EEOC agrees with MSPB that misconduct rather than an EEO factor motivated removal. Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC) asking for a review of a Final Order issued by the Merit Systems Protections Board (MSPB) concerning is discrimination and reprisal claims.  Petitioner alleged that he was discriminated against on the bases of race (white), disability (back injury, nicotine addiction, personality disorder, and hearing impairment) and reprisal for prior protected activity. Petitioner was removed from his position as a Painter for smoking a cigarette in a paint booth- a designated nonsmoking area because of the low flash point of protective coatings and removers used there. In proposing the removal, the agency also considered Petitioner’s previous 5-day suspension for violating safety regulations by smoking in an unauthorized area. Following a hearing, the Administrative Judge (AJ) issued an initial decision and found no discrimination. The AJ found that petitioner was unable to establish a prima facie case of discrimination based on his back injury, personality disorder, or hearing impairment, as his back injury and personality disorder had nothing to do with his removal, and the Petitioner conceded that he knew he was not to smoke inside a paint booth. The AJ further found that the Petitioner was unable to establish a prima facie case of racial discrimination. When Petitioner requested the MSPB review the initial decision, the MSPB denied the request on the grounds that it failed to meet the statutory criteria for review. Petitioner then filed a petition for review with the EEOC’s Office of Federal Operations (OFO).

On review, the OFO held that the Petitioner was unable to show that his removal was motivated by race or reprisal rather than the seriousness of the Petitioner’s misconduct. The OFO further held that even assuming that the Petitioner’s physical and psychological impairments qualified him as an individual with a disability, the evidence failed to show that his removal was disability discrimination because he was removed for his unsafe actions, not for any alleged disability. The OFO concurred with the MSPB’s finding of no discrimination.

Adams v. Department of the Navy, EEOC Petition No. 03980099 (February 26, 1999) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/03980099.txt

Attorney Kirk J. Angel represents federal employees in claims before the EEOC and MSPB.