Applicants and Former Federal Employees have “Standing” to File
A common question we receive is whether a former employee or an applicant for employment can file an EEO complaint. The short answer is yes. As noticed by the EEOC, “If you are a federal employee or job applicant, the law protects you from discrimination because of your race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. The law also protects you from retaliation if you oppose employment discrimination, file a complaint of discrimination, or participate in the EEO complaint process (even if the complaint is not yours.)” What the EEOC does not explicitly state is that former employees, for example an employee who resigned, also have the ability to file a complaint for up to forty-five days after leaving their positions. This scenario often arises in claims of constructive discharge (retirement or resignation) and removals. In this case, the complainant has forty-five days from the effective date of the action to make initial contact with the agency. We previously posted information about the initial contact but are including pertinent parts below as they still apply.
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.