Donna M. Chavez-Dutra, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJun 3, 2009
0120091092 (E.E.O.C. Jun. 3, 2009)

0120091092

06-03-2009

Donna M. Chavez-Dutra, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Donna M. Chavez-Dutra,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120091092

Agency No. 200P06532008103076

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated November 5, 2008, dismissing her complaint of unlawful

employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the

untimely filing of the formal complaint.

In her complaint, complainant alleged that she was subjected to

discrimination on the bases of national origin (Mexican) and reprisal

for prior protected EEO activity under Title VII when:

1) on July 11, 2008, she was notified that she was not selected for the

position of registered nurse for the Home Based Primary Care Program

located at the Eugene Veterans' Clinic;

2) on July 10, 2008, it was a conflict of interest for the nurse manager

to sit as a member of the selection panel when she was interviewed for

the position of registered nurse for the Home Based Primary Care Program

located at the Eugene Veterans' Clinic;

3) during her July 10, 2008 interview, she was asked additional questions

that were not part of the questionnaire and were not asked of all

applicants;

4) on July 3, 2008 she received a suspension notice, effective July 14

through July 27, 2008, for a patient related incident;

5) on May 29, 2008, she was reported to the Oregon State Board of Nursing

(OSBN) for alleged misconduct and the nursing supervisor submitted

the report to the Board without prior authorization from the facility

director or from the director of Human Resource Management Service;

6) on May 14, 2008, she was denied the benefit of a representative during

management's questioning of a patient related incident;

7) on May 7, 2008, she was issued a proposed 30-day suspension;

8) on May 8, 2008, management recommended her demotion from Nurse II to

Nurse I;

9) on March 11, 2008, she was questioned for over an hour regarding a

patient related incident without the benefit of representation;

10) on February 26, 2008, management questioned her without the benefit

of union representation;

11) on January 30, 2008, she was denied her rights to utilize leave under

the Family Care Leave Act which forced her to take leave without pay;

and

12) on September 25, 2007, she was reprimanded, accused of falsifying

records and lying when she attempted to explain a patient encounter to

management.

The record discloses that complainant received the notice of right

to file a formal complaint on August 13, 2008.1 Although the notice

indicated that complainant had to file a formal complaint within fifteen

(15) calendar days of its receipt, complainant did not file her formal

complaint until September 9, 2008, which is beyond the limitation period.

On appeal, complainant has not offered adequate justification to warrant

an extension of the time limit for filing the complaint. Accordingly, the

agency's final decision dismissing complainant's complaint is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the

policies, practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. In the absence of a legible postmark, the request

to reconsider shall be deemed timely filed if it is received by mail

within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party. Failure to file within the time

period will result in dismissal of your request for reconsideration

as untimely, unless extenuating circumstances prevented the timely

filing of the request. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)

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. 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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

June 3, 2009

__________________

Date

1 The record contains a FedEx Tracking Statement verifying that delivery

was made at complainant's home address. This tracking statement shows

that complainant had a signature release on file at the time of delivery.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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