Here are two recent cases — both reversing summary judgment — that apply 29 C.F.R. § 1614.105(a)(1), which requires that an aggrieved federal employee “initiate contact with a[n agency EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.”
Culpepper v. Johanns, No. 07-3824 (8th Cir. Dec. 1, 2008): While the employee in this rehabilitation Act case made a timely written complaint (within 45 days of losing out on a promotion), she directed it not to the EEO Counselor but to the agency’s Office of Civil Rights. Is that good enough for government work? The Eighth Circuit, applying the EEOC’s interpretation of its own regulation, holds that it is: “the question is whether Culpepper’s letters to the Director of the USDA’s Office of Civil Rights in January 2005 and June 2006 satisfied the EEO counselor contact requirement even though she did not contact an EEO counselor. Applying the EEOC’s interpretation of § 1614.105(a) to the facts of this case, we hold that Culpepper’s letters (1) initiated contact with an agency official who is logically connected with the EEO process and (2) demonstrated Culpepper’s intent to begin the EEO process.”
Shiver v. Chertoff, No. 08-13024 (11th Cir. Nov. 26, 2008): This case establishes that the regulation means what it says by providing two accrual dates — the “date of the matter,” or for personnel actions “the effective date of the action.” The regulation also expressly provides for a discovery rule, i.e, the EEOC “shall extend the 45-day limit . . . when the individual shows . . . that he or she did not know and reasonably should not have  known that the . . . personnel action occurred.” 29 C.F.R. § 1614.105(a)(2). The regulation thus deviates from the common understanding in private-sector cases that the accrual date for discrete actions is always when the employee first learns about the adverse action (such as under Evans and Morgan).
Thus in this case, brought under the Rehabilitation Act, the employee intiated contact with the agency counselor more than 45 days after first learning about a demotion (Dec. 3, 2004) but within 45 days of when he first learned that the demotion became effective (Jan. 5, 2005). The Eleventh Circuit reverses summary judgment, and holds “the record demonstrates that Shiver contacted an EEO counselor within 45 days of January 5, 2005, which was the date that he learned that his demotion had become effective. Thus, we conclude that his administrative complaint was timely, and, therefore, the district court erred in finding that Shiver’s action was time-barred.”