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EEOC upholds MSPB decision finding no discrimination in a federal employee removal case. Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC) for review of the Merit Systems Protection Board’s (MSPB) final decision on her case of discrimination on the bases of sex (female), age (56), and disability (situational depression) when she was removed from her position. Following a hearing, the MSPB Administrative Judge (AJ) issued an initial decision sustaining the removal and finding that Petitioner had not established discrimination. Specifically, the AJ found that Petitioner did not establish that she was disabled. Petitioner then petitioned the EEOC’s Office of Federal Operations for reconsideration.

On reconsideration, the OFO noted that Petitioner’s removal was the culmination for a series of events including her refusal to attend Entry Specialist training on three separate occasions. Finding the Physician’s note stating that for medical reasons it would be better if Petitioner did not go to the training trips insufficient to excuse her from training, the Agency asked for more detailed information regarding her condition which Petitioner failed to provide. The OFO held that Petitioner failed to establish a prima facie case of sex or age discrimination, finding that she was unable to show that she was treated differently than similarly situated individuals outside her protected category. The OFO further held that Petitioner was unable to establish that she had an actual disability and therefore could not establish that she was discriminated against based on disability. The OFO concurred with the FAD finding no discrimination.

Ute Baker v. Department of Treasury, EEOC Petition No. 03990088 (March 30, 2000) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/03990088.x.txt