By Meghan Droste, February 10, 2021
Happy February, FELTG readers! Although a certain rodent recently predicted six more weeks of winter, I know I have already turned my thoughts to spring and the warm weather it will hopefully bring. I don’t need a groundhog to tell me that it will still be many months before I will be able to teach any in-person classes, but I’m also looking forward to getting back into the swing of teaching with the virtual programs we have coming up this spring.
One of the topics that comes up in many classes I teach is when an agency can or should dismiss a formal EEO complaint. When we discuss the various reasons listed in 29 C.F.R. § 1614.107(a), I often get questions about 107(a)(9), which allows agencies to dismiss complaints when they are “part of a clear pattern of misuse of the EEO process.” The Commission gives agencies some guidance directly in the regulation: There must be “(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 process or overburdening the EEO complaint system.” See id. So how many complaints are enough to meet the standard? And how similar do the complaints need to be?
The Commission recently looked at this issue in Jeffery J. v. Department of the Navy, EEOC App. No. 2020004860 (Dec. 2, 2020). The complainant filed his formal complaint alleging a discriminatory non-selection on June 21, 2020. The same day, the agency issued a FAD dismissing the complaint as an abuse of the EEO process. The reason? The agency said the complainant had filed eight other complaints against the same installation over the past 10 years.
The Commission reversed the FAD, finding that filing numerous EEO complaints was not enough on its own to meet the standard for abuse of process. Instead, the agency needed to “show evidence that somehow in filing numerous complaints a complainant specifically intended to misuse the EEO process.”
The Commission pointed to two prior decisions to distinguish the issue. In Wiatr v. Department of Defense, the Commission found no abuse of process when the complainant filed more than 40 complaints in order to end alleged discrimination, while it found there was an abuse of process in Abell v. Department of Interior, in which the complainant filed 40 non-selection complaints with no intention to accept a position.
The Commission also rejected the agency’s argument that the complaint was an abuse of process because the complainant’s complaints had been similar, none had been successful, and he allegedly had a “personal grudge” against an agency official. It found that the agency had no evidence that this complaint was abusive, rather than just one in a series of complaints.
I’m sure that some of you can think of a complainant who is a repeat customer (although 40 times is probably an outlier!). You might find yourself getting frustrated, but don’t let that frustration color the process. Complainants who have filed more than one complaint have just as much of a right to engage in the EEO process as someone coming to your office for the first time. Droste@FELTG.com