Fedweek Legal

In Kapiko v. Department of the Air Force, 2006 WL 1584004 (2006), the EEOC permitted a rare extension of the 45-day period to initiate an EEO complaint, i.e. to seek “counseling.” The complainant, an Air Force employee, attempted to initiate EEO contact on several occasions during a three-week period but the EEO counselor was absent and the EEO office closed. By the time contact was initiated, the 45-day period had passed, and the agency denied the complaint as untimely. The Commission, however, reversed the agency’s dismissal and permitted an extended filing period.


In March 2004, the complainant was suspended for five days from his duties as an Air Force employee. The complainant contended that his suspension was the result of discrimination based on his race and national origin and in retaliation for his past EEO activity. After efforts to resolve his concerns were unsuccessful, the complainant proceeded to the EEO office to initiate a complaint. For the next three weeks, the complainant asserted that he stopped by the EEO office, but “the office was closed.” Eventually, on May 11, 2004, the complainant was able to contact an EEO counselor and file a complaint. In June 2004, the agency dismissed the complaint on the grounds that it was untimely. The agency opined that the complaint was filed 50 days after the alleged discriminatory conduct, while EEOC regulations require that complaints be filed within 45 days of the discriminatory conduct.

On appeal to the Commission, the complainant argued that he shouldn’t be punished for filing five days past the deadline because, on several occasion, he attempted to contact the EEO office but it was closed. On the other hand, the agency contended that, even though its EEO counselor was absent during 19 days of the complainant’s 45-day period, he should have made other reasonable efforts to initiate contact through other means such as mail, email, fax, or telephone.

The Commission disagreed with the agency, finding that the complainant provided adequate justification for filing outside the 45-day period. Pursuant to 29 C.F.R. § 1614.105(a)(2), the agency or Commission is permitted to extend the 45-day filing period for circumstances beyond the complainant’s control, or for “other reasons considered sufficient.” Therefore, based on the extended absence of the EEO counselor and lack of agency evidence supporting other available methods to initiate EEO contact, the Commission found the complainant had adequately justified an extension of the 45-day period.

The above case is a rare exception to the bright line rule which only permits EEO complaints to be filed within 45-days of the discriminatory conduct. In this case, the Commission easily could have found that the complainant should have initiated contact by other reasonable means such as email or voicemail. Fortunately for the employee, the extension was permitted and his complaint will be investigated. However, to say this was a complete victory for the complainant may be an overstatement. Resolution of this issue has taken nearly two years, thereby, pushing back the investigation of his complaint. To ensure prompt investigation and resolution of EEO complaints, federal employees are urged to file complaints well before the 45-day deadline to prevent unforeseen 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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