Employee Who Knew He Was Wrongly Treated as a Probationary Employee During His Termination Failed to Justify Untimely EEO Contact, EEOC Rules

An employee who knew he was wrongly treated as a probationary employee instead of a career employee during his termination failed to justify his untimely EEO contact, the U.S. Equal Employment Opportunity Commission (EEOC) ruled earlier this month.

In this case, a former Custom Inspector at the Blaine Port of Entry facility in Blaine, Washington, was removed from Agency employment during his probationary period on October 8, 2003, due to his job performance. On March 28, 2010, the Custom Inspector contacted an Agency's EEO Counselor alleging that the Agency subjected him to discrimination on the basis of race (African-American) when, on October 8, 2003, he was removed from his employment through the improper use of removal procedures that were applicable only to probationary employees. The Custom Inspector claimed that on March 28, 2010, he first learned that his prior federal service was not properly credited toward his probationary period. He stated that he was not given proper due process when he was terminated, because he was treated as a probationary employee, and not as a career federal employee.

In its final decision, the Agency dismissed the complaint on the grounds of untimely EEO Counselor contact. The Agency determined that the Custom Inspector's initial EEO contact was on March 28, 2010, approximately six and one-half years after his removal from federal service. The Agency further determined that he was aware of the EEO time frames since he had prior EEO activity related to his termination from employment. Agency also determined that the Custom Inspector's justification for delaying the EEO Counselor contact - that he didn't learn until March 28, 2010, that his service was not computed properly - was inadequate to waive the applicable time limits. The Custom Inspector then appealed the Agency's action to the EEOC.

In its decision earlier this month, the EEOC explained that the pertinent regulations provide that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory. The regulations also state that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.

Here, the EEOC stated, the record showed that the Custom Inspector was aware of his removal and the 45-day time limit to initiate EEO Counselor contact. It was undisputed that he was removed from the Agency on or about October 8, 2003. The record further established that the Custom Inspector also raised the instant issue with the U.S. Merit Systems Protection Board (MSPB) in 2003, where he specifically claimed that he was not a probationary employee. Therefore, the EEOC found, the Custom Inspector was aware in 2003 that his service was not computed properly, and that he was wrongly treated as a probationary employee instead of a career employee during his termination.

Accordingly, the EEOC ruled that the Custom Inspector failed to present adequate justification for extending the 45-day deadline, and that the Agency's dismissal on the grounds of untimely EEO Counselor contact was proper.

The case is Fuller v. Napolitano, U.S. Equal Employment Opportunity Commission, EEOC DOC 0120102811, January 5, 2012.

Posted in Case Law Update

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