By Meghan Droste, February 14, 2018

The federal sector process is made up of many steps with many deadlines.  Complainants must do several things, most of which involve filling out forms, before their cases go to hearing before an EEOC administrative judge.  Even one missed step can mean the end of a complaint.  Perhaps the most important of these steps is making initial contact with the EEO office (or someone reasonably connected with it—a topic for another article) within 45 days of the last discriminatory event.  It seems so simple from an agency’s perspective—if the agency took the alleged discriminatory action more than 45 days before the complainant contacts an EEO counselor, it’s all over for the complainant.  Of course, it’s not always that simple.

As the Commission reminds us most recently in Shayne K. v. Department of Defense, EEOC Appeal No. 0120180070 (January 4, 2018), the 45-day clock actually starts from when the complainant knew, or should have known, that the discriminatory act occurred.  In examining these issues, the Commission applies a “reasonable suspicion” standard.  This means that the 45-day time period does not start until the complainant reasonably suspects that he or she is the victim of discrimination.

This still seems pretty easy, right?  In a non-selection case, for example, a complainant must contact a counselor within 45 days of learning that the agency selected another candidate.  Well, not necessarily.  The Shayne K. case is a good example of how that clock does not always start ticking right after the complainant becomes aware of the personnel action.  The agency notified the complainant on February 16, 2017 that it had selected someone else for the position at issue.  The agency did not, however, tell the complainant who it had selected.  The complainant learned on June 20, 2017—through the results of a FOIA request he filed in February—that the selectee was outside of the complainant’s protected class.  The complainant then contacted an EEO counselor on June 26, 2017.

The Commission held that the complainant’s EEO contact—130 days after he learned of the non-selection—was timely; because the complainant did not know the protected classes of the selectee until June, he could not have reasonably suspected that he was the victim of discrimination until then.  The very act of the non-selection was not enough to trigger the deadline—there had to be some reason for the complainant to suspect that the agency did not select him for discriminatory reasons. Ultimately, the EEO process requires reasonable suspicion, not mind reading.  [email protected]

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