The opinion of the court was delivered by: Joan H. Lefkow, United States District Judge
In this action brought by plaintiff, Sandra Lozado-Boulware ("Lozado-Boulware"), alleging discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., defendant, John W. Snow ("the Secretary"), Secretary of the Department of Treasury ("the Agency"), has moved under Rule 12(b)(6), Fed.R.Civ.P., to dismiss Lozado-Boulware's Complaint. The court construes the Secretary's motion as a motion for summary judgment under Rule 56, Fed.R.Civ.P., and for the reasons set forth below, the court grants the motion in part and denies it in part.
SUMMARY JUDGMENT STANDARDS
Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R, Civ.P.56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the nonmoving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the nonmoving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255 (1986).
Lozado-Boulware was employed by the Agency, within the Internal Revenue Service ("IRS"), as a Tax Examining Assistant at the Illinois District, Special Procedures Branch office in Chicago. On October 25, 1996, Lozado-Boulware was involved in a confrontation with a co- worker. On October 28, 1996, Lozado-Boulware submitted a claim for benefits to the Office of Workers Compensation Programs ("OWCP") claiming that she injured her back during the October 25 confrontation.
On February 24, 1997, the IRS provided Lozado-Boulware a letter informing her that the Agency intended to fire her because she had failed to follow managerial directives, she had engaged in unsuitable conduct, and she had submitted a false Form CA-1, Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation. (Letter from Jeffrey Stetina to Sandra Lozado-Boulware, attached as Def. Ex. 1.) On June 27, 1997, the Agency informed Lozado-Boulware that the reasons for her removal were sustained and that she would be fired effective July 11, 1997. (Letter from Robert Brock to Sandra Lozado-Boulware, attached as Def. Ex. 2.) This letter also informed Lozado-Boulware that she could appeal to the Merit Systems Protection Board ("MSPB"), and that if she believed the decision was based on impermissible discrimination she could appeal to the MSPB or file an Equal Employment Opportunity ("EEO") complaint with the Agency. (Id.)
Lozado-Boulware appealed her removal to the MSPB on August 6, 1997. (August 6, 1997 MSPB Appeal Form, attached as Def. Ex. 3.) In this appeal, in addition to asserting her civil service rights,*fn2 Lozado-Boulware (who was then represented by counsel) alleged that her removal was based on race and sex discrimination. (Id. ¶ 31.b) Her appeal also recited (id. ¶ 32.b-d) that she had filed a formal discrimination complaint with the Agency on July 8, 1997. (Although the form directs "Attach a copy" of the EEO complaint, no copy of such an attachment is of record.) During a hearing that commenced on October 20, 1997, Lozado-Boulware withdrew her race and sex discrimination allegations from her appeal. (See Dec. 17, 1997 Initial Decision by MSPB Admin. Judge Nina Puglia, attached as Def. Ex. 4.) On December 17, 1997, the administrative judge affirmed the Agency's removal action. (Id. at 12.)
Lozado-Boulware petitioned for a review of the initial decision by the full MSPB (the "Board"), which was denied on July 9, 1998. (July 9, 1998 Board Order, attached as Def. Ex. 5.) Lozado-Boulware appealed that decision to the United States Court of Appeals for the Federal Circuit. In her appeal, Lozado-Boulware argued that the Agency failed to prove the charges against her and that the discipline was disproportionate. (Initial Form Brief of Petitioner, attached as Def. Ex. 6.) The court of appeals denied her appeal on November 2, 1999. (Boulware v. Dep't of the Treasury, No. 98-3337, 1999 WL 515479 (Fed. Cir. Nov. 2, 1999), attached as Def. Ex. 7.)
Lozado-Boulware first asserted allegations of discrimination on January 7, 1997, when she contacted an EEO counselor at the Agency claiming discrimination on the basis of color, race, national origin and sex concerning the discipline meted out after the October, 1996 confrontation. (EEO Counseling Report, attached as Def. Ex. 8.) After failing to resolve the dispute informally, on April 16, 1997 Lozado-Boulware filed an Individual Complaint of Employment Discrimination ("EEO complaint") with the Agency. (Def. Ex. 9.)*fn3 The Agency's Regional Complaint Center accepted the administrative complaint for processing and investigation of two issues: whether Lozado-Boulware was discriminated against on the basis of her age, race, sex, or national origin and whether she was retaliated against based on prior EEO activity when (1) the Agency provided her the February 24, 1997 letter proposing her removal and (2) her manager allegedly delayed processing her OWCP forms. (April 30, 1997 letter from Dorian Morley to Sandra Lozado-Boulware, attached as Def. Ex. 10.) All these steps in the EEO process occurred before the Agency reached its final decision to fire Lozado-Boulware on June 27, 1997.
On December 15, 1997, the District Director of the EEOC notified Lozado-Boulware that an EEOC administrative judge, in a recommended decision dated December 9, 1997, proposed dismissing Lozado-Boulware's discrimination claims concerning her termination pursuant to 29 C.F.R. § 1614.107(a)(5), on the basis that the claim rested on a proposed, rather than actual, removal.*fn4 (Recommended Decision at 6-7; Def. Ex. 11.). The administrative judge also concluded that Lozado-Boulware had abandoned her discrimination allegations based on delay in processing the OWCP forms (id. at 2, n. 1) and that, because Lozado-Boulware had never participated in any protected EEO activity prior to contacting the EEO counselor in January 1997, she could not prove that the alleged delay was due to retaliation. (Id. at 8-9.)*fn5
On January 30, 1998, the Agency adopted the administrative judge's recommended decision and issued a Final Agency Decision rejecting Lozado-Boulware's EEO Complaint (January 30, 1999 Final Agency Decision, attached as Def. ex. 12.) Lozado-Boulware appealed that decision to the EEOC Office of Federal Operations, which rejected her appeal on March 5, 1999. (Lozado-Boulware v. Rubin, No. 210-97-6351X, 1999 WL 139398, (EEOC March 5, 1999); Def. Ex. 13.) In that decision, the Office of Federal Operations took judicial notice that the Board had finally upheld the removal on July 9, 1998. Lozado-Boulware filed a Request for Reconsideration which was denied on July 30, 2001. (Def. Ex. 14.)
On October 25, 2001, Lozado-Boulware filed this action in the United States District Court for the Northern District of Indiana. Because venue was improper in that District and, pursuant to an order entered on April 4, 2002, the case was transferred to this court. The Secretary then filed a motion to dismiss, which this court has given the parties notice that it will construe as a motion for summary judgment because of the need to consider evidence outside of Lozado-Boulware's form Complaint
The Secretary presents two grounds for dismissal of Lozado-Boulware's Complaint: (1) the doctrine of res judicata bars Lozado-Boulware's litigation of discrimination claims based on her termination, and (2) the remaining allegations fail to state a claim upon which relief may be granted. Plaintiff, who proceeds pro se, merely argues that the MSPB, the Board, and the Agency were wrong and she should be reinstated to her job.*fn6 Resolution of this case requires the ...