EEOC affirms MSPB finding agency did not discriminate against employee on basis of disability. Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination on the basis of disability (ADD) after he formally requested a reasonable accommodation for his learning disability after his 120-day Performance Improvement Plan (PIP) had already concluded and he had failed to pass the required exams he needed to obtain professional certifications. Several of Petitioner’s requests were denied by the Agency reasoning that “[F]irefighters must be able to quickly and safely operate all fire apparatus in real-life emergencies, and the practical exams appropriately test that the skills you learned…” and Petitioner was ultimately terminated from his position. The MSPB Administrative Judge (AJ) found that several of the ways in which Petitioner failed his various certifications had nothing to do with his disability and therefore his removal had nothing to do with his disability. After reconsideration by the MSPB, the Board determined the AJ applied the wrong legal standard and remanded the case back to the MSPB. For its second initial decision, the MSPB AJ found that Petitioner failed to establish his affirmative defense of disability discrimination based on the Agency’s alleged failure to reasonably accommodate his learning disability and issued its second Final Order. Petitioner then petitioned the EEOC’s Office of Federal Operations (OFO) for review.

On review, the OFO noted that reasonable accommodation does not require that the employer: tolerate or excuse the poor performance; withhold disciplinary action (including termination) warranted by the poor performance; raise a performance rating; or give an evaluation that does not reflect the employee’s actual performance. The OFO found that the MSPB AJ properly sustained the removal because Petitioner did not give the Agency notice of his need for accommodation until after the 120-day PIP had expired. As a result, the OFO concurred with the final decision of the MSPB finding no discrimination.

Petitioner v. Department of the Army, EEOC Petition No. 0320120039 (December 22, 2014) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0320120039.txt