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Agency Misinformation on Deadlines

On September 21, 2010, the Equal Employment Opportunity Commission’s Office of Federal Operations (“OFO”) issued its decision in Wilson v. Department of Veterans Affairs, EEOC Appeal No. 0120102211. OFO reversed the agency’s dismissal of Wilson’s complaint for failure to meet a filing deadline, finding that agency misinformation on the deadline caused Wilson to miss it.

Wilson, a probationary employee with alleged disabilities, was removed in December 2009 during her probationary period. Wilson sought informal EEO counseling on her termination and on various disability discrimination claims, and also appealed her removal to the Merit Systems Protection Board in December 2009. On January 7, 2010, Wilson received a notice of right to file a discrimination complaint, requiring her to file a formal discrimination complaint within 15 calendar days (by January 22, 2010). This notice asserted that if Wilson was complaining about a matter appealable to the MSPB, she could file an MSPB appeal or a formal EEO complaint, but not both.

Wilson contacted the agency’s EEO office the next day by email to ask whether her pending MSPB appeal would preclude filing a formal complaint of discrimination. Three days later, the agency EEO counselor responded, advising Wilson in writing that Wilson’s MSPB appeal prohibited Wilson from filing a formal EEO complaint. The next day (January 12, 2010), after consulting with an attorney experienced in MSPB matters, Wilson advised the EEO counselor that the MSPB lacked jurisdiction over Wilson’s appeal due to her probationary status. In that same email to the EEO counselor, Wilson expressed her desire to pursue her formal EEO complaint and requested instructions from the EEO counselor as to how to initiate the formal complaint process.

In response on January 13, 2010, the EEO counselor agreed that the MSPB would likely dismiss Wilson’s appeal. The EEO counselor further erroneously advised Wilson that the MSPB appeal constituted a procedural election which would cause the agency to dismiss any formal EEO complaint from Wilson. The EEO counselor advised Wilson to wait until after the MSPB issued its decision before filing her formal EEO complaint. The EEO counselor further represented that the agency would have to accept Wilson’s formal EEO complaint once the MSPB had made its determination. Wilson requested to withdraw her MSPB appeal on January 14, 2010. The MSPB dismissed Wilson’s complaint by initial decision dated January 20, 2010. Wilson filed her formal EEO complaint on January 25, 2010. In response, the agency dismissed Wilson’s formal EEO complaint as untimely filed beyond the 15 calendar day deadline. Wilson appealed the dismissal to OFO.

On appeal, OFO reversed the agency’s dismissal of Wilson’s formal EEO complaint. OFO concluded that Wilson had relied upon the written instructions of the agency’s EEO counselor, justifying extension of the 15-day deadline for filing the formal EEO complaint. OFO noted that although employee withdrawals of MSPB appeals generally do not negate the employee’s procedural election of the MSPB process, that restriction does not apply in situations where the dismissal is for lack of MSPB jurisdiction. OFO therefore remanded Wilson’s complaint to the agency for a formal EEO investigation.