Anwar Shah, Complainant,v.John W. Snow, Secretary, Department of the Treasury Agency (Internal Revenue Service), Appeal No. 01A42723 Agency No. 03-3101

Equal Employment Opportunity CommissionJul 29, 2004
01A42723 (E.E.O.C. Jul. 29, 2004)

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