By Deborah Hopkins, October 26, 2021

Equal Employment Opportunity Commission regulations have long required that Federal employees (or applicants) must make a request to initiate precomplaint counseling with an EEO Counselor within 45 days of the effective date of the personnel action, event or matter alleged to be discriminatory. 29 CFR § 1614.105(a)(1). And 29 CFR § 1614.105(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in § 1614.105, unless the Agency extends the time limits in accordance with § 1614.604(c).

In a recent case, the EEOC looked at this very issue when a complainant argued her contact was timely, and the agency argued otherwise. The complainant alleged that her agency subjected her to discrimination on the basis of sex (female) when:

1. She was expelled from the Physical Security Training Program (PSTP) class at FLETC on Jan. 31, 2017; and

2. Her employment as a Law Enforcement Specialist was terminated on Feb. 8, 2017.

At the conclusion of the investigation, the agency provided the complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). She timely requested a hearing, and the agency filed a Motion to Dismiss the complaint for untimely EEO Counselor contact. The complainant timely filed an Opposition to the Agency’s Motion to Dismiss.

The complainant argued that she timely initiated EEO counselor contact when she contacted the DHS Office of Civil Rights and Civil Liberties, Equal Employment Opportunity and Diversity Division on March 21, 2017, after obtaining the phone number from the Agency’s website. She also asserted she made additional calls and left voicemails on March 23, 24, and 27, 2017 and on an unspecified date, she was contacted by the Agency’s EEO office and directed to contact the Federal Protective Service Complaints Manager. She did so on April 5, 2017, and was directed to the FLETC EEO office.

The AJ found that the alleged discriminatory acts took place on Jan. 31, 2017, the date of the complainant’s expulsion from FLETC; and Feb. 8, 2017, the date of the complainant’s removal. Therefore, the complainant had until March 25, 2017 to contact an EEO counselor. Noting that March 25, 2017, fell on a Saturday, the AJ observed that even if the time limit was extended to the next business day (Monday, March 27, 2017), the complainant’s April 5, 2017 contact with an EEO counselor was still untimely.

The AJ reasoned that the complainant was informed of the 45-day time limit in her Welcome Packet, handbook, and termination letter, and that her argument that her contact with another office was timely, was misplaced. The AJ reasoned that where a complainant is provided clear procedural instructions regarding how and when to contact the Agency’s EEO office, a failure to follow such instructions renders attempted contact insufficient.

On March 4, 2021, the Agency issued its Final Action fully implementing the AJ’s decision, procedurally dismissing the complaint pursuant to 29 C.F.R § 1614.110(a). The complainant appealed to the Commission.

After reviewing the arguments from both sides, the Commission found the complainant initiated contact on March 21, 2017, when she called the DHS Office of Civil Rights and Civil Liberties. Both the EEO Counselor’s Report and the “Headquarters/FPS EEO Intake Form” identified March 21, 2017 as the date of initial contact.

The Commission explained:

As for the agency’s contention on appeal that this contact was insufficient and Complainant was required to contact the FLECTC EEO office, we disagree. We have consistently held that “a complainant may satisfy the criterion of Counselor contact by initiating [contact with] an agency official logically connected with the EEO process, even if that official is not an EEO Counselor.” Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Here, by contacting the Agency’s Office of Civil Rights and Civil Liberties, instead of a local, particular EEO office, we find that Complainant met her obligation in initiating the EEO process. Therefore, we find that Complainant’s contact regarding her February 8, 2017 termination … was timely.

Ellan C. v. Mayorkas, EEOC No. 2020003085 (Aug.19, 2021).

The EEOC remanded the case back to the agency, and ordered the agency to send the file to the hearings unit. Whether there was discrimination on the merits, we don’t yet know, but we now have another case that tells us EEOC will consider contact timely if the contact is logically related to the EEO complaint or process. For more on this and other EEO mistakes to avoid, join FELTG November 16 for the 60-minute webinar So You Think You Can Dismiss That EEO Claim. [email protected]

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