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Friday, March 19, 2010

Court Decision Highlights EEO Filing Deadlines for Federal Employees

Federal employees who believe their agencies have discriminated against them in violation of equal employment opportunity laws must be aware of deadlines establishing when they should contact their agency EEO office and when they should file their formal complaint of discrimination. If an employee fails to meet procedural deadlines, an administrative or federal court judge could dismiss their case, regardless of the facts of the case.

In Hairston v. Tarpella, No. 08-1531 (D.D.C. Oct. 21, 2009), a federal trial court in Washington, D.C., highlighted two deadlines federal employees must obey in order to meet procedural requirements. First, within 45 days of a discriminatory event, federal employees must contact their agency’s EEO office to notify an EEO counselor of discrimination. 29 C.F.R. § 1614.105(a)(1) (2010). Second, when the EEO office has concluded counseling and issued a Notice of Right to File a Formal Complaint, the employee must file the formal complaint within 15 days. 29 C.F.R. § 1614.106(b). In describing the facts surrounding two non-selection complaints by one employee, the court in Hairston held that although employees must abide by regulatory deadlines when filing EEO complaints, in some circumstances, judges may extend deadlines.

The employee in Hairston worked at the Government Printing Office (“GPO”) for 19 years when he applied for another position within the agency in August 2006. On September 6, 2006, the GPO cancelled the vacancy announcement without hiring any applicants. On October 5, 2006, 30 days after the GPO cancelled the vacancy announcement, the employee contacted the GPO’s EEO office to initiate EEO counseling alleging race (African American) discrimination. Because the employee contacted the EEO office within 45 days of the cancelled vacancy announcement, he satisfied the first deadline of the federal EEO complaint process.

When the employee and the GPO failed to resolve the EEO complaint during EEO counseling, the GPO issued the employee a Notice of Right to File a Formal Complaint of discrimination on October 27, 2006. Under the regulations, the employee needed to file his formal complaint 15 days after October 27, 2006. Unfortunately, the employee missed the 15-day deadline and did not file his formal complaint. However, the employee argued that he did not file a formal complaint because he relied upon contradictory information from an EEO counselor. The EEO counselor advised the employee that before he filed his formal complaint, he should gather more evidence of discrimination. Therefore, because the employee followed the EEO counselor’s advice to wait for more evidence, he missed the 15-day deadline to file a formal complaint. The court decided that the employee’s first non-selection complaint could proceed despite missing the 15-day filing deadline because the employee relied upon erroneous oral representations by the EEO office that discouraged him from filing a timely formal complaint.

During the processing of the employee’s first non-selection complaint, the GPO posted a second vacancy announcement on October 13, 2006. For the second vacancy announcement, the GPO notified the employee of his non-selection in January 2007. However, unbeknownst to the employee, the GPO hired someone for the second vacancy announcement on March 19, 2007. Eventually, on June 14, 2007, the employee gained knowledge of the March 19, 2007, selection by the GPO. On June 21, 2007, seven days after discovering that the GPO had hired an allegedly less qualified white applicant for the second announcement, the employee contacted the EEO office.

This time, the GPO argued that the court should dismiss the employee’s second complaint because he failed to contact the EEO office within 45 days of the selectee’s hiring on March 19, 2007. The court disagreed. Under EEO regulations, courts may treat otherwise untimely complaints as timely if the employee “did not know and reasonably should not have known that the discriminatory matter or personnel action occurred.” 29 C.F.R. § 1614.105(a)(2). The court concluded that the 45-day deadline to contact the EEO office started when the employee first gained knowledge of the GPO’s allegedly discriminatory hiring on June 14, 2007, not when the GPO made its selection on March 19, 2007. Thus, because the employee contacted the EEO office seven days after discovering the discriminatory selection, he could proceed with his second non-selection complaint.

Although the court eventually allowed the employee’s complaints to proceed, the Hairston case highlights the importance of knowing EEO deadlines for federal employees. The employee in Hairston cannot be blamed for missing deadlines because the GPO’s EEO office interfered with his first complaint and improperly processed his second complaint. However, in order to more efficiently pursue a discrimination complaint, federal employees should be aware of the 45-day deadline to contact the EEO office following a discriminatory event and the 15-day deadline to file a formal complaint after conclusion of EEO counseling. Once you suspect that you have been discriminated against, you should seek legal advice as soon as possible. When you obtain professional guidance early in the complaint process, your legal representative will be in a better position to develop of legal strategy that maximizes your options.

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