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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0120091092
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091092