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EEOC finds federal employee failed to prove discrimination or retaliation. Petitioner alleged he was subjected to discrimination on the basis of disability (physical and mental) and reprisal for prior protected Equal Employment Opportunity (EEO) activity when he was removed from his position for failing a critical element of his performance standards. Prior to his allegations, Petitioner was issued a “Conduct Memorandum” for failure to adhere to proper procedures and for not following through with customer service requests, and eventually put on a Performance Improvement Plan (PIP) because there had been a number of complaints from various customers regarding their inability to obtain assistance from him. During an in-person meeting with his Director, the Petitioner indicated that he had more work than could be completed in an eight-hour day. In response, the Directed asked the Petitioner to provide documentation to support this claim, which he failed to do. Following the completion of the PIP, Petitioner’s supervisor recommended terminating his employment because a significant number of customers continued to complain about the lack of service provided by the Petitioner, and ultimately the Petitioner was removed from employment. Petitioner appealed his removal to the Merit Systems Protection Board (MSPB), but did not request a hearing so the initial decision was based on the written record. Finding that the Agency had followed all relevant standards, the Administrative Judge (AJ) upheld the Petitioner’s removal. The AJ also considered the Petitioner’s claims of disability discrimination based on reasonable accommodation, disparate treatment, and disparate impact, and held that although all of these claims had different elements of proof, they all required proof of disability which Petitioner had failed to show. Further, the AJ found that Petitioner had not raised an appropriate disparate treatment claim as Petitioner failed to show that other VA employees not of his protected bases who were failing their performance standard were treated with more lenience. Additionally, the AJ determined that Petitioner failed to show that he was subjected to retaliation but rather had only disagreed with the assignments given to him by his supervisor. The Petitioner then appealed to the Equal Employment Opportunity Commission’s (EEOC’s) Office of Federal Operations (OFO) for reconsideration.

On appeal, the OFO held that even if it assumed for the sake of argument that Petitioner established prima facie cases of reprisal and disability discrimination, the Agency articulated a legitimate, nondiscriminatory reason for its action- namely, that Petitioner was removed from his position for failing the critical element of customer service in his performance standards. The OFO further held that the record showed that the Agency was not aware of Petitioner’s disability and that he never requested a reasonable accommodation and that the removal process was well underway prior to Petitioner filing an EEO complaint. Additionally, the OFO held that the fact that the Agency attempted to assist him in improving his work makes it less likely that any sort of reprisal was involved. The OFO concurred with the MSPB’s finding of no discrimination.

Paul Egri- Hendler v. Department of Veteran Affairs, EEOC Petition No. 0320120055 (November 28, 2012) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0320120055.txt

Kirk J. Angel represents federal employees in EEO investigations and EEOC hearings.