01a54417
11-23-2005
Ralph D. Ransom, Complainant, v. Condoleeza Rice, Secretary U.S. Department of State Agency.
Ralph D. Ransom v. U.S. Department of State
01A54417
November 23, 2005
.
Ralph D. Ransom,
Complainant,
v.
Condoleeza Rice,
Secretary
U.S. Department of State
Agency.
Appeal No. 01A54417
Agency No. DOS-F-042-05
DECISION
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 April 7, 2005, complainant
alleged that he was subjected to discrimination on the bases of race
(African-American), color (Black), and in reprisal for prior EEO
activity<1> when �the Regional Security Officer failed to answer a valid
request for information, under the Freedom of Information Act [FOIA];
thereby preventing [complainant] from working at the U.S. Embassy Wine
Cellar, London, England.� Letter from complainant to U.S. Department
of State, Office of Civil Rights of 4/25/05.
EEOC's regulations authorize an agency to dismiss an EEO complaint
that fails to state a claim for which relief can be granted. See 29
C.F.R. � 1614.107(a) (2004). The standard that must be met to justify
a dismissal on this ground is similar to that required by the courts
under Fed. R. Civ. P. 12(b)(6). See Cobb v. Dep't of the Treasury,
EEOC Request No. 0597007 (Mar. 13, 1997). Moreover, our case law
requires that the complainant be �aggrieved,� meaning, he or she must
have �suffered direct and personal deprivation at the hands of the
employer.� Gilyard v. Dep't of Energy, Appeal No. 01A01550 (June 9,
2003) (citing Hobson v. Dep't of the Navy, EEOC Request No. 05891133
(Mar. 2, 1990)); see also Diaz v. Dep't of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994) (defining an �aggrieved employee� as one
who suffers a present harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy.). Under Section
107(a) the allegations in a complaint must be taken as true and all
reasonable inferences must be drawn in favor of the complainant. See id.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that no set of facts can be established that
would entitle the complainant to the relief sought in the complaint.
See id. (citing Conley v. Gibson, 355 U.S. 40, 45-46 (1957)).
The Commission finds that complainant has failed to state an actionable
claim under the EEOC regulations. The agency first formulated
complainant's claim as one alleging discrimination �when the Regional
Security Officer urged the American Embassy Employee Association in London
to terminate [his] employment.� See Acceptance Letter of 4/20/05.
Complainant, however, responded to the Acceptance Letter on April
25, 2005, stating that the agency did not frame the issue properly.
The language quoted above is how complainant stated the issue. He has
therefore clarified that he does not take issue with his termination,
but rather with the allegedly discriminatory manner in which he was
denied access to the information on which the decision to restrict his
work was made. Based on complainant's own statements, therefore, we
must agree with the agency that he fails to state an actionable claim.
In fact, we find that the complaint is an impermissible collateral
attack on the FOIA process and the perceived failure of the system to
provide him with the information he requested. We have repeatedly held
in this regard that where a complainant uses the EEO process to lodge a
collateral attack on another proceeding, the complaint fails to state
a claim. See, e.g., Nurruddin v. Nat'l Aeronautics & Space Admin.,
EEOC Appeal No. 01A23148 (Sept. 30, 2004).
In sum, as complainant's complaint is truly with the failure of the FOIA
request system to provide him information, we find that he has used the
EEO process to collaterally attack FOIA. Accordingly, we AFFIRM the
agency's final decision.
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:
November 23, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 In his Formal Complaint, complainant
refers to his prior protected activity in relation to a Department of
Navy complaint, DON-04-65956-001.