The EEOC has recently held that its 45-day time period for initiating EEO counseling can be waived because the employee’s National Guard Squadron was deployed on active duty in Turkey from December 16, 2003, until February 13, 2004. Ulmer v. Potter, Postmaster General, EEOC Appeal No. 01450073 (11/16/04). Complainant had alleged that he was subjected to race and sex discrimination when the maintenance manager “conveniently lost” his Preferred Assignment Request (PAR) that would have entitled him to a custodial position awarded to a white female effective November 29, 2003. The Postal Service had dismissed the formal EEO complaint after determining that complainant’s initial EEO contact in February 2004 fell outside of the EEOC’s 45-day time limitation.
The Commission reversed on appeal, finding that special circumstances warranted tolling the limitations period in this case. It was noted that complainant had raised the issue in early December 2003 when he had a reasonable suspicion of discrimination and normally would have had until mid-January 2004 to timely contact an EEO counselor. While complainant did not initiate contact with the EEO counselor until February 26, 2004, following his return from Turkey, he contended that on February 17, 2004, that the manager had “conveniently lost” and failed to transact his PAR and thus his EEO contact was timely. However, the Commission found that complainant had, or should have had, a reasonable suspicion of unlawful employment discrimination in early December 2003 when he contacted an agency official about the white female employee receiving the bid.
Nevertheless, the EEOC determined that the time limit should be waived due to complainant’s overseas deployment on active duty:
We find that for this period of deployment (December 16, 2003 until February 13, 2004), the forty-five day time limitation period is tolled. The record reflects that upon complainant’s return from Turkey in mid-February 2004, complainant initiated EEO Counselor contact on February 26, 2004. As a result of the period when the limitation period was tolled due to complainant’s National Guard duty, the Commission determines that complainant’s EEO Counselor contact was timely.
Thus the Commission ordered that the agency process the remanded claims and conduct a timely EEO investigation.
This case illustrates the principle that the 45-day time period for initiating EEO counseling may be tolled for valid reasons. However, this is an exceptional situation, and it is still up to a federal employee to use due diligence if he or she is prevented from timely contacting an EEO counselor by extraordinary circumstances beyond the employee’s control.
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