01976228_r
02-17-1999
Suwich Sanwong, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Suwich Sanwong, )
Appellant, )
)
v. ) Appeal No. 01976228
) Agency No. P-640-183
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
The record discloses that appellant filed two prior EEO complaints in 1992
and 1994, in which final decisions (FADs) finding no discrimination were
issued by the agency after hearings before an EEOC Administrative Judge.
Appellant alleged that following these EEO complaints the agency assigned
him to unwanted duties and failed to adequately provide him nursing
and clerical support, thus setting him up to fail. On August 1, 1996,
appellant was issued a proposed discharge letter for his failure to keep
up with the duties assigned him. Appellant was hospitalized the same
day and diagnosed with unstable angina and hypertension, resulting in
his inability to return to work for approximately two months. Upon his
return on October 4, 1996, appellant was issued a letter terminating his
employment effective October 9, 1996. On November 4, 1996, appellant
initiated contact with an EEO Counselor concerning the instant complaint.
On August 5, 1997, appellant filed a timely appeal with this Commission
from a FAD received by him on July 29, 1997, pertaining to his complaint
of unlawful employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq., and �501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq. In his complaint, appellant alleged that
he was subjected to discrimination on the bases of race (Asian), color
(non-White), sex (male), national origin (Thailand), age (DOB 1/8/48),
mental disability (stress), physical disability (chest pain, hypertension
and Tachycardia), and in reprisal for prior EEO activity when:
On October 9, 1996, appellant was terminated from his position of Staff
Physician; and
From 1990 through 1996, appellant was subjected to ongoing harassment
in the form of duties to which he was assigned and the conditions under
which he had to work.
With regard to allegation (2), appellant identified numerous instances
of conduct in a 30-page memorandum to the EEO Counselor outlining the
incidents which contributed to an alleged hostile work environment.
Among the numerous actions contained in the memorandum was the agency's
failure to reasonably accommodate appellant after he discussed his
physical and mental disabilities with one of his supervisors around
February 1996. Appellant asserted that instead of being provided
accommodation, he was issued a letter threatening him with discipline
if he did not follow orders.
On July 23, 1997, the agency issued a FAD accepting allegation (1) for
investigation and dismissing allegation (2) pursuant to EEOC Regulation
29 U.S.C. �1614.107(b), for failure to initiate contact with an EEO
Counselor in a timely manner. Specifically, the agency determined that
appellant's November 4, 1996 initial EEO Counselor contact occurred
more than forty-five days from the events identified in allegation (2),
and was, therefore, untimely.
On appeal, appellant contends that the events identified in allegation
(2) were directly related to his termination and should therefore be
considered timely under the continuing violation theory. Additionally,
appellant asserts that he timely raised his allegations of discrimination
with his supervisors, thereby putting the agency on notice of the
actions giving rise to the instant complaint. As those supervisors
failed to advise appellant to seek EEO counseling, appellant argues that
this contact should qualify as initial EEO Counselor contact for the
purposes of the EEOC regulations. Finally, appellant contends that his
allegation concerning the agency's failure to reasonably accommodate
his disabilities was recurring in nature and therefore fell within
the forty-five day period prior to his initial EEO Counselor contact.
Accordingly, appellant argues that it should be considered timely.
In response, the agency argues that appellant suspected, or reasonably
should have suspected that the actions were discriminatory at the times
they occurred, because appellant filed two other EEO complaints in the
same time period.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. The Commission has adopted a "reasonable suspicion" standard
(as opposed to a "supportive facts" standard) to determine when the
forty-five (45) day limitation period is triggered. See Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
In this case the record discloses that appellant initiated contact
with an EEO Counselor more than forty-five days from the dates on which
the majority of the alleged incidents of harassment occurred. We are
not persuaded by appellant's argument that his discussions with his
supervisors should qualify as initial EEO Counselor contact because the
record shows that appellant was aware of the proper procedures for filing
an EEO complaint, having done so on two prior occasions. However, we note
that appellant alleged that the agency failed to reasonably accommodate
him after he discussed his disabilities with a supervisor in February
1996. The Commission has stated that an agency's failure to provide the
accommodation begins when the appellant first put the agency on notice
of his need for an accommodation and each day that the agency fails to
provide an accommodation constitutes a recurring violation. See Mitchell
v. Department of Commerce, EEOC Request No. 01934120 (March 4, 1994).
Accordingly, we find that appellant's allegation that the agency failed
to reasonably accommodate his disabilities was timely raised.
The Commission has also held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal
Service, EEOC Appeal No. 01890412 (April 6, 1989).
A determination of whether a series of discrete acts constitutes
a continuing violation depends on the interrelatedness of the past
and present acts. Berry v. Board of Supervisors, 715 F.2d 971, 981
(5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). It is necessary to
determine whether the acts are interrelated by a common nexus or theme.
See Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308
(June 13, 1989); Verkennes v. Department of Defense, EEOC Request
No. 05900700 (September 21, 1990); Maldonado v. Department of the
Interior, EEOC Request No. 05900937 (October 31, 1990). Should such
a nexus exist, appellant will have established a continuing violation
and the agency would be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered
an employee's awareness and duty to assert his or her rights; and,
whether the same agency officials were involved. Woljan v. Environmental
Protection Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge. Jackson
v. Department of the Air Force, EEOC Request No. 05950780 (June 27, 1997).
In the present case, we find that appellant failed to establish a
continuing violation with respect to the untimely portions of allegation
(2). Although the incidents which created the alleged hostile work
environment appear to be factually related to appellant's eventual
termination, we find that appellant had, or reasonably should have had a
reasonable suspicion of discrimination at the time he was subjected to the
identified actions. In 1992 and again in 1994 appellant suspected that
he was the victim of discrimination and sought counseling on the matters.
We find no justification for appellant's failure to initiate counseling
again when confronted with the additional alleged discriminatory actions.
Based on the foregoing, except for the allegation concerning appellant's
reasonable accommodation request, we find that the agency properly
dismissed allegation (2) for untimely EEO Counselor contact.
Accordingly, the agency's decision to dismiss the portions of allegation
(2) which do not concern reasonable accommodation is AFFIRMED for the
reasons set forth herein. The agency's decision to dismiss the allegation
concerning the agency's failure to provide reasonable accommodation was
improper, and is hereby REVERSED. The allegation concerning the failure
to provide reasonable accommodation is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action.
The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled �Right to File
A Civil Action.� 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT
IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Feb. 17, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations