EEOC finds no discrimination where federal employee did not advise of disability until after termination. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination on the basis of disability (depression). He alleged the discrimination occurred when he was terminated from his position of Nursing Assistant during his probationary period. Complainant stated he suffered a major depression due to the sudden death of his 16-year-old son in a car accident and requested the Agency offer him a reasonable accommodation for his mental disability in lieu of a termination. During the relevant time, the Complainant received probationary evaluations of his work performance three separate times and was rated satisfactory in all areas, and a final review performance rating of successful. The record showed that following the first six-month evaluation, Complainant was the subject of various complaints concerning patient’s care and customer service, rough treatment and inadequate bathing of patients, failure to change dressings, not rendering prescribed treatment, annoying actions, disrespectful attitude, and taking too many breaks. Complainant then received a fourth evaluation during his probationary period and was rated unsatisfactory and his supervisors recommended that Complainant not be retained beyond the probationary period. After being informed he would not be retained, Complainant requested through his attorney that rather than being terminated he be offered a reasonable accommodation for his disability. Following the initial investigation, the Agency issued a Final Agency Decision (FAD) finding no discrimination. Complainant then appealed to the Equal Employment Opportunity Commission (EEOC).

On appeal the EEOC’s Office of Federal Operations (OFO) noted that the Complainant did not inform the Agency of his disability or request an accommodation until after he was issued a letter of termination, and further noted that it is the responsibility of the disabled party to request a reasonable accommodation when he knows there is a barrier that is preventing him from performing his job. The OFO further held that an employer is not barred from imposing discipline or terminating an employee who, because of a disability, violated a conduct rule that is job-related and consistent with business necessity. Assuming the Complainant was a qualified individual with a disability, the Agency met its burden of production in regard to the termination by articulating legitimate, nondiscriminatory reasons for its actions- namely unsatisfactory performance. The OFO affirmed the Agency’s final decision finding no discrimination.

Patrick J. McCaffrey V. Department of Veterans Affairs, EEOC Appeal No. 01A41695 (September 12, 2005)