please the court monica watson is an african american employee of the day she worked there for over ten years she worked in the health information area of the others how to code their patients each and every procedure meeting or device given every single patient has to be coded in order for that the a to track their work and receive payment miss watson for nine dollars of the ten years she worked for the an exemplary employee according to her her job job reviews she worked hard she finished her bachelor of science degree and health information management and received her our age credentialing she sixteen she was viewed as a problem employee with an attitude problem who did not want to work at the v a that characterization was patently untrue misess watson testified under oath in her ego affidavit that schwab treated black employees differently than cock asians she singled out black employees for discipline gave them more difficult and more volume of work then the white employees setting them up for failure she gave the black employees quotas that were prohibited by the national ammo you and then broke them up when they were unsuccessful conversely the caucasians were given the opportunity to train doctors in coding a job that is supposed to be done by the c d s plaintiff's position the caucasian employees were given essay awards for their efforts the black employees including ms watson were told that they were an embarrassment and that they could not possibly train doctors schwab had the black employees trained the white employees then promoted the why deploy over the black employees schwab told ms watson that she should go back to where she came from and sent her job announcements as a way of letting her know she was not welcome at the v a in discovery we also learned about racial slurs directed at plaintiff but even if we don't get to those racial slurs plaintiff has made a promise they should case of discrimination but the agency and the lower court have taken a piecemeal look at attempting to limit her to the verbiage chosen by the agency to define her issues both the agency and the court unfairly limited her complaints when one looks to the evidence it duz during the investigative process coupled with that found during the course of discovery plank of a set for sufficient facts to allow this case to go to a jury the issues on appeal are st whether or not plaintive administratively exhausted her complaints and nd whether she made a promise facia case with regard to the underlying complaints the court made the same error in determining both of those issues she is the court failed to piecemealed her complain in determining that plaintiff failed to exhaust the administrative remedies she also in both instances the court narrowly construed the complaints which in the federal system are framed by the agency not the planet and she failed to broadly construe the complaint under this broadly remedial statute so the result is she claimed the plaintiff failed to administratively exhaust her complaints in the informal complaint process not the formal complaint process and that she failed to make her private facia case with regard to the informal complaint the lower court ruled that plaintiff failed to properly and administratively exhaust her complaints at the informal stage of the investigation saying that she complained only of the letter of counseling up plaintiff adamantly denies that and the record supports plaintiff's position that she did in fact bring the harassment claims to the e o counselor in the informal process in its brief the defendant has conceded that the agency did actually investigate these complaints and therefore claim appears to be waiving any argument that it ministre to exhaustion did not occur regarding harassment unless there are questions about that then i won't spend further time on that portion of the argument with regard to retaliation the plaintiffs also administratively exhaust a retaliation complaints because the court misapplied the standard for retaliation in order to administrative leave exhausted those complain limit retaliation to actions occurring after a complaint of discrimination is actually filed the law does not so limit these actions under title seven an employee engages in protected at to vittie when she  opposes any practices that are made unlawful under title seven or nd she makes a charge testifies assists or participates in any manner in an investigation proceeding or here the court recognized the pla language of title seven contains an opposition clause and a participation clause both the court and the to bend it look only to the participation clause the opposition clause was met when plaintiff began bringing concerns of discrimination to her employer and two thousand and fifteen a full year before she was constructively discharged after her complaints were made in two thousand and fifteen her sort of supervisors began retaliating against her even going so far as to tell others and to testify that she was a disgruntled employee who was a troublemaker and that she was making a hostile environment for her supervisor laurie schwab by filing these these complaints it was after she began telling administration of the hospital working environment that the verbal discussion that she should leave and the sending of flyers to her to encourage her to leave were occurring because the claimed retaliatory incidents are the same incidents as those raised to show discrimination in her formal complaint nothing prohibited the agency from accepting the retaliation claim as being like or related to those accepted for investigation this situation differs significantly from a situation in which the retaliatory actions take place subsequent to the filing of a charge in this matter she's talking about the events that occurred after she opposed the discriminatory treatment she was receiving the agency then except her retaliation amendment and investigated them to require her to file another complaint for the very same investigation is redundant and unnecessary the courts that have reviewed similar situations have a found that if the investigation would be redundant there's no reason to require it and in this instance mishandled it i know if you want to get back to the exhaustion in a minute that would be fine but before too much more time passes i do have a question about the adverse  employment action and i'd like you to address that if in to express expressly state what the adverse and plain action is in this case in this case the adverse employment action is the compilation or the constellation of the vents that occurred including all of the harassing events kim kim versus nash lays out the situation in which an individual can have an adverse employment action without actually receiving a diminution in pay or a lower job performance or a discharge in kim versus nash didn't it explains that the court may look to the totality of the circumstances and that can include the reduction of duties lower job performance evaluations papering the filed with negative reports of the type of them plummet actions that have serious employment consequences and adversely affect or undermine a plain in this case the plaintiff wasn't boarded which prevented her from being qualified for higher positions while those cut cations she trained and were under her were promoted over her because they'd been bored she had i have a question on the issue of borning i think i understand generally what it means but what i don't understand is how it is linked with promotion because i understood that that she that your client was an a g s nine already and there was some discussion of not needing to be boarded so could you help me understand how boarding is linked to promotion yes absolutely she was a g s nine coder then when the title thirty eight positions were changed g s eight was the highest that a code was grandfathered into so the result was that those that had actually been boarded as a g s nine c d i were allowed then to be promoted on a that level being grandfathered in as the coder prevented her from moving up into the c d i level did that make sense i can't say i understand it completely but go ahead with the very we might need a separate document translating the acronyms yes yes i understand that but it's not just the boarding in the it in this instance she had the c d i training positions  i she was supposed to train doctors and others on how to code that was the advanced part of the c d i training and she trained all of the cocaine employees to be able to do that but those training positions were taken from her and from the other voters and they were told that it would be an embarrassment to have them training the doctors even though she was that most highly educated had the most credentials and was even given plaudits for her customer service skills she and other black coders were given more even at work she and the other black employees will watch more closely they were treated in demeaning ways including including having their work thrown back at them and i mean physically thrown at them black employees were required to keep the door of their area open all the time even though their jobs require them to deal with personal health information she was told to go back where she came from by her supervisor instant job announcements encouraging her to leave and she was the only one to receive that st job announcement even the complaints and they are under oath and i see that i have used up most of my time so i'm going to stop unless you have further questions i very well thank you prue argument mister starr will hear from you to court and place your honor let me know if you continue to have trouble hearing  my name is keith starr and i represent up lee in this case the secretary of the parthenon veterans affairs all refer to the department as the v a wrote this argument based on the limited record the investable evidence and this course well established legal precedent summary judgment is appropriate in this case in the record before the court there are no genuine issues of material fact and there are multiple reasons why each causes of actions fail as a matter of law the government's st claim is for race discrimination that claim fails for two reasons the st reason being that didn't submit enough work appropriate admissible evidence to create a genuine issue of material fact to support one of her elements to prove her profession case the other reason is because the  not under the mcdonnell douglas burden shifting framework rebutted the v a s nondiscriminatory reason for each of the three discrete acts that support her race discrimination point  claim is for a racially hostile work environment that claim fails for three reasons appellant did not submit it miscible evidence to support three elements of her prima fashion case nor working conditions were intolerable as defined by this court's legal precedent nor has she shown that she gave the v a a chance to work on fixing her working conditions repor you voluntarily resign or may th two thousand and sixteen as i mentioned previously mentioned your honour's there are only three discrete acts at issue to support the appellant's race discrimination job responsibilities to see where they fall in line in grade and step on a pay scale now boarding also occurs when there is a job title change to an existing federal employee if a  existing federal employee has a job title change that changes her job responsibilities and job duties then that person will require reporting that is if they receive an increase in responsibility then perhaps based on the administrative procedures governing where they would fall on to pay scale they may d fall on a higher step or grade in the pay scale however boarding is never used as a vehicle for promotion boarding is simply ministerial and it does not and  further training or further responsibility which could then lead to promotion no your honor that is a great point but the boarding process merely determines what the employee is going to get paid based on her current job responsibilities it does not provide an opportunity for further training it does not provide an opportunity or opportunity to obtain a different position it merely looks at the federal employees current job responsibilities based on her job title based on her job description and decides where that employee would fall along the pay scale in this case when a all but admitted it during this argument that poor a parent's job title change she was already in advance so when her job title changed to medical from medical records technician to medical fully successful rating on her annual review in late two thousand and fifteen now only successful rating is not a negative performance review for one it is a performance review that indicates that the employee has met expectations so here the reason why the palin received a public successful rating is because she met the expectations that were separate her at the beginning of the year not because  she was performing poorly or because of illegal race discrimination she simply met the expectations that were set for her and that's why she received the ratin because it was never used to reduce the appellant's pay or benefits or her job responsibilities as i mentioned before it was simply used to indicate that the  that expectation or at the beginning of the year the rd discreet act that supports the opponent's race discrimination claim is her receipt of a written counseling letter in early two thousand held time and time again that the receipt of a counseling letter by itself is not an adverse employment action and as i understand her claim though it's  the picture it's under the vs nash case which is that there's a number of actions that were taken by the employer that resulted in an adverse employment action and not one individual piece and you speak to is is not controlling here because we're dealing with a different procedural posture it is not persuasive either because they did or in camp the plaintiffs was clearly qualified for a promotion that he didn't receive but instead the promotion was given to a younger employee that mister kim how in fact train the nd reason why it doesn't  doesn't quite fit here and is not very persuasive is because there was copious amounts of evidence that case that systemic discrimination and retaliation began immediately after mister kim filed a charge of discrimination for being passed over for promotion here there are including these three discrete acts  discrimination in essence they seem to be happening in random and plaintive believes its st objective believe that all of these acts are somehow connected and somehow for a systemic problem in the v a however based on the record before the court that just simply is not supported what is the scar yes your honor in the kim case the court said kim's duties had been reduced he received much lower performance evaluations than he had received before filing his charge and he was required to undergo special remedial training and results zero evidence that the company had papers filed negative reports including room two written reprimands and that was the gist of why there was held to be an adverse action in that case would you say the record here is as good as kim's record or not as strong and if so why it is it is definitely not a strong your honor in kim the the those systemic actions that you just mentioned occurred immediately after mister kim file his charge of discrimination citing a sort of timing i'm just talking about winning there was an ad bruce action yes your hon know when you when you look at the kemp case he actually received less job responsibility he was well on his way to earning the promotion that he apply for but because he was passed over and because he filed charges discrimination is responsibilities were actually reduced and in this case the appellant's job responsibilities when are salary including the benefits appellant claims that her st line supervisor and nd line supervisor threatened to shut down her work group which by the way consisted of four coders three of which were black and one of which were white  is are what or what are styled racial remarks that were made within her group now there is nothing to support this in the record there are no admissible evidence of case to the accepted issues defined by the agency at the very outset of the investigation claiming that those are the only instances of harassment that can be looked at to determine whether or not claimed it was discriminated against now if we quit there there is no reason for an investigation no reason for a board of investigation and no reason for discovery the affidavit and the supporting materials lay out many many instances of discrimination the defendant does not give a bona fide preach non prescribed pretextual reason for almost all of the allegations the plaintiff has made and put in the summary judgment argument rather they have only chosen three and said that there were were valid justifiable reasons for those three well even if we were to take that and assume that the there were valid justifiable reasons for those three arguments what about the other seven that were laid out in the report of investigation as the issues that were chosen and what about the myriad of complaints that are found in the actual affidavit that was submitted with the r o y none of those have been even touched by the defendant what we have left and is we have a myriad of complaints that it were our client made and the that we have sufficient information for that was under oath in the report of investigation that had never been denied by the defendants whatsoever as always they're trying to limit the facts and limit the elements that can be used now defendant argued with regard to race discrimination that there was no change and the plaintiffs didn't have that the only time you board is if there's a change in job responsibility in this case there was plaintiff's job title change as did her responsibilities where they were supposed to but since she was grandfathered into g s nine as opposed to going to the c d i she was not given the responsibilities that she should have been which would have allowed her to train to have in her interaction with others in the hospital and to otherwise have duties that would allow her to have a higher kind of pay and advancement the white coders were all boarded and they were all subsequently advanced and she was not even though she trained them and finally with regard to the retaliation claims plaintive did make complaints directly to kevin equally who was the nd in command of the entire k c v a and in those meetings and in april of two thousand and fifteen laid out her complaints after that she was retaliated against plenty of did make the appropriate plates so your time is expired we thank you for your argument thank you so very well thank you both counsel the case is submit