Leela H. Sherman, Complainant,v.John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionMar 10, 2005
01a51196 (E.E.O.C. Mar. 10, 2005)

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.