EEOC finds federal employee has a disability but not within the meaning of the law. Petitioner filed with the Equal Employment Opportunity Commission (EEOC) a petition for review of a decision issued by the Merit Systems Protection Board (MSPB). The MSPB had issued a decision finding no disability discrimination. Petitioner alleged he was not allowed to take a break after 2.5 hours of work as per his physician’s orders ( including no standing or sitting for more than 2-3 hours). Following the denial of the break, Petitioner allegedly shouted back at his supervisor, beat on the check stand with his fists and screamed at his supervisor, shook his fingers in his supervisor’s face, and threatened the supervisor. Based on these incidents and his past disciplinary record, the Agency removed Petitioner from his position, and Petitioner appealed the removal to the MSPB arguing that the Agency failed to accommodate his disability and knew that failure to provide his break would result in irritability. The MSPB’s Administrative Judge sustained the Agency’s decision and upheld the Petitioner’s removal finding that the Petitioner failed to establish a prima facie case of disability discrimination because he failed to establish that he was a qualified individual with a disability. The MSPB AJ also noted that the Agency complied with the reasonable accommodation citing that Petitioner reported to work at 9:00 am and was allowed to take a break by 12:00p pm, within the 2-3 hour limitation set by the physician. Finally, the MSPB AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its removal of the Petitioner- namely his disrespectful and discourteous conduct and use of abusive language toward his supervisor. Petitioner appealed to the Equal Employment Opportunity Commission (EEOC)

On appeal, the EEOC’s Office of Federal Operations (OFO) held that the Petitioner was an individual with a disability; however, the OFO agreed with the MSPB AJ’s finding that the Petitioner’s impairment does not rise to the level of a disability that substantially limits a major life activity, and therefore the Petitioner was not a qualified individual with a disability. The OFO further held that there was no nexus shown between the Petitioner’s condition and the behavior he exhibited, and noted that the Rehabilitation Act does not stop an Agency from enforcing standards of conduct as long as such standards are job-related, consistent with business necessity, and enforced uniformly among all employees. The OFO held that in this instance the Agency terminated the Petitioner for violating a standard of employee work place conduct that bars insubordination by employees, a standard that is by definition job-related and consistent with business necessity. The OFO concurred with the MSPB’s finding of no discrimination.

Robert W. Bing v. Department of the Navy, EEOC Petition No. 03990061 (February 1, 2000)

Attorney Kirk J. Angel represents federal employees throughout the USA.