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EEOC concurs with MSPB finding no discrimination. Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC) asking for a review of the Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discriminated on the basis of disability (physical) when the agency granted his application for disability retirement without first requiring his employing agency to provide certification of its efforts to reasonable accommodate his disability. Petitioner argued that this failure amounted to him being denied a waiver of his resulting obligation to repay monies was overpaid under the Federal Employees’ Retirement System (FERS). Previously, when Petitioner submitted his Agency Certification of Reassignment and Accommodation Efforts, a Human Resources Specialist certified that a reasonable accommodation would not be possible for the Petitioner based on the severity of his medical condition and the physical requirements of the position. Petitioner was then told he needed to apply for social security benefits and that his annuity would be reduced by his social security benefits as he was not yet 62. Eventually the Social Security Administration (SSA) informed the petitioner that he had been overpaid by over $18,000 and his benefits were to be adjusted accordingly. At the hearing reconsidering the payment adjustments, the MSPB Administrative Judge (AJ) found there was no connection between petitioner’s disability claim in the processing of his disability retirement application and the determination that he had been overpaid retirement benefits subjecting him to a repayment schedule- in essence, that Petitioner failed to show that agency official were motivated by discriminatory animus.

The petitioner then appealed arguing his requirement to repay should be waived because the Agency failed to attach the required documentation to his benefits application. On appeal, the EEOC’s Office of Federal Operations (OFO) found that the AJ’s rulings were proper, holding that the record did not support the Petitioner’s contention that the Agency’s inaction in not requiring more medical documentation in the processing of his disability retirement was a result of disability discrimination.

Trabke v. Office of Personnel Management, EEOC Petition No. 0320080065 (June 27, 2008) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0320080065.txt

Attorney Kirk J. Angel represents federal employees in hearings before both the EEOC and the MSPB. You can set your own free 15 minute consultation with him today right on this website.