EEOC affirms Agency finding of no discrimination after hearing dismissed for failure of employee to appear. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination on the bases of sex (female) age (52), and physical disability (right middle finger injury with gangrene) when Complainant’s request for advanced sick leave was denied. Following the initial investigation, complainant requested a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ), which was ultimately cancelled when Complainant failed to appear for the pre-hearing conference and was remanded for issuance of a Final Agency Decision (FAD). The FAD found that Complainant failed to establish a prima facie case of disability discrimination because she was not a qualified individual with a disability within the meaning of the Rehabilitation Act and failed to establish prima facie cases of discrimination because she presented no evidence that similarly situated individuals not in her protected classes were treated differently under similar circumstances. The FAD also concluded that even if Complainant had established prima facie cases of discrimination, she was unable to show that the Agency’s reasons were pretext for discrimination. Complainant then appealed to the EEOC’s Office of Federal Operations (OFO).

On appeal, the OFO agreed with the Agency that the Complainant failed to establish she was an individual with a disability within the meaning of the Rehabilitation Act. The OFO further noted that none of the identified comparators for purposes of the other discrimination claims had similar attendance problems to that of Complainant. The OFO affirmed the Agency’s FAD.

Rita Jones v. United States Postal Service, EEOC Appeal No. 01983491 (April 13, 2000) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01983491.txt

Attorney Kirk J. Angel represents federal employees in EEO investigations and EEOC hearings throughout the nation.