MSPB finds for federal employee but EEOC does not.   Petitioner’s supervisor gave him a Notice of Unacceptable Performance and placed him on a Performance Improvement Plan giving him 90 days to improve his performance. Following the 90-day period, the Petitioner was removed from his position for failing to improve his performance. Petitioner filed a mixed case appeal with the Merit Systems Protection Board (MSPB) in which the MSPB Administrative Judge (AJ) reversed the Agency’s actions, finding that of the fifteen reports the supervisor reviewed in regards to the Petitioner, only two were actually “unacceptable”. The AJ noted that the Petitioner completed five evaluation reports after receiving the Performance Improvement Plan and was rated unacceptable for the entire period because one of the five reports did not meet acceptable standards. Although he found the Agency’s actions were improper, the MSPB AJ did not find that the actions were based on disability discrimination or in reprisal for prior protected Equal Employment Opportunity (EEO) activity. The Petitioner petitioned the Equal Employment Opportunity Commission (EEOC) to review the MSPB AJ’s finding of no disability discrimination or reprisal for prior protected activity.

The EEOC held that assuming the Petitioner established a prima facie case of disability and reprisal discrimination, the Agency articulated a legitimate nondiscriminatory reason for its actions. The Agency was able to show that Petitioner had been put on two previous Performance Improvement Plans and was removed from his position based on his performance during his most recent plan. Further, the EEOC held that the Petitioner was unable to prove that he had a disability that substantially limited a major life activity or was regarded as having such a disability. The EEOC concurred with the final decision of the MSPB finding no discrimination.

Silva v. National Credit Union Administration, EEOC Petition No. 03A10087 (March 8, 2002) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/03A10087.txt

Federal employee attorney Kirk J. Angel handles cases before the MSPB and the EEOC. He offers a free 15 minute consultation to federal employees.