In Manear v. United States Postal Service, EEOC Appeal No. 0120063086 (November 22, 2006), the EEOC reversed an agency’s decision to dismiss an EEO complaint, finding that a Postal Service employee had timely contacted a EEO counselor, despite the fact that the contact was more than 45 days after learning of the adverse treatment. The Commission found that because the complainant did not have a reasonable suspicion of discrimination until two months after the adverse employment action occurred, his contact was timely.

On October 23, 2005, the complainant was informed that scheduled days off were going to be changed. Two months later, on December 20, 2005, the complainant, for the first time, learned that a similarly situated co-worker’s days-off were not changed. On January 13, 2006, the complainant initiated contact with an EEO counselor. Thereafter, the agency dismissed his complaint, stating that he failed to initiate contact with an EEO counselor within the 45 day limitation period.

On appeal, the Commission reversed the agency’s dismissal and found that the complainant’s contact was timely, because he did not reasonably suspect that he was being discriminated against until he learned that a co-worker’s schedule had not been changed. Thus, as the Commission found, the time limitation is not triggered until a complainant reasonably suspects discrimination.

Under the EEOC regulations, an aggrieved person must contact an EEO counselor within 45 days of the matter alleged to be discriminatory. The above case is a rare exception to that general rule. To ensure prompt investigation and resolution of EEO complaints, federal employees are urged to file complaints well before the 45-day deadline to prevent circumstances which may cause complaints to be found untimely.

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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