EEOC upholds MSPB decision. Petitioner filed an appeal with the Merit Systems Protection Board (MSPB) alleging discrimination on the basis of disability (fibromyalgia) when she was removed from her position at the Agency’s VA Medical Center. During the appeal, the MSPB found that her removal was based on four charges: (1) careless or negligent work resulting in waste and delay; (2) unauthorized possession of a controlled substance; (3) unauthorized use of a controlled substance; and (4) concealment of facts and interference with an investigation. Because the Petitioner did not request a hearing, the MSPB Administrative Judge (AJ) issued an initial decision based on the written record finding no discrimination. The MSPB AJ found that instead of working, Petitioner made personal phone calls instead of working and did not complete 41 waivers in a timely manner. The MSPB AJ further found that Petitioner purchased Clonazepam pills from a former Agency employee in the parking lot, noting that although she had a prescription for the drug, she was not authorized to possess the pill she purchased from the former employee and therefore her use of said pill was also not authorized. The MSPB AJ found that the Petitioner was a person with a disability; however, the MSPB AJ held that she failed to prove she was a qualified person with a disability under the circumstances of the appeal, quoting language from the Americans with Disabilities Act stating that a qualified person with a disability “shall not include any employee … who is currently engaging in the illegal use of drugs, when the [employing agency] acts on the basis of such use.” Petitioner filed a petition for review by the full Board which was denied, noting that Petitioner’s main arguments dealt with credibility and not issues of law. Petitioner then filed a petition with the Equal Employment Opportunity Commission’s (EEOC) Office of Federal Operations (OFO).

The OFO agreed with the MSPB’s decision finding that Petitioner did not establish that her removal constituted unlawful disability discrimination. The OFO further stated that because the Petitioner did not request a hearing with the opportunity to cross examine witnesses, the Commission’s scope of review is limited to Petitioner’s allegation of discrimination- not credibility. The OFO held that the MSPB correctly held that Petitioner failed to establish discrimination on the basis of disability, and Petitioner did not introduce any evidence to show that others who engage in similar misconduct were not disciplined or removed. The OFO further held that even if Petitioner did not actually engage in the alleged misconduct, she failed to establish that the Agency removed her because of her stated disability. The OFO concurred with the final decision of the MSPB finding no discrimination, holding that it constitutes a correct interpretation of the laws, rules, regulations, and policies governing the matter.

Bogumill v. Department of Veterans Affairs, EEO Petition No 0320110020 (May 26, 2011)

Attorney Kirk J. Angel represents federal employees in hearings before the EEOC and MSPB. You can set your free 15 minute consultation with him right on this website.