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.