EEOC upholds MSPB finding of no discrimination in federal employee removal. Petitioner filed a petition with the Merit Systems Protection Board (MSPB) alleging discrimination on the bases of sex (female), disability (PTSD, depression, anxiety, panic attacks), and reprisal. Petitioner challenged the Agency’s decision to remove based on her inability to perform the essential functions of her position. The decision to remove Petitioner was rescinded four days later when the Agency cited procedural irregularities. After the hearing, the MSPB Administrative Judge (AJ) issued an initial decision finding that Petitioner received a reasonable accommodation until she disclosed she was no longer able to perform the essential functions of her position, so steps to remove her were initiated. The AJ also found that Petitioner did not prove her affirmative defenses- namely that the legitimate reasons for the Agency’s actions were pretext, when it took the Agency 18 months to process the Petitioner’s request. Petitioner appealed to the Equal Employment Opportunity’s (EEO) Office of Federal Operations (OFO).

On appeal, the OFO held that although the AJ erred by not applying the correct analysis to the case, the outcome remains the same under the correct analysis- namely that Petitioner did not establish that the Agency discriminated against her. The OFO concurred with the final decision of the MSPB finding no discrimination.

Keturah F. v. Department of Veteran Affairs, EEOC Petition No. 2019001711 (June 4, 2019)