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EEOC upholds MSPB decision on federal employee case. Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC) asking for a review of a Final Order from the Merit Systems Protection Board (MSPB) concerning her claim of discrimination. The initial complaint was filed with the MSPB alleging discrimination on the bases of race (African American), disability (migraines and depression), and reprisal for prior protected activity when the Agency removed her from her position for “unacceptable behavior”. The record revealed that during a discussion with her supervisor, Petitioner made the following statements: “Someone needs to take Stephanie [Petitioner’s own first name] to the Occupational Health clinic because Stephanie is either going to commit suicide or murder someone.”  When asked whether she wanted her husband contacted, Petitioner replied “Stephanie would not like that very much.”  The Training Department Head indicated that he had to secure assistance from both emergency medical and security personnel in response to Petitioner’s statements, following which the Agency proposed her removal and noted the instant incident was the fourth offense of the year. Following a video conference by the MSPB, the MSPB Administrative Judge (AJ) issued an initial decision finding no discrimination. Following the decision, Petitioner petitioned for review with the full MSPB Board, after which the full Board upheld the AJ’s findings. Petitioner then petitioned the EEOC’s Office of Federal Operations (OFO) for review.

On review, the OFO found that the MSPB’s decision constituted correct interpretations of laws, rules, regulations, and policies and found no errors in the decision. The OFO further noted that even assuming the Petitioner established a prima facie case of discrimination, she failed to establish that she was treated differently than any similarly situated individuals when the decision to remove her was made. The OFO continued to explain that an agency may discipline an individual with a disability for violating a workplace conduct standard, even if the misconduct resulted from a disability, provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity, and found that rules prohibiting threats of violence are job-related and consistent with business necessity. The OFO concurred with the MSPB’s finding of no discrimination.

Petitioner v. Department of the Navy, EEO Petition No. 0320140031 (March 4, 2015) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0320140031.txt

Attorney Kirk J. Angel represents federal employees in hearings before the EEOC and MSPB nationwide. If you are a current or former federal employee who needs representation in a EEOC or MSPB hearing, you can set a free 15 minute consultation with Attorney Angel right on this website.