In a recent United States District Court decision, the court denied the Government Printing Office's motion to dismiss and waived an employee's untimely EEO contact and filing of a formal EEO complaint. Hairston v. Tapella, Civil Action No. 08-1531 (DDC Oct. 21, 2009). The employee worked for five years in the press division of the GPO production department. On August 24, 2006, the employee applied for a promotion, and he was notified in September 2006 that he was selected for the position. However, on September 6, 2006, the GPO withdrew the posting before filling the position. On October 5, 2006, the employee contacted GPO's EEO office alleging he was denied the promotion because of his race (African-American). The employee claimed that an EEO counselor advised him to hold off on filing a formal complaint until he had more evidence of discrimination other than the non-promotion.
On October 13, 2006, the GPO re-posted the same vacancy announcement. The employee reapplied and on December 4, 2006, he was informed by the agency that he was qualified for the position. In January 2007, the employee learned he was not selected for the position, but he did not know whether any selection was made, or whether the position was left vacant. On March 19, 2007, the GPO hired a man (Caucasian) with no previous GPO experience to fill the position. However, the employee did not learn of this selection until June 14, 2007. Subsequently, on June 21, 2007, the employee returned to the EEO office alleging again that the GPO denied him a promotion because of his race. Shortly thereafter, the employee's first-line supervisor began retaliating against him by threatening disciplinary actions, making disparaging comments and engaging in unwanted bodily contact and degrading the employee in front of co-workers. On August 3, 2007, the employee filed a formal EEO complaint alleging race discrimination for the non-promotions, but he did not allege retaliation discrimination.
The employee filed his discrimination complaint in U.S. District Court, which is allowed if 180 days has elapsed since the federal employee filed a formal EEO complaint against the agency. 42 U.S.C. § 2000e-16(c). The GPO moved to dismiss the employee's complaint by asserting he failed to exhaust his administrative remedies by not seeking EEO counseling within 45 days of the alleged discriminatory and retaliatory acts and because the employee did not allege retaliation in his formal EEO complaint filed in August 2007.
The employee was required to contact an EEO counselor within 45 days of each non-promotion because each non-promotion constitutes an individual discriminatory act. 29 C.F.R. § 1614.105(a)(1). The employee's EEO contact relating to the first non-promotion was timely because he initiated EEO contact 29 days after the posting was cancelled. Likewise, the court held that the employee's contact with the EEO office on his second non-promotion was timely, even though he initiated contact more than 45 days after the person was selected for the position, because the time limit is extended if the employee can show he did not know and reasonably should have known that the discriminatory matter or personnel action occurred. 29 C.F.R. § 1614.105(a)(2). Here, the employee contacted the EEO office within a week of learning that a person was selected for the position. However, the employee did not file a formal EEO complaint within 15 days of receiving his formal notice of right to file after the first non-promotion, so he only met the deadline to file a formal discrimination complaint for his second non-promotion. Nonetheless, the court waived the deadline because the employee established that he reasonably relied on the EEO counselor's incorrect advice that he should wait to file a formal complaint until the employee had more evidence other than the non-promotion. Accordingly, the court did not dismiss either of the non-promotion claims.
Conversely, the court did dismiss the employee's retaliation claim because before filing a Title VII suit in U.S. court, a federal employee must timely pursue administrative remedies. 29 C.F.R. § 1614. Acts of alleged retaliation occurring after an EEO charge is filed does not require a separate exhaustion if the issues would have come within the scope of any investigation that reasonably could have been expected to result from the initial EEO charge. However, here, the employee did not attempt contact with the EEO office about his retaliation claim, and it would not have been within the scope of the investigation of the initial claim because the supervisor was not involved in the employee's non-promotions.
* 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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