U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * ALFONZO H., COMPLAINANT, v. JOHN KERRY, SECRETARY, DEPARTMENT OF STATE, AGENCY. Request No. 0520160327 Appeal No. 0120160450 Agency No. DOS-0255-15 July 20, 2016 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120160450 (Apr. 22, 2016). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). 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 American Foreign Service Association (AFSA) members. The AFSA is a professional association that is the exclusive bargaining agent for Foreign Service employees, and Complainant served as State Vice President at the time of his complaint. 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. Complainant appealed and, in Alfonzo H. v. Dep't of State, EEOC Appeal No. 0120160450 (Apr. 22, 2016), the Commission affirmed the Agency's dismissal. In so finding, the Commission noted that Complainant failed to allege facts that would establish that he was an aggrieved employee as there was no indication that the blog was sufficiently related to his employment. Further, the Commission added that there was no indication that the blog was sponsored by or affiliated with the Agency or even the AFSA, or that Agency resources or official time were used to author the article on the blog. Thus, the Commission concluded that Complainant failed to allege sufficient facts to connect the alleged discrimination to his employment with the Agency. In his request for reconsideration, Complainant expresses his disagreement with the previous decision and submits new documentation which he argues supports his claim that he is an aggrieved employee. The Commission notes that new evidence generally will not be accepted in a request for reconsideration. See Houser v. Dep't of Homeland Sec., EEOC Request No. 0520110543 (Oct. 7, 2011) citing Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Aug. 5, 2015), at Ch. 9. Further, the Commission emphasizes that a request for reconsideration is not a second appeal to the Commission. EEO MD-110, at 9-13; see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120160450 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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. 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. Hadden Director Office of Federal Operations 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.