Geneva Smith-Johnson, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 22, 2004
01A44197_r (E.E.O.C. Nov. 22, 2004)

01A44197_r

11-22-2004

Geneva Smith-Johnson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Geneva Smith-Johnson v. Department of Veterans Affairs

01A44197

November 22, 2004

.

Geneva Smith-Johnson,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A44197

Agency No. 200H-0528-2004101600

DECISION

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

decision dated April 27, 2004, 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.

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. The agency defined complainant's complaint as

alleging that:

Complainant was discriminated against on the bases of race

(African-American), sex (female), color (black), age (D.O.B. 9/9/55),

and reprisal for prior EEO activity when:

On February 19, 2004, complainant's supervisor (Person A) sent an

electronic mail message that the performance standards of the Medical

Records Coder, GS-675, position which complainant believed would impact

the charts she would be required to code per day and lead to the eventual

downgrading of her position.

Complainant was subjected to discrimination on the bases of sex, age

and in reprisal for prior EEO activity when:

On February 9, 2004, complainant's supervisor upgraded a male file room

supervisor from GS-7 to GS-9 with intentions of upgrading him to GS-11.

Complainant was subjected to discrimination on the bases of race, color,

age, and in reprisal for prior EEO activity when:

From August 20, 1999, through May 23, 2000, complainant was not

compensated for work performed as the Acting Chief of Health Information

Management Service (HIMS).

Complainant was discriminated against on the bases of race, color, age,

and in reprisal for prior EEO activity when:

On January 22, 2004, complainant received the Registry for Ionizing

Radiation dated, December 29, 2003.

On January 23, 2004, complainant was informed by Person B that it was

her belief that her position was not classified properly.

On January 23, 2004, complainant was informed by Person C that the

inpatient coders would eventually be doing outpatient coding.

On February 3, 2004, complainant was informed by Person D that she was

required to provide Person D with daily productivity reports.

On February 4, 2004, complainant became aware that the working

conditions for coders were going to be changed but the union, SEIU,

had not bargained over the change.

On February 9, 2004, complainant's supervisor (Person E) proposed that

the coding she is responsible for producing would increase form 60%

to 100%.

On February 10, 2004, complainant was not given the opportunity to be

a member on an interview panel for a Medical Records Technician position.

On February 18, 2004, complainant forwarded an electronic mail message

to staff members informing them of who coding requests were to be

forwarded to.

The agency dismissed issue D(1-8) pursuant to the regulation set forth

at 29 C.F.R. � 1614.107(a)(2), for failure to bring these claims to

the attention of an EEO counselor and for not being like or related

to the issues raised with the EEO counselor. The agency found that

these incidents identified would not be expected to �grow out of� the

original complaint regarding: ( a) the receipt of Medical Records Coder

position performance standards; (b) the upgrade of a male supervisor;

or (c) pay administration. Additionally, the agency dismissed issue C

for failure to timely raise this issue with an EEO counselor. The agency

noted that the alleged incident occurred between August 20, 1999, and May

23, 2000; however, complainant failed to initiate EEO counselor contact

until February11, 2004. The agency found that complainant failed to

present a sufficient reason for waiving the 45-calendar day time limit

for contacting a counselor. The agency also found that a sufficient period

of time has elapsed to trigger the doctrine of laches with regard to this

allegation. Finally, the agency dismissed issues A and B pursuant to the

regulation set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state

a claim. The agency stated that while her supervisor might have given

her performance standards for a position other than her own, which the

complainant believes was done with the intention of changing her position

and downgrading her, this has not occurred yet. Additionally, with regard

to the promotion issue, the agency stated that if complainant is alleging

that management non-competitively promoted a male supervisor while not

offering her the same opportunity, this issue was raised in a previous

complaint under Agency No. 200H-0528-2003103624. The agency noted that

the previous complaint was accepted for investigation on December 19,

2003, and is currently pending a hearing before an Administrative Judge.

On appeal, complainant states that she initiated EEO counselor contact

with regard to the present complaint on February 11, 2004, with regard

to the following issues: (1) her supervisor was engaged in an initiative

to downgrade her position description by changing her duties, series,

and critical elements; (2) the male file room supervisor was upgraded

while complainant was not; and (3) complainant was not compensated for

her work as Acting Chief of Health Information Management Service between

August 20, 1999, and May 23, 2000. On appeal complainant states that the

February 4, 2004 issue should be deleted. Complainant states on appeal

that in her March 9, 2004 formal complaint she listed additional dates,

referenced by the agency as issue D comprising the following issues:

On January 22, 2004, complainant discovered that the registries for her

job had been changed by her supervisor on December 29, 2003, past the

date for making corrections to the registry. As a result, complainant

was forced to update the registries after the close-out date of January

19, 2004, thereby negatively impacting her performance and potentially

causing loss of revenue to the agency;

On February 23, 2004, Person A forwarded a �mailman� message from the

Lead Medical Record Technician, Person D, to complainant, indicating

that Person D would be monitoring coding activity and as a result

all coders were required to submit daily coding activity sheets.

Complainant stated that she is not a coder 675 but she is a Medical

Records Administration Specialist 669 and noted that other 669 workers

were not given coding productivity sheets to fill out and submit;

On February 10, 2004, Person D and Person A interviewed coder 675

applicants, while complainant, an MRA, was supposed to interview coders,

not MRTs, such as Person D;

On February 18, 2004, the HIMS Coding Contact sheet for Accounts

Receivable (A/R) and Billing Clerks was published. This list indicated

that A/R and Billing Clerks are to contact directly Person D (a 675)

for Buffalo Emergency Room and Ambulatory Surgery coding issues,

Person F (a 669) for Buffalo/Batavia HCC coding issues, and Person G

(a 675) for Inpatient Personnel Fee coding issues. With respect to

complainant, however, the list indicates that A/R and Billing Clerks

are to cc Person A as well as contact complainant for Buffalo/Batavia

Clinic and Outpatient Visit issues.

Complainant contends that the agency improperly dismissed her complaint.

Specifically, she states that the allegations raised in claim D

were reasonably related to a matter raised with the EEO counselor.

Complainant states that the essence of her claim is that the agency has

singled her out for downgrading to a Coder (a Medical Records Technician,

675 series) but has not done so to a younger, Caucasian Medical Record

Administration Specialists (MRAs, 669 series). Complainant states

that allegations under claim D were like or related to the issues

regarding discriminatory/ retaliatory assignment/change of duties and

the upgrading of a male coworker. Additionally, complainant contends

that the incidents raised in claim D were raised in a timely manner with

the EEO counselor and she provides a copy of electronic mail messages to

support her contention. Finally, complainant contends that the agency's

actions constitute discriminatory harassment and she argues that her

performance has suffered as a result of this harassment.

In opposition to complainant's appeal, the agency notes that on appeal

complainant is claiming that management singled her position out for

downgrading and that allegation D is like or related to claims A and

B in that they together demonstrate management's efforts to downgrade

her position. The agency states, however, it has not taken any steps

(official or otherwise) to downgrade her position and thus argues that

complainant fails to state a claim. Additionally, the agency states that

complainant's position appears to be peremptory in nature and should be

dismissed as preliminary steps to take a personnel action. The agency

notes that for the first time on appeal complainant claims that she was

subject to a hostile work environment. The agency argues that issues A,

B, C and D are insufficiently severe or pervasive to state a claim of

a hostile work environment and thus, fail to state a claim.

Upon review, we find that the agency properly dismissed issue A for

failure to state a claim. We note that complainant failed to show

that she suffered a harm or loss to a term, condition or privilege of

employment with regard to issue A.

With regard to issue B, we find that the agency properly dismissed this

issue for raising the same claim that is pending before or previously

has been decided by the agency or Commission. The record reveals that

complainant previously filed Agency Case No. 200H-0528-2003103624 in which

she alleged, inter alia, that she was subjected to discrimination when

management would not non-competitively upgrade her position to that of

a GS-11. The record reveals that this issue was accepted for processing

by the agency. Thus, we find that as issue B in the present case was

raised in a previous EEO complaint, the agency properly dismissed this

issue pursuant to 29 C.F.R. � 1614.107(a)(1).

Additionally, we find that issue C was properly dismissed. In issue C,

complainant claims that from August 20, 1999, through May 23, 2000,

she was not compensated for work performed as the Acting Chief of

Health Information Management Service (HIMS). The record reveals that

complainant did not initiate EEO counselor contact with regard to this

issue until February 11, 2004. On appeal, complainant has failed to

present adequate justification to warrant waiver of the applicable

limitations period. Therefore, we find that issue C was properly

dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO

Counselor contact.

Finally, we will address the agency's dismissal of issue D. At the

outset, we note that in both her April 22, 2004 response to the agency's

Second Request for Additional Information and on appeal complainant

identifies only four incidents as part of issue D. Specifically,

complainant states that issue D comprises of: (1) a January 22, 2004

discovery that the registries for her job had been changed by Person A on

December 29, 2003; (2) on February 3, 2004, Person A forwarded a �Mailman�

message from Person D, to complainant, indicating that Person D would be

monitoring coding activity and as a result all coders were required to

submit daily coding activity sheets; (3) on February 10, 2004, Person

D and Person A interviewed coder 675 applicants, while complainant,

an MRA, was supposed to interview coders, not MRTs, such as Person D;

and (4) on February 18, 2004, the HIMS Coding Contact sheet for Accounts

Receivable (A/R) and Billing Clerks was published. This list indicated

that A/R and Billing Clerks are to contact directly Person D (a 675)

for Buffalo Emergency Room and Ambulatory Surgery coding issues, Person

F (a 669) for Buffalo/Batavia HCC coding issues, and Person G (a 675)

for Inpatient Personnel Fee coding issues. With respect to complainant,

however, the list indicates that A/R and Billing Clerks are to cc Person A

as well as contact complainant for Buffalo/Batavia Clinic and Outpatient

Visit issues. In both her April 22, 2004 correspondence and on appeal

complainant specifically states that the February 4, 2004 incident was to

be deleted from her complaint. Additionally, she makes no reference to

the issues numbered by the agency as D (2), (3) and (6). Thus, we will

not address the agency's dismissal of issues D (2), (3) and (6).

Upon review, we find that issue D was properly dismissed for failure

to state a claim. We note that with regard to this issue complainant

failed to show that she suffered a harm or loss to a term, condition,

or privilege of employment for which there is a remedy. Additionally,

when considering the totality of complainant's complaint, we find that

the alleged incidents were not sufficiently severe or pervasive to

constitute harassment.

Accordingly, the agency's decision to dismiss complainant's complaint

is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 22, 2004

__________________

Date