Eric J. Bolten, Complainant,v.Colin L. Powell, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionNov 23, 2004
01a41975_r (E.E.O.C. Nov. 23, 2004)

01a41975_r

11-23-2004

Eric J. Bolten, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.


Eric J. Bolten v. Department of State

01A41975

November 23, 2004

.

Eric J. Bolten,

Complainant,

v.

Colin L. Powell,

Secretary,

Department of State,

Agency.

Appeal No. 01A41975

Agency No. DOS-F-018-04

DECISION

Upon review, the Commission finds that the agency's decision dated

January 16, 2004, dismissing complainant's complaint due to untimely

EEO Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).

In his complaint, complainant, a former mail and file clerk in the Legal

Bureau within the agency, alleged that he was discriminated against

in June 1998, March 1999, May 2000, August 2003, and November 2003.

As relief, complainant sought to be reinstated within the agency or

other government agency.

The record indicates that in February 1996, complainant's security

clearance was placed on probationary status; in or around June 1998, he

was notified of the revocation of his security clearance; in or around

March 1999, he was formally notified of the revocation of his security

clearance, and at the same time, he was placed in a temporary position as

a mail clerk in an unclassified area without clearance; in November 1999,

he had surgery; in or around May 2000, he was forced to report back to

work but he was not able to work in the mail room due to its noise and

vibrations; on December 30, 2000, he applied for and accepted disability

retirement; in March 2003, he asked his supervisor for reinstatement,

but he was told that his position was abolished; and in response to his

letter requesting reinstatement, the agency, in a letter dated July 17,

2003, denied his reinstatement and informed him that he must apply for

regular employment with any federal agency that had vacancy announcements

for which he was qualified.

The record indicates that complainant contacted an EEO Counselor

with regard to his complaint on November 3, 2003. Upon review, the

Commission finds that complainant's EEO Counselor contact with regard

to the alleged incidents of June 1998, March 1999, and May 2000, was

beyond the 45-day time limit set by the regulations. With regard to

the incidents of August and November 2003, it appears that complainant

is alleging that he was denied his reinstatement within the agency after

his retirement. However, the record clearly indicates that complainant

was previously informed of the denial of reinstatement, verbally,

from his supervisor in March 2003, and, in writing, in July 2003.

Thus, the Commission finds that complainant's EEO Counselor contact,

with regard to the alleged reinstatement, was beyond the 45-day time

limit set by the regulations. Subsequent denials of reinstatement do

not, except in limited circumstances not presented here, state separate

claims of discrimination. The Commission will not allow a complainant

to circumvent the 45-day time limit merely by repeating a request

for reinstatement. Furthermore, complainant failed to show that he

contacted an EEO Counselor or the EEO Office with the intent to pursue

the EEO process prior to November 3, 2003.

Accordingly, the agency's decision to dismiss the complaint is AFFIRMED.

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

November 23, 2004

__________________

Date