EEOC concurs with MSPB finding no discrimination against federal employee.  Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC) asking for a review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of disability discrimination (chronic mechanical low back pain) when she was removed from her position. Petitioner, a federal employee, sought a reasonable accommodation for her alleged disability. The Agency’s Reasonable Accommodation Committee (RAC) determined that the Petitioner did not meet the definition of an individual with a disability. Following the decision, the Petitioner was scheduled for a fitness-for-duty examination where she was found fit for full duty as a Respiratory Therapist and told she could return to her duties. When Petitioner disagreed with the examination, she was temporarily moved to Pulmonary Service, but later instructed to return to full duty as a Respiratory Therapist. Believing she could not perform her duties, Petitioner refused, and the Agency proposed to reprimand Petitioner for being AWOL, inappropriate use of sick leave, and failure to follow proper leave requesting procedures. Following a reprimand and other behavioral issues with the Petitioner, Petitioner was removed from her position. An MSPB Administrative Judge (AJ) issued an initial decision affirming the Agency’s actions and finding that Petitioner failed to show she was discriminated against. The AJ concluded that Petitioner had not shown that she was denied a reasonable accommodation and had failed to meet her burden of proof on the affirmative defense of disability discrimination. Petitioner then filed a petition for review before the full Board, which ultimately upheld the AJ’s final decision. Petitioner then filed another petition to the EEOC’s Office of Federal Operations (OFO).

On review, the OFO found that assuming the Petitioner was a qualified individual with a disability, the record showed that she was in-fact given a reasonable accommodation, first by working in HR and then by working in the Pulmonary Service. She was not required to return to her position until her medical documentation showed that she was fully able to perform the duties of a Respiratory Therapist. The OFO found that Petitioner did not demonstrate that her removal was based on her disability and concurred with the final decision of the MSPB finding no discrimination.

Futrell-Rawls v. Department of Veterans Affairs, EEOC Petition No. 0320110038 (November 14, 2011)