U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alfonzo H,1 Complainant, v. John Kerry, Secretary, Department of State, Agency. Appeal No. 0120160450 Agency No. DOS025515 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated October 15, 2015, dismissing his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Foreign Service Officer (FS-02) in the District of Columbia. He also held the elected position of State Vice President for the American Foreign Service Association (AFSA), a professional association that is the exclusive bargaining agent for Foreign Service employees. On July 7, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Japanese-American/Asian) and sexual orientation when, on April 1, 2015, he learned that disparaging comments were posted about him on an internet blog frequented by AFSA members. At the time of the alleged discriminatory incident, Complainant was running for an AFSA office and several AFSA members alerted him about the disparaging comments at issue. A multi-paragraph blog post identified Complainant by name in reference to his candidacy for AFSA office. The post, which was critical of Complainant, made reference to his Japanese-American heritage and sexual orientation, providing details of Complainant's personal romantic relationship. The author is identified only as "Steve," which Complainant alleges is a common pseudonym for individuals who want to post anonymously to that site. Complainant alleges that he believes the post was actually written by the individual employed with the Agency, who was the former AFSA Vice President before Complainant replaced him. On October 15, 2015, the Agency issued a final decision dismissing the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), concluding the blog at issue was not affiliated with the Agency and did not identify any Agency official as its author. Therefore, the Agency found that the blog's publication was beyond the Agency's control. ANALYSIS AND FINDINGS EEOC Regulation 29 CF.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). The record contains a copy of the blog in question. An examination of the contents of the blog, entitled "Dead Men Working," shows that it does not identify its author and is posted on the non-Agency related internet site Blogspot.com. The blog, which is critical of Complainant, contains the following disclaimer: "The statements on this blog reflect the knowledge and experience of the writers. They do not reflect any official position by the U.S. Department of State." Under the facts as presented in this case, we concur with the Agency that Complainant has failed to allege facts that would establish that he is an aggrieved employee. There is simply no indication that the blog at issue was sufficiently related to Complainant's employment. While directed at an audience of current and former Foreign Service officers, there is no indication that blog is sponsored by or affiliated with the Agency or even the AFSA,2 or that Agency resources or official time were used to author the article on the blog. Moreover, while Complainant asserts that an Agency official was the author of the blog article in question, the blog itself does not identify an author other than to indicated the article was posted by "Steve."3 In sum, we conclude that, without more, Complainant has failed to allege sufficient facts to connect the alleged discrimination to his employment with the Agency. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. signature Carlton M. Hadden, Director Office of Federal Operations April 22, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 According to a Declaration submitted by Complainant, officers of the AFSA learned about the contents of the blog because they receive Google alerts to note anything on the internet that mentions "AFSA," and this blog post popped up in an alert. 3 Complainant, himself, concedes this is not the first name of the agency employee he believes authored the blog. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 020160450 4 0120160450