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EEOC upholds Final Agency Decision even though it disagrees with the Agency analysis. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination on the basis of disability (cervical and lumbar strain; chronic neck, back, and tail bone pain). The claim arose when she was issued a letter proposing termination of her employment unless she provided adequate medical documentation of her disability; the Agency refused to acknowledge her absence from work as leave without pay (LWOP) status, rather than absent without leave (AWOL) status thereby preventing her from applying for leaving sharing through the Agency’s leave bank; she was informed that her application for disability retirement had not been forwarded to the Office of Personnel Management (OPM) despite the fact that she requested such forwarding; and she was terminated from her position. Following the initial investigation the Agency issued its Final Agency Decision (FAD) in which the Agency conceded that Complainant was an individual with a disability and that Complainant had established a prima facie case of disparate treatment discrimination. However, the Agency found that it had established a legitimate non-discriminatory reason for its actions- namely that it repeatedly requested medical documentation to substantiate Complainant’s ongoing absence. Arguing that she provided all the requested documentation as quickly as she could, Complainant appealed to the Equal Employment Opportunity Commission’s (EEOC) Office of Federal Operations (OFO).

As an initial matter, the OFO held that the three of the claims should be construed as failure to accommodate claims, not discrimination claims. Analyzing the claims under a reasonable accommodation footprint, the OFO held that Complainant was not a qualified individual with a disability because she did not assert that there was any reasonable accommodation which would enable her to perform the essential functions of any position. Regarding the discrimination claims the OFO held that Complainant also failed to establish a prima facie case of disparate treatment because she was not a qualified individual with a disability. The OFO affirmed the Agency’s FAD finding no discrimination.

Cynthia L. Kemerer v. National Security Agency, EEOC Appeal No. 01993550 (February 21, 2002) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01993550.txt