EEOC affirms decision of MSPB finding no disability discrimination. Petitioner filed an appeal with the Merit Systems Protection Board (MSPB) alleging his separation was due to disability. Specifically, he alleged the Agency had discriminated against him on the basis of his physical disability (Woff-Parkinsons-White Syndrome, Spondylolisthesis, lumbar fusion, and Atrial Fibrillation) when it separated him from the position of full-time employment. The MSPB found in favor of the Agency. Petitioner filed another appeal requesting further review which the MSPB denied on the grounds that it failed to meet the statutory criteria for review. Petitioner then filed a petition for review with the Equal Employment Opportunity Commission’s (EEOC) Office of Federal Operations (OFO) arguing the MSPB erred in finding no discrimination because the Agency failed to meet its Rehabilitation Act responsibilities by considering Petitioner’s reassignment to permanent light duty.

On review, the OFO found that the Petitioner was a disabled individual and there was a causal connection between his disabling condition and the Agency’s reasons for his removal. The OFO stated that the MSPB Administrative Judge (AJ) correctly addressed the Petitioner’s argument that the Agency should accommodate him by allowing him to permanently perform the duties he performed while on light duty, by indicating that these duties did not constitute a separate position to which petitioner could be reassigned- i.e., the Agency is not required to create a new position to accommodate an employee’s disability. Because the Petitioner was unable to show that, with or without reasonable accommodation, he could perform the essential functions of his position, the OFO held that the Petitioner was not a qualified individual with a disability and his removal did not constitute disability discrimination. The OFO concurred with the MSPB’s decision finding no discrimination.

Hawkins v. United States Postal Service, EEOC Appeal No. 03990006 (February 11, 1999) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/03990006.txt

Attorney Kirk J. Angel represents federal employees in hearings with the MSPB and EEOC.