By Meghan Droste, December 18, 2018
One common theme in a few of my articles this year has been timeliness, such as the timely filing of formal complaints and the timely completion of investigations. One key question in all timeliness issues is: How do you calculate deadlines? After all, how do you know if something is untimely if you don’t know what the deadline is? This week’s Tips from the Other Side come from two cases in which the agencies incorrectly deadlines, which led them to improperly dismiss complaints as untimely. 
In Janay H. v. Army, EEOC App. No. 0120143216 (Feb. 5, 2015), the agency issued the Notice of Right to File on July 18, 2014 and the complainant filed her formal complaint on August 4, 2014. The agency then dismissed the complaint, in part because it deemed it to be untimely. The agency asserted in the dismissal and during the appeal that the 15-day deadline to file a formal complaint was August 2, 2014 and, therefore, the complaint was two days late. The agency failed to note, however, that August 2 fell on a Saturday and the complainant filed her formal complaint on the first business day after the deadline. In its decision reversing the dismissal and remanding the complaint for processing, the Commission reminded the agency that when a deadline falls on a weekend or federal holiday, it is automatically moved to the first business day following the deadline. The complaint was timely, the Commission found, because the complainant filed her formal complaint on the Monday following the Saturday deadline.
In Takako Y. v. Army, EEOC App. No. 012016159 (Oct. 19, 2016), the complainant filed multiple motions to amend while her initial complaint was pending the assignment of an administrative judge for one year. Once the Commission assigned the case to a judge, the judge denied the motions to amend and remanded the new claims to the agency for processing. The complainant contacted an EEO counselor 14 days after the judge denied the motion to amend. The agency then dismissed all of the claims as untimely. In doing so, the agency calculated the 45-day deadline from the date of each incident, and not the date of the judge’s ruling. In its opposition to the appeal of the dismissal, the agency argued that because the Commission had not yet assigned the initial EEO complaint to an administrative judge, the complainant should not have filed motions to amend instead of new complaints. The Commission disagreed and reversed the agency’s dismissal of the claims. It found that the administrative judge erred in not instructing the agency to use the date of remand as the date of EEO contact, and the agency erred in failing to do so on its own. When confronted with the task of determining whether a complaint, or any other document, is timely filed, be sure to double or even triple check the regulations and a calendar if needed. While dismissing the complaint might save some time at the outset, it will ultimately create more work once the agency has to respond to an appeal. [email protected]
 Full disclosure: I represented the complainants in both of the featured cases.