Federal employees have 45 days from the date on which they learned of an action they consider discriminatory (e.g., non-selection, discipline, etc.) to file an informal EEO complaint with an agency’s EEO counselor. In one of the most significant employment law cases in recent years, Morgan v. National Railroad Passenger Corp., 536 U.S. 101, (2002), the Supreme Court made it more difficult for employees to claim relief for discrimination against them which they claim to be part of a “continuing violation” pre-dating this 45-day window. In other words, if you suffered an adverse employment action more than 45 days ago, and you have not contacted an EEO counselor, it is probably too late for you to file a complaint about that action, because of Morgan.
Before Morgan, an employee who suffered a series of interrelated events dating back years could argue that the employer was engaging in a “continuing violation,” and claim relief for all of the issues, as long as the most recent incident occurred within the 45-day window. Anisman v. Dept. of Treasury, EEOC No. 05A00283 (2001). After Morgan, only if you allege a hostile work environment, and if all acts are part of the same unlawful employment practice, can you claim relief for the incidents which occurred more than 45 days before the complaint was filed. See, e.g., Bena v. USPS, EEOC Appeal No. 01A33825 (2004), at *2.
You can allege a continuing violation, asserting a hostile working environment exists, where: 1) you were harassed based upon your race, sex, religion, national origin, age, disability, or your prior protected EEO activity (“protected class”); 2) you were subjected to unwanted verbal or physical conduct involving the protected class; 3) the harassment had the purpose or effect of unreasonably interfering with your work performance and/or creating an intimidating, hostile, or offensive work environment; 4) a reasonable person in your position (an average person of your race, sex, etc.) would find the conduct so intimidating, hostile, or offensive that his/her work environment would be altered; and 5) the conduct was perpetrated by a manager or happened even after you complained to management about it. See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Ornelas v. Dept. of Justice, EEOC Appeal No. 01995301 (2002).
You can also allege a continuing violation stating that your agency is preventing you from doing the duties of your job, but only if you suggest that this action by the agency creates a hostile working environment which is severe or pervasive. See, e.g., Bena, supra at *2 (where Postal Service “flatsorter” not allowed to perform duties of her job, considered a continuing violation); Wegener v. Dept. of Interior, EEOC Appeal No. 01A03847 (2003), at **3-4 (continuing violation where complainant did not receive oral assignments like the male employees and was told she would work in certain undesirable type of assignment); Wright-Outlaw v. Dept. of Veterans Affairs, EEOC Appeal No. 01A20214 (2003), at *3 (preventing complainant from doing her supervisory job was continuing violation). On the other hand, under Morgan, if you were denied selection for a promotion repeatedly over the years, only the denied promotion within 45 days before the EEO complaint would be actionable – the others are considered “discrete” employment actions, and are only actionable if you filed timely regarding each.
It is the agency’s burden to demonstrate an untimely date of contact when it argues untimeliness. Baker v. Veterans Affairs, EEOC Appeal 01903288 (1990). However, if an agency succeeds in barring you from relief for any of your claims more than 45 days old, that history is still useful to you. Under Morgan, it can serve as background evidence to prove that the agency’s explanations for its actions against you are pretextual (false), and that the agency has had bias against you from the start. If you are litigating an EEO complaint, the agency will undoubtedly try to stop you from conducting discovery regarding these “background” incidents, invoking Morgan, but you or your attorney should push for thorough discovery on past relevant, background incidents – which can be invaluable in meeting your burden to prove animus.
* 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.
The attorneys at Passman & Kaplan, P.C, are also the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to https://www.fedweek.com/pub/index.php