EEOC agrees with MSPB that employee’s actions were misconduct. Petitioner filed a complaint with the Merit Systems Protection Board (MSPB) alleging discrimination on the basis of disability when he was removed from his position for leave-related violations and not paid for leave while undergoing treatment for his disability. The MSPB’s Administrative Judge (AJ) found the Agency did not engage in discrimination. Petitioner filed a petition for review with the Equal Employment Opportunity’s (EEO) Office of Federal Operations (OFO).

On review, the OFO held that Petitioner met the threshold requirement which would entitle him to disability protections. However, the OFO held that although Petitioner requested a reasonable accommodation in the form of returning to his old shift, there are no requirements that a reasonable accommodation must be the one requested by the Petitioner. By granting an effective reasonable accommodation- even if not the one requested by Complainant, the Agency satisfied their duty to provide a reasonable accommodation. The OFO further agreed with the AJ that a two-month absence from work without communication with or response to inquires is misconduct for which any employee would reasonably be held accountable, regardless of disability status. As a result, the OFO upheld the MSPB AJ’s final decision.

Alton D. McCullough v. United States Postal Service, EEOC Appeal No. 03A10024 (Feb. 14, 2001)

Attorney Kirk J Angel represents federal employees in hearings before EEOC and MSPB administrative judges. If you are a federal employee anywhere in the United States you can set a free 15 minute consultation with Attorney Angel right on this website.