EEOC concurs with MSPB finding no discrimination or retaliation against federal employee. Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination. The bases of the claim: was race (African American), color (dark brown), sex (female), age (over 40), disability, and retaliation for prior protected activity. Following the receipt of a Proposed Removal from the Agency listing 35 separate instances of tardiness, Petitioner was terminated for her chronic tardiness and then appealed to the MSPB concerning her removal. After the initial hearing the MSPB Administrative Judge (AJ) issued an initial decision finding that Petitioner failed to demonstrate that her removal was based on her disability when the Agency allegedly failed to accommodate her disability. The AJ determined that the Petitioner had failed to establish that she was disabled, and that even if she had, she failed to establish that she was a qualified individual with a disability. The AJ noted that the medical documentation indicated that Petitioner was incapable of performing her job functions when her undisclosed condition flared up, and overwhelming evidence indicated that Petitioner’s chronic tardiness resulted from her lengthy and unpredictable commute- not any disability. The AJ also noted that many individuals at the Agency had attempted to engage in the interactive process for reasonable accommodations but the Petitioner failed to provide the requested information in order to grant her requested accommodation. Petitioner then appealed to the EEOC’s Office of Federal Operations (OFO) for reconsideration.

During reconsideration, the OFO noted that although Petitioner provided two statements from social workers working with her for her depression and anxiety that stated that work-related stress was contributing to her difficulties sleeping and concentrating, the statements did not address Petitioner’s requested reasonable accommodations. Specifically, Petitioner’s medical documentation failed to address a nexus between the requested accommodations and her disabilities outside of Petitioner’s self-reporting. Evidence showed that the Agency repeatedly asked Petitioner to provide the requested medical documentation and that Petitioner failed to do so. Regarding the discrimination claims, the OFO held that even if Petitioner had established a prima facie case of discrimination, the Agency articulated a legitimate nondiscriminatory reason for her removal- specifically her unacceptable attendance. The OFO concurred with the final decision of the MSPB finding no discrimination.

Catrice M. v. Office of Personnel Management, EEOC Petition No. 2020002037 (December 29, 2020) https://www.eeoc.gov/sites/default/files/decisions/2021_08_16/2020002037.pdf