EEOC agrees with MSPB that employee was not discriminated against. Petitioner was given a notice of removal based on: rudeness and an unacceptable level of customer service, and making threatening remarks in the workplace. Following a petition signed by 19 patients saying Petitioner was rude and requesting she not be assigned the cashier window, and the Petitioner saying “I’m going to get my pistol, bring it in and shoot up everybody”, the Agency issued a decision to remove Petitioner from her position. The Petitioner filed an appeal with the Merit Systems Protection Board (“MSPB”) asking them to review her termination. After a hearing, the MSPB Administrative Judge (“AJ”) issued an initial decision sustaining the charges and affirming the Petitioner’s removal. Petitioner then filed a Petition for review from the whole MSPB board, arguing the Agency discriminated against her on the bases of disability (bipolar disorder), race (African American), and age (65). Initially, the Board denied the Petition, but Petitioner filed a new petition asking the Equal Employment Opportunity Commission’s Office of Federal Operations (“OFO”) to review her allegations of discrimination.

On review, the OFO agreed with the MSPB’s findings that Petitioner engaged in the charged misconduct. The OFO further held that even if the Petitioner’s behavior was because of her disability, the Agency did not treat her differently in violation of the Rehabilitation Act noting that an agency may discipline an individual with a disability for violating a workplace conduct standard, even if the misconduct resulted from a disability, provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity. The OFO concurred with the final decision of the MSPB finding no discrimination.

Petitioner v. Dept. of Veterans Affairs, EEOC Petition No. 0320140048 (February 12, 2015) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0320140048.txt