01A42723
07-29-2004
Anwar Shah, Complainant, v. John W. Snow, Secretary, Department of the Treasury Agency (Internal Revenue Service), Appeal No. 01A42723 Agency No. 03-3101
Anwar Shah v. Department of the Treasury
01A42723
07-29-04
.
Anwar Shah,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury Agency
(Internal Revenue Service),
Appeal No. 01A42723
Agency No. 03-3101
DECISION
Complainant initiated a timely appeal from a final agency decision (FAD)
regarding his 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. Complainant alleges
that the agency harassed and discriminated against him on the bases of
his race (South-East Asian), color (brown), national origin (Indian),
religion (Muslim), and age (D.O.B. 4/4/39) when he was: (1) subjected
to unfair treatment during classroom training with the agency; and (2)
terminated from his position. The appeal is accepted pursuant to 29
C.F.R. � 1614.405.
BACKGROUND
Complainant has an extensive background in finance, and the record
shows he has received multiple letters of recommendation attesting to
his accomplishments and high degree of performance. He held various
positions relating to finance before he was retained by the agency.
On September 22, 2002, complainant accepted a career-conditional
appointment as a Revenue Agent (GS-512-09) at the agency's Mountainside,
New Jersey Small Business/Self-Employed Division facility. Complainant's
conditional status was to be followed by permanent placement after one
year with the agency. As a probationary Revenue Officer, complainant was
expected to complete two classroom course trainings, two examinations
with a score of 70% or above, and on-the-job training. It was in the
classroom that complainant first alleges he was harassed and discriminated
against. Complainant asserts that in October and November of 2002 his
instructor ridiculed him in front of his classmates, chastised him for
asking questions, and singled him out for reproach and negative treatment.
Complainant claims this harassment resulted in his two failing examination
scores of 58% and 43%, though he did pass the on-the-job portion of his
evaluation. Complainant also asserts that on January 28, 2003 he was
discriminated against when he was terminated from the agency.
Complainant contacted an EEO counselor on January 28, 2003, and filed a
formal complaint on March 4, 2003. The agency conducted an investigation
and released its FAD on January 10, 2004, finding no discrimination.
Claims on Appeal
On appeal, complainant contends that the agency erred in stating that
complainant and two Southeast Asian classmates were of the same race;
that the agency erred in its reliance on his classmates' Declarations
because they too harassed him; and that he was treated disparately because
the other students were Certified Public Accountants and were therefore
more knowledgeable about the subject matter taught during training,
which put complainant at a disadvantage.
In its appeal brief, the agency reasserts its FAD analysis and concludes
that complainant did not establish a prima facie case, and if he
did, complainant has not demonstrated that the agency's legitimate
nondiscriminatory reasons were pretext.
FINDINGS AND ANALYSIS
The Commission finds that complainant was not discriminated against in
violation of Title VII or the ADEA. Normally, to successfully prove
a case of discrimination, the complainant must satisfy the three-part
scheme detailed by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). The complainant must generally establish a prima
facie case by demonstrating that (s)he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978).
The prima facie inquiry may be dispensed with in this case, however,
because the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). Thus, to ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997).
In regards to complainant's first claim, the Commission finds that
complainant has not demonstrated, by a preponderance of the evidence,
that his instructor treated him unfavorably for any reason other than
complainant's own behavior. The instructor claims that he reprimanded
complainant when complainant did not bring classroom materials, or when
complainant came in late to class. The record also contains numerous
affidavits from complainant's classmates attesting to the instructor's
nondiscriminatory treatment of complainant. Although complainant alleges
that his classmates have colluded with one another in order to cover
up the discrimination, the Commission finds complainant's explanation
incredible given the lack of supporting evidence. Complainant also
contends that as one of the few non-CPA students he was discriminated
against because of his lack of knowledge, yet neither Title VII nor
the ADEA offer protection to employees on the basis of education. The
Commission therefore rejects complainant's first claim.
In regards to complainant's termination, the Commission also finds
that complainant failed to establish that the agency's legitimate
nondiscriminatory reason was pretext. More specifically, complainant did
not show he was terminated for any reason other than his failure to pass
the two classrooms exams. Additionally, complainant did not identify
anyone who failed both exams yet was retained by the agency. Furthermore,
complainant does not allege that his supervisor discriminated against
him, yet his supervisor is the official who recommended complainant's
termination. The Commission therefore finds that complainant was not
removed from his position in violation of Title VII or the ADEA.
After a careful review of the record, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, the Commission AFFIRMS the
agency's FAD finding of no discrimination.
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
____07-29-04______________
Date