EEOC agrees with MSPB that federal employee did not show discrimination or retaliation. Petitioner was a health Systems Specialist that was reassigned to a new department at the Agency. After reporting to her new assignment for two days, she did not return to work but submitted medical documentation that the Agency found to be insufficient to explain her continued absence. After the Agency notified petitioner that her documentation was insufficient, petition received a warning that if she continued to miss work the Agency may have to take adverse action. The Chief of the division proposed petitioner’s removal, and ultimately removed petitioner from her position. Petitioner appealed this action to the Merit Systems Protection Board (MSPB) arguing the Agency acted in a discriminatory manner based on her disability and prior Equal Employment Opportunity (EEO) activity. The MSPB Administrative Judge (AJ) held that because the petitioner and the Agency agreed that she cannot perform the essential functions of her position or any other position to which she could be reassigned, the was not a “qualified disabled person” and upheld the Agency’s action with a finding of no discrimination.

Following the MSPB decision, petitioner appealed to the Equal Employment Opportunity Commission (EEOC) for review. On review, the EEOC’s Office of Federal Operations (OFO) agreed that petitioner was not a qualified individual with a disability because she could not perform any of the duties required for her position, with or without a reasonable accommodation. As a result, her claim of disability discrimination failed. The OFO further held that in regards to her reprisal claim, the Agency’s explanation for removal was supported by the evidence and the petitioner failed to submit persuasive evidence that the Agency’s actions were motivated by a retaliatory animus. The OFO concurred with the MSPB’s final decision finding no discrimination.

Janeth Hodge v. Department of the Army, EEO Petition No. 03990144 (June 9, 2000)

Attorney Kirk J. Angel represents federal employees throughout the United States.