EEOC agrees with MSPB finding no discrimination against federal employee. Petitioner filed an Equal Employment Opportunity (EEO) complaint on the bases of disability (physical and mental), age (over 40), and in reprisal for prior protected EEO activity. This was based on his receipt of a Decision to Remove based on two charges: inability to meet a condition of employment (unable to report for duty); and conduct unbecoming of a federal employee. Following the EEO investigation, Petitioner filed an appeal with the Merit Systems Protection Board (MSPB). An MSPB Administrative Judge (AJ) concluded that the Agency had appropriately supported its removal action.  The AJ found that the psychologist credibly testified that Petitioner made threats against his Supervisor and his unit, and that the Agency removed him because of those threats.  Although the AJ found that he could not address the merits of Petitioner’s debarment, because it involved the revocation of Petitioner’s security clearance, he concluded that Petitioner could not perform his job because he was not allowed back on base. The AJ also found that Petitioner did not prove his discrimination claims. Petitioner then appealed to the Equal Employment Opportunity Commission (EEOC)for reconsideration.

On appeal, the EEOC’s Office Federal Operations (OFO) the held that the MSPB AJ applied an improper analysis. However, OFO found that the AJ ultimately reached the correct conclusion that the Agency had not discriminated as alleged. The OFO held that even assuming arguendo that Petitioner established a prima facie case of reprisal, disability, and age discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions namely, that Petitioner was removed from his position for making statements in the workplace that caused anxiety, fear and disruption when he threatened the lives of his Supervisor and those in his unit. The OFO further held that the Petitioner was unable to show that the Agency’s actions were pretext for discrimination. The OFO concurred with the final decision of the MSPB finding no discrimination.

Hyman W. v. Department of the Air Force, EEOC Petition No. 0320170034 (May 24, 2017) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0320170034.txt

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