DISMISSALS FOR ABUSE OF PROCESS

Digest of EEO Law, Volume XI No. 3

The Commission recognizes the doctrine of abuse of process in certain limited circumstances. This article discusses the five decisions that have been issued by the Commission over the past five years in which the Commission applied the abuse of process doctrine.[1] These, plus two decisions discussed in this article in which the Commission declined to apply the doctrine, illustrate the types of complaints warranting dismissal on abuse of process grounds.

1. Definition and purpose

The Commission defines "abuse of process" as a clear pattern of misuse of the EEO process for ends other than that which it was designed to accomplish. See Buren v. United States Postal Service[2]; Kleinman v. United States Postal Service.[3] Application of the doctrine must be rare, because of the strong policy of preserving a complainant's EEO rights whenever possible. See generally Love v. Pullman, 404 U.S. 522 (1972), cited in Wrenn v. EEOC.[4]

Although abuse of process is not a specified basis for dismissal in EEOC's Regulations, this does not mean that the Commission is deprived of the authority to protect its administrative process from abuse by either party. To the contrary, the Commission has the inherent power to prevent such abuse of its orders, processes, and procedures. Buren; Hooks v. United States Postal Service.[5] The Commission has repeatedly expressed concerns that a complainant cannot overburden a process which was designed to protect innocent individuals from discriminatory practices. See Card v. United States Postal Service.[6] Nor can a complainant use the EEO process to circumvent other administrative processes, such as labor-management dispute processes. See Hooks. As the Commission stated in Card: "What is presented [in these appeals and requests to reconsider] is a concerted attempt by appellant to retaliate against the agency's in-house administrative machinery."

When the Commission concludes that an appellant is engaged in abuse of process, the Commission approves dismissal of appellant's complaint or complaints. However, the Commission also emphasizes that such dismissals do not deprive an appellant of the right to file a civil action in federal district court. Hooks; Card.

2. Evidence sufficient to show abuse of process

Commission conclusions that appellants abused or misused the EEO process have rested on the nature of the subject matter of the complaints, on the prior conduct and past history of an appellant, and on a too-tenuous relationship between the subjects of the complaints and the EEO process. Although complaints evidencing abuse of process often involve a pattern of numerous or duplicative complaints or appeals, the Commission regularly cautions that the mere filing of numerous complaints is not enough by itself to show abuse of process.

For example, the Hooks decision addressed 132 appeals that had been filed by the appellant on 132 agency dismissals. The Commission noted that the 132 appeals represented only complaints pending at the time of the decision and did not reflect closed appeals or complaints not yet appealed. Furthermore, the Commission noted, 86 of the appeals were filed on a single day. However, the Commission considered more than merely the number of appeals and complaints that appellant filed. In finding a "clear pattern" of abuse, the Commission examined the issues raised in the complaints. Appellant merely presented frivolous issues in her complaints, stated the Commission, as all of them recited similar or, in some cases, identical allegations. The Commission saw a "definite pattern of initiating the complaint machinery for any matter of which appellant was dissatisfied." Examples of similar issues included the fact that appellant filed 17 appeals complaining of improper issuance of agency dismissals of certain complaints, while simultaneously appealing the dismissals themselves. The Commission also considered the fact that all of appellant's complaints raised allegations that the agency denied access to supplies, equipment, and storage for her EEO complaints, as well as other allegations regarding the EEO process. Finding a blatant overburdening of the EEO process, the Commission affirmed the agency's dismissal of appellant's complaints. The Commission at the close of its analysis stated that its decision was not to be construed as a holding that the mere filing of numerous complaints constitutes an abuse of process, and stated further that the failure to administratively process the underlying allegations did not deprive appellant of her right to file a civil action on the matters.

The appellant in Goatcher v. United States Postal Service[7] also raised similar or identical allegations in her several complaints and appeals. As in Hooks, the appellant in Goatcher complained that she was denied access to equipment and storage for the processing of her EEO complaints. She also complained of other aspects of the EEO process. The Commission stated that the appellant continued to raise frivolous issues and similar or identical allegations. In fact, stated the Commission, the appellant "consistently attaches to her appeals a paper that has the same standard allegations and has been repeatedly copied, where she only writes the number of the particular complaint in question." The Commission found "a concerted attempt" by the appellant to retaliate against the agency's in-house administrative machinery. Finding that appellant blatantly overburdened the administrative system with these complaints, the Commission declined to entertain the appeals and requests to reconsider before it. A similar decision on very similar facts also was issued by the Commission one week later in Card. Again, the Commission decided that the appellant had pursued a scheme involving the misuse and misapplication of the administrative process.

Where the subject matter has no relationship to the EEO process, a finding of abuse of process is warranted. Buren. It is also warranted where there is evidence that the EEO process is being used as a substitute for labor-management disputes. Goatcher (similar or identical allegations raised by other agency employees). The Commission also has expressed concern where the issues became far removed from employment matters. In decisions involving two former employees, the Commission expressed concern about the attenuated nature of the allegations of discrimination, but decided under the circumstances of the cases not to reach a finding of abuse of process. In Kleinman v. United States Postal Service,[8] the Commission noted appellant's practice of filing multiple appeals and requests for reconsideration on matters with only "attenuated" connections to employment. These included allegations that the agency would not give appellant EEOC and agency publications pertaining to EEO processing, and also an allegation that a postal inspector did not respond promptly enough to his letter regarding an employment matter that was three years old. The Commission stated that appellant's allegations are so far removed from the purposes of federal employment law as to suggest a possible abuse of process. The Commission went on to decide not to make a finding of abuse of process "at present." However, the Commission noted that because appellant had not worked for the agency for almost three years, any relationship between allegations of discrimination and employment matters "will and has diminished."

Similarly, in Pletten v. Department of the Army,[9] the appellant was a former employee who, years after leaving the agency's employ, continued to file complaints which only facially were related to employment matters. For example, he complained of his termination by the agency in numerous complaints, even though the issue had been fully litigated in the administrative process and in the courts. The Commission decided not to reach a finding of abuse of process in his cases, however, as there was not an indication that he intended to abuse the process. However, the Commission cautioned appellant that if he continued to file complaints raising the same allegations that the Commission found to be without merit, the complaints could at some point be characterized as abuse of the EEO process.

In Wrenn, the evidence of abuse pertained in large part to the appellant's failure to take part in various stages of the processing of his own complaints. He had a history of failing to appear at duly scheduled hearings, for example, and he also failed to appear at a trial in federal district court. The Commission took notice of a prior Commission determination that appellant had engaged in contumacious conduct in his several failures to appear. The failures were so frequent as to constitute a pattern of willful acts which, the Commission decided, blatantly overburdened the EEO process. Also noted was a chronicle of appellant's past history that was set out in a Second Circuit opinion in a civil action brought by appellant on an earlier complaint, in which the court in essence found that appellant had failed to fulfill his obligation of good faith participation. The Commission considered appellant's prior conduct and past history, and found abuse of process. The Commission found that his conduct manifested a "degree of disinterest" that was tantamount to an abandonment of his claim. The Commission therefore affirmed the agency's dismissal of appellant's complaint.

[1] The five decisions encompassed many appeals and Requests to Reconsider.

[2] EEOC Request No. 05850299 (August 27, 1987).

[3] EEOC Appeal No. 01943637 (September 22, 1994).

[4] EEOC Appeal No. 01932105 (August 19, 1993).

[5] EEOC Appeal No. 01953852 (November 25, 1995).

[6] EEOC Request no. 05950568 (October 25, 1996).

[7] EEOC Request No. 05950557 (October 18, 1996).

[8] EEOC Appeal No. 01943637 (September 22, 1994).

[9] EEOC Request No. 05940256 (February 24, 1995).