EEOC finds federal employee offered no evidence to support discrimination claim. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination on the bases of disability (learning disability) and in retaliation for prior EEO activity when he was issued a Letter of Warning (LW) charging him with failure to satisfactorily perform his duties as a clerk, he has been required to work numerous split shifts which exceeded the 12-hour maximum, and he was issued a LW charging him with failure to satisfactorily perform his duties and failure to follow instructions. Complainant attempted several times to pass the required trainings and examinations in order to become a Window Clerk rather than a Part Time Flexible Mail Processing Clerk. After failing to meet the requirements twice, a Settlement Agreement (SA) was entered in which the Complainant would be given a third opportunity to complete and pass all the requirements. During this third attempt, Complainant revealed to the Agency that he had a learning disability and needed extra tutoring and attempts to pass, and requested a reasonable accommodation for said disability. Following the initial investigation, the Administrative Judge (AJ) issued a decision without a hearing which the Agency adopted stating Complainant failed to prove he was subjected to discrimination as alleged. Despite eventually producing evidence showing he received special education services and a psychological evaluation stating weaknesses in the area of verbal concept formation, logical thinking, and special organizational defects, the AJ found that Complainant had failed to show he was disabled under the Rehabilitation Act because the disabilities did not substantially limit a major life activity. The AJ further found that even if the Complainant had established that he was an individual with a disability, the Agency had articulated a legitimate non-discriminatory reason for its actions. The Agency adopted the AJ’s decision finding no discrimination, and the Complainant appealed to the Equal Employment Opportunity Commission (EEOC).

On appeal, the EEOC’s Office of Federal Operations (OFO), first held they found it appropriate for the AJ to have issued a summary judgment as there were no genuine issues of material fact in dispute. The OFO further found that the AJ’s holding regarding the allegation of disability discrimination was correct because the Complainant was unable to provide evidence of any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Finally, the OFO held that Complainant offered no evidence to rebut the Agency’s insistence that it did not unlawfully deny his accommodation requests. The court affirmed the Agency’s final action finding no discrimination.

Villemaire v. United States Postal Service, EEOC Appeal No. 0120054578 (February 28, 2007)  https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120054578.txt