Mohamed Hewady, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionNov 4, 2004
01a42841 (E.E.O.C. Nov. 4, 2004)

01a42841

11-04-2004

Mohamed Hewady, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Mohamed Hewady v. Department of Agriculture

01A42841

11/4/04

.

Mohamed Hewady,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A42841

Agency No. 020814

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning 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 Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission AFFIRMS the agency's final decision.

The record reveals that during the relevant time, complainant was employed

as a Plant Protection and Quarantine (�PPQ�) Officer at the agency's

Newark, New Jersey facility. Complainant sought EEO counseling and

subsequently filed a formal complaint on September 17, 2002, alleging that

he was discriminated against on the bases of national origin (Muslim),

religion (Muslim), and disability (diabetes) when:

he was not allowed to repeat the New Officer Training, which resulted

in his termination from the program on July 1, 2002; and

he was not provided an accommodation of his disability while attending

PPQ Officer training.

At the conclusion of the investigation, complainant was informed of

his right to request a hearing before an EEOC Administrative Judge

or alternatively, to receive a final decision by the agency. When

complainant failed to respond within the time period specified in 29

C.F.R. � 1614.108(f), the agency issued a final decision.

In its FAD, the agency concluded that complainant established a prima

facie case of religious discrimination. However, the agency found that

it articulated a legitimate, non-discriminatory reason for complainant's

termination from the New Officer Training Program; namely, that he

failed to achieve a passing score of 80% on his first three tests in

the training. In accordance with the rules at the time, complainant

was not permitted to re-take the test.

Although complainant presented evidence that others failed, but were

permitted to stay in the New Officer Training course, the agency

found that they were not similarly situated to complainant. In that

regard, the agency noted that due to an EEO complaint filed over the

potential disparate impact of the New Officer Training requirements on

an unnamed protected group, the agency decided to suspend the automatic

termination. When the Office of Personnel Management conducted a study

and concluded that the test did not result in a disparate impact, the

agency reinstated its requirements. Accordingly, those who entered on

duty during the suspended period of September 2001 through May 2002,

were not subjected to the same rules as complainant. The record revealed

that the comparatives cited by complainant were included in this class

of people, and complainant was not.

As for his claim that he was denied reasonable accommodation, the

agency found that complainant requested a hot plate and refrigerator

in his hotel room, and access to an exercise room while he attended New

Officer Training. However, he failed to establish a prima facie case of

disability discrimination because he failed to identify how his diabetes

substantially limited a major life activity.

Complainant makes no arguments on appeal.

Although the Commission finds that complainant properly established

a prima facie case of religious discrimination, we also find that

complainant failed to present evidence that more likely than not,

the agency's articulated reasons for its actions were a pretext for

discrimination. In reaching this conclusion, we note that complainant

presented no evidence whatsoever that would contradict the agency's

reasons for its actions. Furthermore, complainant did not argue that

the New Officer Training requirements caused any disparate impact on

him because of his membership in any protected group.<1> Finally, we

find no evidence of a discriminatory motive when he was terminated from

his position.<2>

As for complainant's reasonable accommodation claim, we find

that assuming, arguendo, that complainant is an individual with a

disability, we find he failed to prove the agency denied him a reasonable

accommodation for his diabetes. Complainant requested that the agency

provide him with a hot plate, refrigerator and that he had access to an

exercise room while he was out of town for the New Officer Training.

The record reveals that complainant was provided with a room with a

microwave, refrigerator, and had access to another hotel which had

an exercise room, which was within walking distance from his hotel.

We find that this was a reasonable accommodation of complainant's

alleged disability. In so finding, we note that complainant did not

specify how the agency's accommodation did not satisfy his medical needs,

such as with respect to his food preparation or exercise needs.

Therefore, after a careful review of the record, including arguments and

evidence not specifically addressed in this decision, we affirm the FAD.

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

11/4/04

Date

1In that regard, we note the record does not contain any evidence as to

the outcome or basis under which the disparate impact EEO case was filed.

2Although complainant claimed he was discriminated against when he was

questioned by the Federal Bureau of Investigation, he failed to link

this claim to his allegations against the Department of Agriculture.

Accordingly, we do not find it was evidence of any discriminatory motive

on the part of the Department of Agriculture.