29 C.F.R. § 1614.105

Pre-complaint processing

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(a) Aggrieved persons who believe they have been discriminated against on the basis of race; color; religion; sex; national origin; age; disability; genetic information; or pregnancy, childbirth, or related medical conditions must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.

(1) An aggrieved person must initiate contact with a 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.

(2) The agency or the Commission shall extend the 45-day time limit in paragraph (a)(1) of this section when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.

(b)(1) At the initial counseling session, Counselors must advise individuals in writing of their rights and responsibilities, including the right to request a hearing or an immediate final decision after an investigation by the agency in accordance with § 1614.108(f), election rights pursuant to §§ 1614.301 and 1614.302, the right to file a notice of intent to sue pursuant to § 1614.201(a) and a lawsuit under the ADEA instead of an administrative complaint of age discrimination under this part, the duty to mitigate damages, administrative and court time frames, and that only the claims raised in precomplaint counseling (or issues or claims like or related to issues or claims raised in pre-complaint counseling) may be alleged in a subsequent complaint filed with the agency. Counselors must advise individuals of their duty to keep the agency and Commission informed of their current address and to serve copies of appeal papers on the agency. The notice required by paragraphs (d) or (e) of this section shall include a notice of the right to file a class complaint. If the aggrieved person informs the Counselor that he or she wishes to file a class complaint, the Counselor shall explain the class complaint procedures and the responsibilities of a class agent.

(2) Counselors shall advise aggrieved persons that, where the agency agrees to offer ADR in the particular case, they may choose between participation in the alternative dispute resolution program and the counseling activities provided for in paragraph (c) of this section.

(c) Counselors shall conduct counseling activities in accordance with instructions contained in Commission Management Directives. When advised that a complaint has been filed by an aggrieved person, the Counselor shall submit a written report within 15 days to the agency office that has been designated to accept complaints and the aggrieved person concerning the issues discussed and actions taken during counseling.

(d) Unless the aggrieved person agrees to a longer counseling period under paragraph (e) of this section, or the aggrieved person chooses an alternative dispute resolution procedure in accordance with paragraph (b)(2) of this section, the Counselor shall conduct the final interview with the aggrieved person within 30 days of the date the aggrieved person contacted the agency's EEO office to request counseling. If the matter has not been resolved, the aggrieved person shall be informed in writing by the Counselor, not later than the thirtieth day after contacting the Counselor, of the right to file a discrimination complaint. The notice shall inform the complainant of the right to file a discrimination complaint within 15 days of receipt of the notice, of the appropriate official with whom to file a complaint and of the complainant's duty to assure that the agency is informed immediately if the complainant retains counsel or a representative.

(e) Prior to the end of the 30-day period, the aggrieved person may agree in writing with the agency to postpone the final interview and extend the counseling period for an additional period of no more than 60 days. If the matter has not been resolved before the conclusion of the agreed extension, the notice described in paragraph (d) of this section shall be issued.

(f) Where the aggrieved person chooses to participate in an alternative dispute resolution procedure in accordance with paragraph (b)(2) of this section, the pre-complaint processing period shall be 90 days. If the claim has not been resolved before the 90th day, the notice described in paragraph (d) of this section shall be issued.

(g) The Counselor shall not attempt in any way to restrain the aggrieved person from filing a complaint. The Counselor shall not reveal the identity of an aggrieved person who consulted the Counselor, except when authorized to do so by the aggrieved person, or until the agency has received a discrimination complaint under this part from that person involving that same matter.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37656, July 12, 1999; 74 FR 63984, Dec. 7, 2009; 89 FR 11171, Feb. 14, 2024]

Notes of Decisions

Cited in 1,619 cases (460 in the last 5 years), 1994–2026 · leading case: Green v. Brennan, 136 S. Ct. 1769 (2016).

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Green v. Brennan, 136 S. Ct. 1769 (2016). · cites it 15× “” 29 CFR §1614.105 (a)(1) (2015). If an employee claims he has been fired for discrimina- tory reasons, the “matter alleged to be discriminatory” includes the discharge itself and the 45-day limitations period begins running only after the employee is fired.”

Lisa L. Fitzgerald v. William Henderson, Postmaster Gen., United States Postal Serv., 251 F.3d 345 (2d Cir. 2001). · cites it 11× “§ 2000e-16 and 29 C.F.R. § 1614.105 (2000), which deal with employment discrimination claims by federal employees, Fitzgerald contacted a Postal Service Equal Employment Opportunity (“EEO”) Counselor in the USPS Human Resources Division (“HRD”) to complain of Gerling’s conduct.”

Hickey v. Brennan, 969 F.3d 1113 (10th Cir. 2020). · cites it 9× “Defendant sought summary judgment based on Hickey’s failure properly to exhaust her administrative remedies before the EEO, as she had failed to contact an EEO counselor within forty-five days of the adverse personnel action as required by 29 C.F.R. § 1614.105 (a). In response,…”

Jessie Johnson v. Marvin T. Runyon, Postmaster Gen. & U.S. Postal Serv., 47 F.3d 911 (7th Cir. 1995). · cites it 20× “See 29 C.F.R. § 1614.105 (a)(1). The district court concluded that Johnson failed to establish any justification, either equitable or embodied in the regulations, for the tolling of the forty-five day limitations period.”

Kathy J. Smith v. John E. Potter, Postmaster Gen. of the United States, 445 F.3d 1000 (7th Cir. 2006). · cites it 12× “See 29 C.F.R. § 1614.105 (a)(1). In support of its decision, the EEO cited the fact that Smith was “or should have been aware of the time limit for contacting an EEO Counselor, as posters, including the 45-day time limit were clearly on display at the post office where [she] had…”

Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039 (9th Cir. 2009). · cites it 10× “4 With respect to these claims, the district court held that Kraus had failed to contact an EEO counselor within 45 days of the alleged discrimination as required by 29 C.F.R. § 1614.105 (a)(1), and so the claims were unexhausted and had to be dismissed.”

Wendell Lyons Donald Tate Robert L. Claiborne Rosevelt Willson v. Gordon R. England, Sec'y of the Navy, 307 F.3d 1092 (9th Cir. 2002). · cites it 6× “The court ruled that appellee could not be held liable either for the discriminatory allocation of work assignments occurring outside of the 45-day limitations period in which federal employees must contact an Equal Employment Opportunity (“EEO”) counselor regarding their…”

Coulibaly v. Kerry, 213 F. Supp. 3d 93 (D.D.C. 2016). · cites it 7× “See 29 C.F.R. § 1614.105 (a)(1); accord Greer v.”

Vasser v. Shinseki, 228 F. Supp. 3d 1 (D.D.C. 2016). · cites it 5× “See 29 C.F.R. § 1614.105 (a)(1). If the parties are unable to resolve the issue informally, the aggrieved person may file a formal administrative complaint within 15 days of receiving notice of her right to do so from the EEO counselor.”

Joey L. Mitchell v. Glenn Chapman, 343 F.3d 811 (6th Cir. 2003). · cites it 5× “) *817 The USPS dismissed as untimely Mitchell’s EEO Complaint, determining that Mitchell initiated contact with an EEO counselor beyond the forty-five day period provided in 29 C.F.R. 1614.105. (J.A., 12, 26, 45, 48-51.”

Achagzai v. Broad. Bd. of Governors, 170 F. Supp. 3d 164 (D.D.C. 2016). · cites it 4× “29 C.F.R. § 1614.105 (a)(1); see also In re James, 444 F.”

Wilkie v. Dep't of Health & Human Servs., 638 F.3d 944 (8th Cir. 2011). · cites it 6× “(quoting 29 C.F.R. § 1614.105 (a)). The employee “ ‘must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory.”

Show all 1,619 citing cases →

— 29 C.F.R. § 1614.105(a) — 12 cases

Lisa L. Fitzgerald v. William Henderson, Postmaster Gen., United States Postal Serv., 251 F.3d 345 (2d Cir. 2001). “§ 2000e-16 and 29 C.F.R. § 1614.105 (2000), which deal with employment discrimination claims by federal employees, Fitzgerald contacted a Postal Service Equal Employment Opportunity (“EEO”) Counselor in the USPS Human Resources Division (“HRD”) to complain of Gerling’s conduct.”

Klute v. Shinseki, 797 F. Supp. 2d 12 (D.D.C. 2011).

Weber v. Hurtgen, 297 F. Supp. 2d 58 (D.D.C. 2003).

William Pauling, Michelle Gillyard & Anthony Washington v. Sec'y of the Dep't of the Interior, 160 F.3d 133 (2d Cir. 1998).

Houser v. McDonald, 264 F. Supp. 3d 17 (D.D.C. 2017).

— 29 C.F.R. § 1614.105(a)(1) — 33 cases

Khoury v. Meserve, 268 F. Supp. 2d 600 (D. Maryland 2003).

Moret v. Harvey, 381 F. Supp. 2d 458 (D. Maryland 2005).

MacK v. Strauss, 134 F. Supp. 2d 103 (D.D.C. 2001).

Blount v. Thompson, 400 F. Supp. 2d 838 (D. Maryland 2004).

— 29 C.F.R. § 1614.105(a)(2) — 7 cases

Teemac v. Henderson, 298 F.3d 452 (5th Cir. 2002).

Glenn Harris v. Postmaster Gen. of the US (3rd Cir. 2022).

Gail Boos v. Marvin Runyon, 201 F.3d 178 (2d Cir. 2000).

Richard H. Nash, IV v. Pamela J. Bondi, Attorney Gen. of the United States (N.D. Ill. 2026).

— 29 C.F.R. § 1614.105(a)(2)(2003) — 1 case

Lebron-Rios v. U.S. Marshal Serv., 307 F. Supp. 2d 335 (D.P.R. 2004).

— 29 C.F.R. § 1614.105(a)(l)(2003) — 1 case

Lebron-Rios v. U.S. Marshal Serv., 307 F. Supp. 2d 335 (D.P.R. 2004).

— 29 C.F.R. § 1614.105(d) — 1 case

Donovan v. Postmaster Gen., 36 F. App'x 496 (3rd Cir. 2002).

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