0120064970and0120071524
05-15-2007
Lisa Rapp, Complainant, v. Linda M. Springer, Director, Office of Personnel Management, Agency.
Lisa Rapp,
Complainant,
v.
Linda M. Springer,
Director,
Office of Personnel Management,
Agency.
Appeal Nos. 0120064970 & 0120071524
Agency Nos. 2006030 & 2007004
DECISION
Complainant recently filed two appeals with this Commission and the
Commission has consolidated the matters for processing. The first
appeal complainant filed from an agency decision dated July 24, 2006
(Appeal 0120064970), 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. Complainant filed the second appeal
from an agency decision dated December 20, 2006 (Appeal 0120071524),
dismissing her complaint of unlawful employment discrimination in
violation of the aforementioned statutes.
Formerly, complainant was employed as a Computer Specialist with the
Department of the Navy (Navy). In 1997, complainant left Navy on
disability retirement. In 2004, the agency discontinued complainant's
retirement benefits based on medical information that it received. In a
complaint dated June 6, 2006 (Complaint 2006030), complainant alleged
that the agency discriminated against her on the bases of sex (female),
disability (chronic migraine headaches, trauma, anxiety, and depression),
age (over 40), and reprisal for prior protected EEO activity when (1) on
May 18, 2004, it terminated her annuity payments, (2) agency employees
provided inaccurate information and forms deliberately that resulted
in complainant's employing agency, Navy, on September 7, 2005, denying
her request for reinstatement under the Interagency Career Transition
Assistance Plan and (3) an agency representative provided erroneous
information and false testimony that influenced a decision issued by
another agency, the Merit Systems Protection Board (MSPB), on December 27,
2005.1 In a formal complaint dated October 30, 2006 (Complaint 2007004),
complainant alleged that (4) the agency discriminated against her based
on sex, disability, age, and reprisal when agency officials provided
false and misleading information to her as well as the U.S. Court of
Appeals for the Federal Circuit regarding her retirement benefits appeal.
In its July 24, 2006 final decision, the agency dismissed Complaint
2006030 pursuant to 29 C.F.R. �1614.107, for untimely EEO contact and
failure to state a claim. Specifically, regarding failure to state
a claim, the agency stated that (1) through (3) involve collateral
attacks on the involved processes. Complainant filed Appeal 0120064970.
On appeal, complainant stated that (1) is not an issue of her EEO
complaint and that matter is being addressed in other forums, the agency
has continuously processed her complaint improperly, and the agency
provided conflicting information as to her appeal rights.
In its December 20, 2006 final decision, the agency dismissed (4) pursuant
to 29 C.F.R. �1614.107(a)(1), for failure to state a claim. The agency
asserted that (4) involves a collateral attack on the litigation process.
Complainant filed Appeal 0120071524.
After a careful review of the records, we agree with the agency's
dismissal of Complaints 2006030 and 2007004. The regulation set forth at
29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency
shall dismiss a complaint that fails to state a claim. The agency
dismissed complainant's complaints on the ground that they challenged
the agency's decision-making process and provision of information to
other agencies. We agree and find that the proper forum for contesting
the outcome from or process of another forum is within that forum itself.
We find that (1) through (3) constitute an impermissible collateral attack
on the agency's disability retirement process and is not actionable
under EEO statutes. Further, regarding (1), as complainant indicated
on appeal, she is aware that she has to pursue the matter in another
forum. Accordingly, we find that the agency's dismissal of complainant's
claims are proper and AFFIRMED. We find no need to address the agency's
alternate basis of dismissal for Complaint 2006030.
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
May 15, 2007
__________________
Date
1 Regarding (1) and (3) of Complaint 2006030, we note that complainant
filed an appeal with the MSPB regarding the agency's termination
of her annuity payments. The MSPB identified the appeal as number
AT-844E-05-0056-I-1. In a decision dated May 27, 2005, the MSPB affirmed
the agency's termination of said benefits. Complainant filed a petition
for review with the full Board, which was denied in a decision dated
December 27, 2005. Subsequently, complainant filed a civil action
in the U.S. Court of Appeals Federal Circuit. The Court of Appeals
vacated the final MSPB decision and remanded the matter to the MSPB
for consideration of competency issues and complainant's possible need
for legal representation in the retirement process. The MSPB has the
remanded matter for processing.
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2
0120071524 &
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120064970 & 0120071524