In an unpublished decision, the U.S. Court of Appeals for the 11th Circuit held that an employee who sees a poster in the workplace providing information on how to file an EEO complaint is on constructive notice of the deadline for filing such a complaint. Gaillard v. Shinseki, No. 09-11949, 2009 WL 3287524 (11th Cir. 10/14/09). Henry Gaillard worked for the VA until his termination in March 2004. He contacted an EEO counselor on July 12, 2005, to file a complaint of discrimination related to his termination.
The Rehabilitation Act and Title VII of the Civil Rights Act require that a federal employee exhaust his administrative remedies in order to qualify for relief. He must make contact with a counselor within 45 days of the discriminatory incident or the effective date of the adverse personnel action. However, if the employee can show that he was not informed of this deadline and did not otherwise know about it, he may seek an extension of the 45-day limit.
When Gaillard’s case went before the district court, the VA moved for summary judgment, alleging that Gaillard’s claim of discrimination was time-barred because he failed to contact an EEO counselor within 45 days of his termination. The district court ruled in favor of the VA, finding that because Gaillard remembered having seen a poster at work showing how to file an EEO complaint, he was on constructive notice of the deadline. He had therefore failed to exhaust his administrative remedies. Gaillard appealed to the 11th Circuit.
The court of appeals reviewed the case and found that merely seeing the EEO poster that included the time limit for contacting an EEO counselor was indeed enough to put Gaillard on notice of the time limit for filing an EEO complaint, and therefore affirmed judgment in favor of the VA.
* 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 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/pubs/index.php This book has been selling for $49.95 plus s&h for over two years, but as a special offer to FEDweek readers, we’ve reduced the price to only $29.95 plus s&h.