EEOC affirms MSPB decision finding no disability discrimination. Petitioner filed a petition with the Merit Systems Protection Board (MSPB) alleging discrimination on the bases of race (Black), age, and disability (knee injury), when he was removed from his position based on the charge that he was physically incapable of performing the duties of his position. Following a third-party physical evaluation, the Agency rescinded the removal action against Petitioner and supplied the MSPB a copy as evidence. The MSPB Administrative Judge (AJ) determined based on the rescission that the matter should be dismissed for lack of jurisdiction. Petitioner petitioned the Board to review the dismissal, and the Board granted the petition, remanding the matter to the AJ in order to determine whether the agency had completely rescinded the removal action and restored petitioner to his prior status. On remand, the MSPB AJ rejected petitioner’s defenses based on race and age, and noted that petitioner failed to present evidence in support of his claims of discrimination. The AJ further held that the agency failed to provide petitioner with a reasonable accommodation, and concluded that the removal action was based on disability discrimination. The Agency petitioned the Board for review, and the Board determined that the petitioner’s impairments were not substantially limiting in any major life activity, and the Agency regarding the petitioner as disabled based solely on his physical inability to safely perform the duties of his position was not enough to support a claim of disability discrimination. Petitioner petitioned the Equal Employment Opportunity’s (EEO) Office of Federal Operations (OFO) for reconsideration.

On reconsideration, the OFO held that petitioner did not meet the “regarded as having a disability” prong of a disability discrimination claim. Because petitioner failed to provide any documentation or evidence to show that he could have performed the essential functions of his position with or without a reasonable accommodation, he did not meet his burden of establishing he met the definition of an individual “regarded as” having a disability necessary to support his claim. The OFO agreed with the MSPB, and upheld the Board’s decision.

Joe N. Harris, v. Department of the Air Force, EEOC Petition No. 03A60039, (May 24, 2006)

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