0120072917
08-14-2007
Kimberly K. Lopez, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Kimberly K. Lopez,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120072917
Agency No. DON-07-4523A-00641
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 15, 2007, dismissing her complaint 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim. In a complaint dated March 18, 2007, complainant alleged
that she was subjected to discrimination on the basis of reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act
of 1964 when, she was transferred from the Paint Shop (Shop 71) to the
Sheet Metal Shop (Shop 17).
The record indicates that complainant had been removed from the agency
and appealed that removal action to the Merit Systems Protection Board
(MSPB). During the MSPB action, the agency reinstated complainant and
assigned her to Shop 71. Subsequently, the MSBP issued an order to
place complainant back to the position she was in prior to her removal.
As such, the agency reassigned complainant to Shop 17. Complainant
contacted the EEO office regarding the reassignment. The agency issued
its final decision dismissing the complaint. During the same time
period, complainant contacted the MSBP regarding events related to the
removal action. In an Initial Decision issued June 27, 2007, the MSPB
Administrative Judge (AJ) indicated that complainant raised the issue
of the reassignment before her.
Upon review of the record we find that the agency's dismissal is
appropriate. We note that the matter raised by complainant involved
orders issued by the MSPB and she in fact raised the issue of the
reassignment to the MSPB. As such, we find that instant complaint
is a collateral attack on the MSPB. The Commission has held that an
employee cannot use the EEO complaint process to lodge a collateral
attack on another proceeding. See Wills v. Department of Defense, EEOC
Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal
Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v.
United States Postal Service, EEOC Request No. 05930106 (June 25, 1993).
The proper forum for complainant to have raised the matter is with the
MSPB, which it appears she has done. Accordingly, the agency's final
decision dismissing complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (S0900)
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 14, 2007
__________________
Date
2
0120072917
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120072917