EEOC agrees with MSPB decision that federal employee was removed for misconduct. Petitioner filed an appeal with the Merit Systems Protection Board (MSPB). Petitioner alleged discrimination basis of disability (severe anxiety disorder) when he was removed from his position for improper conduct (slamming paper towel rolls on the table, kicking chairs, punching a waste basket with his fist, and swearing at a coworker who was watching the incident). Following a hearing, the MSPB Administrative Judge (AJ) issued an Initial Decision finding that the Agency did not discriminate as alleged on the basis of disability. The AJ found there was a nexus between the charge and the efficiency of service and that Petitioner was not an individual with a disability, and even assuming that he was, the misconduct did not result from his condition and there was insufficient evidence that the misconduct would not have occurred had petitioner been accommodated by being assigned to the day shift. The AJ further found that even if the misconduct was caused by a disability, the Agency would have taken the same action absent a disability.

Petitioner then filed with the Equal Employment Opportunity Commission (EEOC) asking for review of an Initial Decision issued by the MSPB concerning his claim of discrimination.  On review, the EEOC’s Office of Federal Operations (OFO) held that the Agency did not discriminate against Petitioner by removing him, as the Agency was not required to excuse Petitioner’s misconduct as a form of reasonable accommodation. The OFO concurred with the MSPB’s Final Decision finding no discrimination.

Murray S. Attias v. United States Postal Service, EEOC Petition No. 03A20020 (June 20, 2002)