The U.S. Court of Appeals in the District of Columbia recently reversed a district court’s granting of summary judgment to the agency in Miller v. Hersman, No. 08-5494 (DC Cir. 2/5/10). The district court had determined that the employee failed to initiate EEO contact within 45 days after learning of his non-selection for a budget officer position which was awarded to a female candidate at the National Transportation Safety Board. The second count alleged discriminatory non-selection for one of two special assistant vacancies which was initially filled on a temporary basis.

While it was undisputed that the employee failed to initiate EEO contact within 45 days of his first learning of his non-selection to the budget officer position on October 24, 2001, he alleged that he didn’t become aware that a female was selected until December 2001. The appeals court found that the agency’s evidence failed to demonstrate that the employee knew the identity of the selectee or her gender as of October 24, 2001. While an employee "has a responsibility, when possible, to further investigate a personnel action in order to determine whether the action was discriminatory, it is defendant’s burden to show that the plaintiff did not timely contact an EEO counselor." As the agency offered "scant evidence" when the employee first initiated EEO contact, the court decided that the agency failed to carry its burden of proving untimely EEO contact.

The agency also had dismissed the second count on the basis of untimely EEO contact. Viewed in a light most favorable to the employee, the evidence supported his claim that he timely contacted the EEO officer about his non-selection for the special assistant positions. The initial EEO contact was made in spring 2001, but the EEO officer failed to assign an EEO counselor until November 2001. The EEOC has "consistently held that a complainant satisfies the criterion of EEO counselor contact by contacting an agency official logically connected with the EEO process, even if that official is not an EEO counselor, and by exhibiting an intent to begin the EEO process." Osuagwu v. Peake, No. 0120081307, 2008 WL 2264405, at *1 (EEOC 5/20/2008). The case was remanded to the district court for further proceedings. 

 

* 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.