EEOC agrees with MSPB Judge in finding no discrimination and no retaliation. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination on the bases of disability (mental delay, kidney problems, knee impairment, and chronic pulmonary disease), age, and reprisal. Specifically, he alleged the discrimination and retaliation occurred when he was ordered to undergo a fitness for duty examination (FFDE), offered disability retirement, and ultimately fired. Following the initial investigation, the Administrative Judge (AJ) determined that there were no material issues in dispute and issued a decision without a hearing concluding Complainant had not been discriminated against as alleged- specifically, Complainant failed to prove that the Agency’s legitimate reasons for the FFDE were pretext. The Agency adopted the AJ’s conclusions and Complainant appealed.

On appeal the EEOC’s Office of Federal Operations (OFO) noted that although the Rehabilitation Act places certain limitations on an employer’s ability to make disability-related inquiries, such inquires can be made if it is “job-related and consistent with business necessity” when the employer has reasonable belief that “an employee’s ability to perform essential job functions will be impaired by a medical condition…” The OFO noted that the Agency observed Complainant quickly becoming fatigued while performing his job duties, and held that an FFDE following such observations was consistent with the Rehabilitation Act. The OFO further held that Complainant suffered no harm from the Agency offering disability retirement, as he refused to sign it and at the time of the appeal was still working at the Agency. The OFO affirmed the AJ’s grant of summary judgment.

Richard Wishkin v. United States Postal Service, EEOC Appeal No. 01A05575 (April, 28, 2003)

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