EEOC confirms MSPB finding of no discrimination against federal employee. Petitioner filed a petition with the Merit Systems Protection Board (MSPB) alleging discrimination on the basis of sex (male), age, disability, and retaliation. The Administrative Judge (AJ) for the MSPB dismissed the appeal for lack of jurisdiction, finding that the petitioner’s absence did not constitute a constructive suspension as alleged. On petition for review to the full MSPB, the petitioner disputed the AJ’s jurisdictional dismissal. The full MSPB found that the Agency had constructively suspended him for a 3.5-month period, and remanded the appeal to an MSPB AJ to decide the discrimination claims. The new AJ issued a decision sustaining the Agency’s action and finding the Agency did not engage in discrimination as alleged, because the petitioner failed to establish a prima facie case because he was not a “qualified individual” with a disability. After his request for review by the full Board was denied, Petitioner submitted a petition for reconsideration with the Equal Employment Opportunity’s (EEO) Office of Federal Operations (OFO).

On review, the OFO held that by failing to meet his burden of persuasion to justify a finding that his impairments rose to a level of disability that substantially limits a major life activity, Petitioner was not entitled to disability protections, and therefore his disability claim failed. The OFO further held that the sex discrimination claim was properly dismissed, and that even assuming the petitioner had established a prima facie case of retaliation, the Agency had provided a legitimate nondiscriminatory reason for its actions. The OFO concurred with the final decision of the MSPB finding no discrimination.

Dwight A. Simonton v. United States Postal Service, EEOC Petition No. 03A10025 (March 29, 2001)

Kirk J. Angel represents federal employee in hearings before the EEOC and the MSPB.