By Deryn Sumner, February 15, 2017
Federal employees have a very short statute of limitations to initiate EEO contact: the employee must make contact with an EEO counselor within 45 days from the date of the act thought to be discriminatory.
Luckily there are exceptions that prevent my job from being farmed out to robots. One of those exceptions occurs when the employee forms a “reasonable suspicion” of discrimination after the 45 day window has elapsed. Yes, the actual incident occurred past the 45 day timeframe, but the employee did not reasonably suspect that discrimination was afoot until afterwards. Sometimes, when reviewing whether to accept or dismiss complaints for investigation, EEO specialists may not properly consider whether there’s a basis to extend the deadline to make EEO contact.
The Commission recently addressed such an instance in Leisa C. v. Department of Veterans Affairs, EEOC No. 0120170391 (January 27, 2017). There, the complainant made EEO contact on May 2, 2016 alleging that her non-selection for a position as a Nurse Practitioner was motivated by her age and participation in prior EEO activity. The agency dismissed the formal complaint, noting that complainant learned of her non-selection on November 30, 2015 when she received an email informing her of the non-selection and thus her May 2, 2016 contact was untimely.
The complainant appealed and argued that although she knew of the non-selection back in November 2015, she only suspected discrimination when she learned the identity of the selectee in April 2016 after requesting, and not receiving an explanation for her non-selection several times. Further, the complainant argued that she only formed a reasonable suspicion of retaliation “after hearing an Agency representative’s remarks in the context of mediation on June 28, 2016.”
The Commission determined that dismissal of the formal complaint was inappropriate because the agency delayed in providing the complainant an explanation for 4.5 months and she did not reasonably suspect discrimination until after receiving the explanation.
A word of caution to the complainant: if the claim of retaliation is based on representations made during mediation, you’re most likely out of luck getting that admitted as evidence. But at least you can proceed with your case now.
And I will give credit where it is due. Assuming the dates in the decision are correct, the EEOC addressed and remanded this complaint for processing relatively quickly. The agency issued a final decision dismissing the complaint on September 22, 2016, and the Commission considered an appeal and issued a decision just about four months later, on January 27, 2017. Sumner@FELTG.com