant alleged that he was not informed that
he was a technical advisor in a case involving another employee. And
in 01990362 complainant alleged that there were two incidents involving
his time card and that his supervisor "wanted" to charge him with a late
absence. That complaint was dismissed because complainant did not respond
to two requests for an affidavit. All three complaints herein are similar
to those described in footnote 6 of Appeal No. 01976399 - late filings,
"attempts" by the supervisor to discipline complainant, and failure to
file affidavits. In addition, complainant makes arguments he has made
before - the agency refused to extend his deadlines, affidavits are
"redundant" and the agency wouldn't give him time to fill them out,
and that he is aggrieved when he missed the opportunity to serve as a
technical advisor to another employee.
Given complainant's history and the fact that these complaints were
filed within the time frames as the others mentioned above and contain
basically the same issues, the Commission finds no reason to treat
these any differently. As such, the Commission declines to entertain
the enumerated matters any further given complainant's abuse of the
EEO process. Complainant is strongly cautioned as to continuing such
practices. As matters now stand, his arguments carry little credibility
and weight given his record before the Commission. Complainant's use
of the EEO system has evidenced a pattern of abuse, and he is reminded
that the agency may severely limit the amount of official EEO time,
if any, for complaints which are filed merely to overburden the system
and perpetuate a pattern of abuse.
Having found that complainant has engaged in the abuse of the EEO process,
the Commission dismisses all of the aforementioned appeals.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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 (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 10, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.