0120114019
12-06-2011
Yuri J. Stoyanov, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Yuri J. Stoyanov,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 0120113142
0120113817
0120114019
Agency Nos. 11-00167-02195
11-00167-02835
11-00167-03192
DECISION
Complainant filed timely appeals with this Commission from various final
agency decisions, dismissing his complaints 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. We consolidate these appeals for joint processing pursuant
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a
former employee of the Agency. Prior to March 2010, Complainant worked as
a scientist at the Agency’s Naval Surface Warfare Center in Carderock,
Maryland. In his complaints, Complainant alleged that he was subjected
to discrimination on the bases of national origin (born in Russia), age
(55), and in reprisal for prior protected EEO activity (arising under
Title VII and the ADEA) when he was not referred or selected for various
positions within the agency.
The Agency dismissed the claims on various grounds including that
Complainant abused the EEO process in filing the complaints because
he repeatedly filed similar or identical allegations of non-selection
and applied for positions for which he was unqualified. The Agency
explained that Complainant had been removed by the Agency, and yet he
continued to apply for positions within the agency that are reserved
for current employees.
ANALYSIS AND FINDINGS
We note that EEOC Regulations state that an agency shall dismiss a
complaint where it clearly evidences a clear pattern of misuse of the
EEO process for ends other than that which it was designed to accomplish.
See Fisher v. Dep't of Defense, EEOC Appeal No. 01962325 (Dec. 11, 1998)
(citing Buren v. U.S. Postal Serv., EEOC Request No. 05850299 (Nov. 18,
1985)). Specifically, 29 C.F.R. § 1614.107(a)(9) states:
A clear pattern of misuse of the EEO process requires:
(i) Evidence of multiple complaint filings, and
(ii) Allegations 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.
As a policy, the Commission aims at preserving a complainant's EEO rights
whenever possible; thus, we rarely permit dismissal of a complaint
on these grounds. See Kessinger v. U.S. Postal Serv., EEOC Appeal
No. 01976399 (June 8, 1999); Equal Employment Opportunity Commission,
Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 5, § IV.A.4
(rev. Nov. 19, 1999). Given this policy and our concern about protecting
complainants and their rights under the EEO statutes, the agency bears a
very high standard of proof ultimately to show that complainant's actions
reveal “an ulterior purpose to abuse or misuse the EEO process.”
MD-110 at Ch. 5, § IV.A.4.
Filing numerous complaints alone is not a sufficient basis for dismissal.
The agency must show evidence that somehow in filing numerous complaints
a complainant intended to misuse the EEO process. Compare Wiatr v. Dep't
of Defense, EEOC Appeal No. 01A30752 (Feb. 25, 2004) (finding no abuse
of process in the case of a complainant who filed over 40 complaints,
but where the record did not show that he did so for any other reason
than to put an end to alleged discrimination) with Abell v. Dep't of
Interior, EEOC Appeal No. 01A33023 (May 13, 2004) (finding abuse of
process where complainant filed 40 complaints of non-selection with no
intention to take the job). See also, Stoyanov v. Dep’t of the Navy,
EEOC No. 01A60843, 01A61391, 01A61781, 01A62205, 01A62852 (Aug. 31, 2006)
(finding abuse of process where complainant filed 25 complaints over
non-selections where complainant was ineligible for positions for which
he applied). Therefore, the focus of the analysis is on the totality
of the individual's claims, circumstances, and intentions.
We are satisfied that the Agency has established that the complaints
now before us are part of a pattern of abuse perpetrated by Complainant
to punish the Agency by burdening the EEO system despite knowing that
the complaints he filed were meritless. Complainant has filed over 50
administrative EEO complaints with the Agency. The clearest indication
that Complainant’s objective in filing his numerous EEO complaints
was to vex the Agency rather than vindicate his rights under the EEO
laws is his recent practice of applying for positions for which he
knows he is unqualified. Complainant’s employment with the Agency
was terminated effective March 31, 2010.1 On at least 17 occasions
since then, he has applied for positions with the Agency for which
non-employees were ineligible. In each of those 17 cases, when he
was rejected as not qualified, as he inevitably was, he filed an EEO
complaint which the Agency dismissed, inter alia, as an abuse of process.
In each case, he appealed the dismissal to the Commission.
The bulk of Complainant's EEO complaints following his removal in
March 2010 involve allegations of discriminatory non-selections.
Complainant continues to argue before us that his removal was wrongful
and that based on his personal belief, he remains a current employee.
Moreover, despite knowing he was not qualified for the positions he sought
because they were open only to current employees, he applied anyway.
He knew he could not be referred for an interview or selected due to
his non-employee status, and he even went so far as to misrepresent
himself as an employee on his job applications. Agency officials have
warned Complainant that they know of his false applications and would
not consider him unless his employment status changes. Complainant,
however, disregarded the warnings and filed EEO complaints each time he
received notice of his non-selection. Based on these facts we conclude
that his only objective in applying for these positions was to then file
futile EEO claims against the Agency.
In essence, Complainant aimed to use the EEO process to retaliate
against the Agency and its officials for his removal and perceived
unjust treatment. This is not the purpose for which the process is
to be used. The EEO process serves to prevent and eliminate workplace
discrimination; it is not to be used as a means to carry out a personal
grudge. See Sessoms v. U.S. Postal Serv., EEOC Appeal No. 01973440
(June 11, 1998) (finding abuse of process where complainant developed
a pattern of “initiating the complaint machinery with respect to any
matter with which complainant was dissatisfied”).
In fact, Complainant's actions are similar to those of the complainant
in Fisher v. Dep’t of Defense, EEOC Request No. 05970326 (Dec. 11,
1998), where we also found abuse of process. There, Mr. Fisher filed
twenty-one complaints. Mr. Fisher was dissatisfied with his failure
to obtain relief for his removal from agency employment through the
administrative process, so he filed the EEO complaints alleging, for the
most part, that the agency improperly handled his official time requests
and complaint processing. We concluded that certain of his remarks
made during the processing; his failure to cooperate with investigators,
EEO officials and the AJ; and his insistence on filing separate appeals
on related issues that should have been consolidated all revealed an
intention to misuse the EEO process to retaliate against agency officials.
Like Mr. Fisher, Complainant here refused to cooperate with agency
officials in correcting the false information he supplied on his job
applications and attempted to use the administrative process to strike
back at the Agency. As in Fisher, we will neither permit Complainant
to utilize the EEO process to circumvent administrative processes in
this manner, nor allow him to overburden the system, which is designed
to protect individuals from discriminatory practices. In this regard,
we note that we have previously affirmed the Agency’s dismissals of
Complainant’s complaints in Stoyanov v. Dep’t of the Navy, EEOC
Appeal Nos. 0120110604, 0120111454, 0120111991 (April 20, 2011).
CONCLUSION
In light of the foregoing, and upon review of the case files as well
as all arguments raised on appeal, we AFFIRM the Agency's decisions
dismissing the complaints.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 6, 2011
Date
1 His removal has since been upheld by the Merit Systems Protection Board
(MSPB) in Stoyanov v. Dep’t of the Navy, MSPB No. DC-0752-10-0472-I-1
(Jan. 4, 2011), petition for review denied (Aug. 8, 2011).
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2
0120113142
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113142, 0120113817, 0120114019