Making Initial Contact in Pursuing an EEO Claim
Initial contact with an EEO Counselor is a seemingly simple, but incredibly critical task to preserve appeal rights. This is the very first step in filing an EEO complaint and must be accomplished within forty-five days of the agency’s alleged act of discrimination or the effective date of the personnel action at issue. Failure to make this contact within the statutorily prescribed time-frame of forty-five days (see, 29 CFR 1614.105) will result in dismissal of the complaint, without regard to whether discrimination in fact occurred. While there are nuanced exceptions, for example in issues involving an ongoing hostile work environment claim or hospitalization of a complainant, the forty-five day time-limit is generally considered absolute.
As we previously covered in many of our articles, federal employee and labor relations processes are riddled with nuances. Federal EEOC Complaint processes are perhaps far worse in this regard. This issue is not confined to any single agency with even different processes at different facilities within the same agency. For example, we noticed absurdly incompetent EEO intake processing at Border Patrol facilities in Arizona and completely different, yet still absurd, intake processes at Border Patrol facilities in Michigan. This issue is prevalent throughout many agencies and recently, we encountered agency EEO Counselors trying to exploit these nuances when it comes to federal employees making initial contact to file an EEO complaint. The greatest example are EEO counselors simply refusing to return complainant calls and complainants actually giving up, or otherwise assuming they can no longer file a complaint since forty-five days had elapsed even though they were trying to contact the EEO counselor.
As many employees know, the EEOC has authority over the federal EEO complaint process. However, for practical reasons, the EEOC, through EEOC Directive MD-110, entrusts significant “upfront” authority to federal agencies in handling the intake portion (informal stage also known as pre-complaint counseling) through the Report of Investigation (ROI). Though many agencies generally subscribe to EEOC Directive MD-110, they all have their own nuances in initially processing claims; therefore, rarely do two different agencies handle intake using the same methods or processes. Often, internal agency regulations become confusing in this regard and when combined with less professional and less trained collateral duty agency EEO Counselors (just one example), even making the critically important required initial contact can become confusing to the complainant.
The Initial Contact
For a complainant, the absolute first step in the EEO complaint process is making initial contact with the agency. This initial contact can be physical, verbal, or electronic. For example, you can physically meet with a designated EEO Counselor, call the counselor, or e-mail the counselor within the prescribed forty-five day time limit. However, you may be called upon to prove such contact was made within forty-five days if the agency raises a claim concerning timeliness of first contact. Therefore it is imperative you use a method you can easily prove. We typically advise employees to use the agency e-mail system and be very clear in that communication. For example, we suggest wording similar to the following:
I am contacting you to file a complaint of discrimination and hostile work environment. I believe I have been discriminated against based on my age and gender relating to my suspension dated March 12, 2014, subsequent reassignment, and Hostile Work Environment. I wish to begin the informal EEO complaint process to receive EEO counseling and initiate the necessary paperwork to file an informal complaint in accordance with 29 CFR 1614.105. Please contact me as soon as possible regarding this matter.
The language provided above will clearly establish the required intent of your communication. You will just need to prove the communication was made. A fairly easy process if using internal agency e-mail systems or certified U.S. Mail.
There are also other methods of making the required initial contact. For example, in Marshall v. GPO, EEOC No. 0120073941 (EEOC OFO 2007), the EEOC held a complainant can meet the requirement if they contact an agency official “logically connected to the EEO process” and if they showed an “interest” in pursuing the process. It should be noted the e-mail method prescribed above would preserve the timeliness issue for months in the event the EEO counselor does not respond or otherwise claims they are too busy (see, Edwards v. Office of Personnel Management, 102 FEOR 1042 , EEOC No. 01A14366 (EEOC OFO 2001). However, despite these cases, it is important to note there are many other nuances associated with independent fact-drive situations. Therefore, always proceed with abundant caution and make that initial contact as early and clearly as possible.