01a51196
03-10-2005
Leela H. Sherman, Complainant, v. John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Leela H. Sherman v. Department of the Treasury
01A51196
March 10, 2005
.
Leela H. Sherman,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01A51196
Agency No. TD 01-4164
Hearing No. 340-2002-03220X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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 appeal is accepted pursuant to 29 C.F.R. �
1614.405.
The record reveals that complainant, is a Revenue Agent for the agency's
Internal Revenue Service (IRS), GS-0512-12, at the agency's Small
Business/Self-Employed Business Unit - Area 16 in Los Angeles, California.
The record further reflects that on September 30, 1994, the agency's
Internal Revenue Committee (IRC) and the California Board of Accountancy
(CBA) entered into a memorandum of understanding regarding the duties and
responsibilities of the IRC in regard to the certification of qualifying
experience obtained by IRS employees who are seeking certification as
a Certified Public Accountant (CPA).
The record also reveals that a CPA Experience Reference Guide states in
part that an applicant for licensure must have two years of qualifying
work experience under the direct supervision of a CPA. Moreover,
the Reference Guide indicates that a State Board determines that the
experience required by a �Form E� [Certification of Experience] cannot
be obtained in less than 500 hours of audit experience.
Complainant filed a formal EEO complaint on March 20, 2001, claiming
that the agency discriminated against her on the bases of race (Asian),
national origin (Indian-American), sex (female), color (brown), age
(D.O.B. 11/24/42), and in reprisal for prior EEO activity. Therein,
complainant claimed that the agency delayed the licensing and
certification of complainant as a CPA when agency management:
(1) reduced the number of qualifying hours she worked on CPA cases,
as reflected in partial Form E, Certificate of Experience, dated October
23, 2000;
(2) did not timely review her CPA cases, resulting in an untimely
submission of Form E; and
(3) provided false statements before the Qualifications Committee for
the California Board of Accountancy on December 7, 2000.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On July 29, 2004, the AJ issued a Notice
of Intent to Issue a Decision Without a Hearing, allowing the parties
to file a written response to the Notice. The record reveals that the
agency responded.<1> Thereafter, the AJ issued a decision without a
hearing on September 17, 2004, finding no discrimination.
In his decision, the AJ concluded that complainant failed to
establish a prima facie case of race, national origin, color, sex
or age discrimination concerning claims (1) - (3). The AJ further
concluded that even if complainant established a prima facie case of
discrimination, the agency articulated legitimate, nondiscriminatory
reasons for its actions. The AJ found that complainant failed to prove
that the agency's articulated reasons were a pretext for discrimination.
Regarding claim (1), the AJ found that the IRC Chairperson stated that
complainant's submitted hours were reduced because she claimed hours
for work that were not accurate, incomplete, and were not justified
for work assignments assigned and performed. The Chairperson further
stated that complainant's race, national origin, color, sex and age
were not factors in the IRC's decision to reduce her qualifying hours.
Regarding complainant's claim that other candidates were able to obtain
qualifying hours more readily before the Chairperson was appointed to
that position, the AJ determined that complainant failed to provide
evidence to support her contentions.
Regarding claim (2), the AJ noted that the IRC Chairperson and IRC
members stated that delays were due to a shortage of reviewers as well
as due to the quality of complainant's submitted work.
Regarding claim (3), the AJ determined that there was no evidence showing
that the IRC Chairperson's alleged statements that complainant had to
work on one more case in order to meet the 500 hour Form E requirement
were incorrect or made in bad faith. The AJ noted that when the IRC
Chairperson made the alleged statements, the agency had approved only
480 hours for complainant.
On October 28, 2004, the agency issued a final order implementing the
AJ's decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that any
of the agency's actions were motivated by discriminatory animus toward
complainant's protected classes. The agency's final order implementing
the AJ's finding of no discrimination is therefore 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
March 10, 2005
__________________
Date
1The record reveals that the AJ did not admit
complainant's untimely response to his Notice.