By Meghan Droste, July 17, 2019
Happy summer dear FELTG readers! By the time you read this, we will be firmly in the middle of July and, if you are in an area like DC, in the midst of plenty of heat and humidity. It’s the perfect time to take it easy, find some shade, and maybe indulge in a frozen treat or two. (I leave it to you to decide what form those treats will take. Personally, I’m sticking with some coffee cookie ice cream).
In the spirit of the lazy days of summer, I’m bringing you a pretty straight forward case that won’t require too much thought to digest. In Leisa C. v. Department of Agriculture, EEOC App. No. 2019001265 (April 3, 2019), the agency issued a Notice of Proposed Removal to the complainant on February 2, 2018. Four months later, on June 20, 2018, the agency issued a decision on the proposal, removing the complainant effective June 23, 2018. The complainant received the decision letter on June 27, 2018, and she contacted an EEO counselor on July 16, 2018. The agency subsequently dismissed the complaint, finding the complainant contacted a counselor beyond the 45-day deadline.
If you are currently scratching your head, you’re not alone. I was a bit surprised when I read this one too. The complainant contacted a counselor less than a month after she received the decision, and only 23 days after the effective date of the removal. I am terrible at math, but it’s pretty clear even to me that 23 is less than 45, so there is no question that the complainant’s contact was timely. See, I told you this one would be pretty straight forward. No heavy lifting required.
The Commission didn’t offer any detail on the agency’s argument, but my best guess is that it based the deadline on the February 2, 2018 notice proposing the complainant’s removal (164 days before the complainant made EEO contact). If this was the theory of the agency’s case, it unfortunately doesn’t float. As the Supreme Court has said, “[t]he claim accrues when the employee is fired,” and not a moment before. See Green v. Brennan, 136 S. Ct. 1769, 1777 (2016).
And with that, I leave you all to find a pool to float in or a hammock to nap in; just be sure to wear lots of sunscreen. Droste@FELTG.com