Lisa Rapp, Complainant,v.Linda M. Springer, Director, Office of Personnel Management, Agency.

Equal Employment Opportunity CommissionMay 15, 2007
0120064970and0120071524 (E.E.O.C. May. 15, 2007)

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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0120071524 &

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120064970 & 0120071524