EEOC agrees with MSPB finding of no discrimination or retaliation. Petitioner filed a petition with the Merit Systems Protection Board (MSPB) alleging discrimination on the basis of disability (left shoulder and knee) and reprisal when she was removed from her position. The MSPB Administrative Jude (AJ) found that the evidence supported the agency’s removal of Petitioner based on her unacceptable performance appraisals from October 1993-July 1995 focusing on her unacceptable numbers of errors and inconsistencies with her work. The AJ noted that Petitioner failed to challenge the agency’s reason for her poor performance and that she failed to make use of the available resources which would have improved her performance despite her limitation. The Agency’s action was upheld by the MSPB AJ, and Petitioner filed a petition for review of her case to the full MSPB to reconsider the initial decision. The MSPB denied Petitioner’s request because her request failed to meet the statutory criteria for review, so Petitioner petitioned the Equal Employment Opportunity Commission’s (EEOC) Office of Federal Operations (OFO) for review.

On review, the OFO held that Petitioner was able to prove she has a physical impairment however, she was unable to show that those impairments affect and substantially limit a major life activity, or that the Agency regarded Petitioner as having a substantially limiting condition. Assuming Petitioner had established a prima facie case of disability discrimination, the OFO held that Petitioner was unable to prove that she was terminated because of her disability rather than for her poor performance evaluations. The OFO further held that Petitioner did not establish her reprisal discrimination claim because the official that removed her was unaware of Petitioner’s prior EEO activity. Even if she had established a prima facie case of reprisal, she was unable to show the Agency’s reasons for removing her were pretext for discrimination. The OFO concurred with the Agency’s final decision finding no discrimination.

Sanchez v. Department of the Army, EEO Appeal No. 03990129 (August 31, 2000)