01A44197_r
11-22-2004
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