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EEOC disagrees with MSPB analysis while upholding final decision in favor of federal agency. Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination. Petitioner alleged discrimination on the bases of disability and age when his waiver of a Social Security Administration (SSA) overpayment was not waived. After the MSPB denied the Petitioner’s review by the full board and affirmed the MSPB Administrative Judge’s (AJ) initial decision finding there was no basis to disturb the initial decision, the Petitioner appealed to the EEOC’s Office of Federal Operations (OFO) for review.

On review, the OFO held that although the MSPB’s AJ had erred by applying the wrong analysis to the fact pattern, the conclusion reached was still accurate. Even assuming the Petitioner established a prima facie case of discrimination, the Agency provided legitimate non-discriminatory reason regarding the annuity overpayment, and the Petitioner presented no persuasive evidence of discriminatory animus surrounding the determination of his eligibility for SSA disability benefits, or the calculation of the overpayment amount. The OFO concurred with the final decision of the MSPB finding no discrimination.

Petitioner v. Office of Personnel Management, EEOC Petition No. 0320160057 (November 4, 2016) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0320160057.txt

Kirk J. Angel is an attorney who represents federal employees in proceedings before the EEOC and MSPB. You can set a free 15 minute consultation with him right on this website.