(704) 706-9292

EEOC agrees with MSPB decision finding no discrimination against a federal employee. 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 her claims of discrimination on the bases of national origin (Native American), sex (female), disability (job-related stress and high blood pressure), and prior protected EEO activity. She alleged the discrimination occurred when the Agency made a decision to remove her from her position based on her continued Absence Without Official Leave (AWOL) and failing to follow proper instructions for securing leave approval. Following a hearing, the MSPB Administrative Judge (AJ) issued an initial decision upholding the Agency’s removal finding Petitioner failed to meet her burden of establishing the alleged discrimination, noting that she failed to put forward a comparative employee who had engaged in similar misconduct or any other evidence raising in inference of discrimination. Petitioner then Petitioned the EEOC’s Office of Federal Operations (OFO) for review.

On review, the OFO held that assuming the Petitioner was a qualified individual with a disability, she did not establish that the Agency’s actions constituted national origin, sex, disability, or reprisal discrimination. The OFO then held that assuming that she had established a prima facie case of discrimination, the Agency was able to articulated a legitimate, non-discriminatory reason for her removal, namely Petitioner’s continued AWOL status and failure to follow proper instructions for securing leave approval.  Additionally, the OFO agreed with the MSPB AJ that Petitioner failed to establish that the Agency’s reason was a pretext and that the Petitioner failed to establish that she was denied a reasonable accommodation in that she was granted leave to cover some of her absences and the Agency approved some of her requests to work from home for periods of time. The OFO concurred with the MSPB’s finding of no discrimination.

Sherdona D. Fryer v. Department of Energy, EEOC Petition No. 0320120004 (August 16, 2012) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0320120004.txt

Attorney Kirk J. Angel represents federal employees in claims before the EEOC and MSPB.