Reynaldo Alvara v. Department of Homeland Security , 2014 MSPB 63 ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 63
Docket No. DA-0752-10-0223-E-1
EEOC Petition No. 0320110053
Reynaldo Alvara,
Appellant,
v.
Department of Homeland Security,
Agency.
August 13, 2014
Gary M. Gilbert, Esquire, and Julie E. Rook, Esquire, Silver Spring,
Maryland, for the appellant.
Lamont D. Nahrgang, Esquire, and Peter Arcuri, El Paso, Texas, for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND CERTIFICATION ORDER
¶1 The Equal Employment Opportunity Commission (EEOC) has referred this
appeal of the appellant’s removal to the Board for further consideration pursuant
to 5 U.S.C. § 7702 (b)(5)(B) because the EEOC’s decision differs from the
Board’s decision in this case. For the following reasons, we conclude that, as a
matter of law, the EEOC’s decision is based upon an incorrect interpretation of
civil service law, rule, or regulation. In the alternative, we find that the evidence
in the record does not support the EEOC decision and that the EEOC decision is
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so unreasonable that it amounts to a violation of civil service law, rule, or
regulation. Thus, the Board cannot agree with the EEOC’s decision. We
therefore REAFFIRM our prior decision. See 5 U.S.C. § 7702 (c)(2); 5 C.F.R.
§ 1201.162 (a)(2).
BACKGROUND
¶2 The appellant, a GS-11 Customs and Border Protection Officer (CBPO),
suffers from sleep apnea, a permanent condition which requires him to get 8
hours of sleep and which he claims precludes him from working the graveyard
shift or performing substantial amounts of overtime, both essential functions of
his position. Initial Appeal File (IAF), Tab 7b at 41, 80-88, 89-102. The agency
informally accommodated him for some time, but, when a new Port Director was
appointed, she began to examine the workload assignment situation, specifically,
the number of CBPOs who, for a variety of reasons, were on light duty, and she
found that the appellant could not perform the full range of his duties. In
response to his request for accommodation, she found that not requiring him to
work the graveyard shift and substantial overtime on a permanent basis was not a
reasonable accommodation. Id. She directed the agency to undertake a search
for other suitable positions within the appellant’s commuting area that he could
perform, but none were found. She offered to extend the search outside the
commuting area, but the appellant declined. IAF, Tab 7a at 65, 41-42.
Accordingly, she effected his removal for physical inability to perform. Id.
at 39-41.
¶3 On appeal, the appellant alleged disability discrimination, arguing that the
agency failed to reasonably accommodate his disability by not allowing him to
work a stable schedule. Id., Tab 1. The appellant’s request for relief included,
inter alia, a claim for compensatory damages. Id. at 2.
¶4 In her initial decision affirming the agency’s action, the administrative
judge sustained the charge. Id., Tab 28, Initial Decision (ID) at 8-9. In
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addressing the appellant’s claim of disability discrimination, she found that he is
disabled, ID at 10, but that he failed to establish that he is a “qualified individual
with a disability” because he did not show that he can perform the essential
functions of his position with or without accommodation, ID at 22. Finding that
the accommodation he requested, not having to work rotational shifts and
overtime, was a request to change the essential functions of his job, the
administrative judge relied on Bouffard v. Department of Homeland Security,
EEOC Appeal No. 0120065257, 2008 WL 276452 (E.E.O.C. Jan. 16, 2008) (the
ability to work rotational shifts and overtime is an essential function of the CBPO
position, and the accommodation of not having to work rotational shifts and
overtime is in essence a request to change the essential function of the job which
the agency is not required to do). ID at 22. The administrative judge found that
no vacant position was available within the appellant’s commuting area and that
he had not agreed to the agency’s offer of an expanded search. ID at 23. The
administrative judge concluded that the appellant had failed to identify any
reasonable accommodation that would have allowed him to continue working and
that he therefore did not establish disability discrimination. ID at 23. She then
found that the agency showed that its action promoted the efficiency of the
service and that removal was a reasonable penalty for the sustained charge. ID
at 24-25.
¶5 On petition for review, the appellant argued that the administrative judge
erred in finding that the ability to work the graveyard shift and substantial
overtime are essential functions of his position and that his inability to perform
those tasks precluded him from being a qualified individual with a disability.
Petition for Review File, Tab 5 at 13-29. The appellant also argued that the
agency failed to establish that his requested accommodation would pose an undue
hardship for the agency. Id. at 29-32.
¶6 The Board upheld the administrative judge’s decision, finding that she
properly determined that the appellant could not perform the essential functions
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of a CBPO. Alvara v. Department of Homeland Security, 116 M.S.P.R. 627 ,
¶¶ 7-13 (2011). The Board concurred with the EEOC’s determination in Bouffard
that the ability to work rotational shifts and overtime were essential functions of
the job, and that, because the appellant could not perform those functions with or
without accommodation, he did not establish that he is a qualified individual with
a disability. Id., ¶¶ 8-10. Based on this finding, the Board found it unnecessary
to consider the next level of inquiry, namely, whether providing the appellant a
modified work schedule would pose an undue hardship. Id., ¶ 14.
¶7 The appellant filed a petition for EEOC review of the Board’s findings.
See 5 U.S.C. § 7702 (b)(1); 5 C.F.R. § 1201.157 . The EEOC found that Bouffard
did not adhere to the EEOC’s Enforcement Guidance and precedential federal
sector cases in its analysis of the essential functions of a CBPO, and that it was
wrongly decided on that point. Alvara v. Department of Homeland Security,
EEOC Petition No. 0320110053 at 6 of 12 (July 10, 2014). As such, the EEOC
overturned that portion of Bouffard. Because the Board relied on Bouffard in
finding that the essential functions of a CBPO include working rotational shifts
and significant amounts of overtime, the EEOC found that the Board’s analysis
was in error and that its decision constituted an incorrect interpretation of
applicable policy directives and Enforcement Guidance, id., and it concluded that
the appellant is qualified and can perform the fundamental job duties of a CBPO,
id. at 7. Although the Board had not made a finding on undue hardship, the
EEOC found that it could do so, given that the record was adequately developed.
Id. The EEOC then found that the agency failed to show that modifying the
appellant’s work schedule would cause undue hardship, and it concluded that the
agency erred in denying the appellant’s reasonable accommodation request to
work between the hours of 6:00 a.m. and midnight and in removing him. Id. at 8.
The EEOC thus differed with the Board’s decision, which found no disability
discrimination. Id. at 1.
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ANALYSIS
¶8 The EEOC decision, to which we are asked to defer, is unreasonable both
from a legal and a management/operational perspective. At its core, the EEOC
decision fundamentally addresses not an interpretation of discrimination law, but
rather an agency’s ability to determine the essential functions of any given
position, in this case, a law enforcement officer position.
¶9 To recapitulate, a unanimous Board held in Alvara v. Department of
Homeland Security, 116 M.S.P.R. 627 (2011), that the ability to work the
graveyard shift and significant overtime was an essential function of the CBPO
position for purposes of the relevant disability discrimination regulation defining
a qualified individual with disability.
¶10 We did so based on the well-reasoned decision of the EEOC in Bouffard v.
Department of Homeland Security, EEOC Appeal No. 0120065257, 2008 WL
276452 (E.E.O.C. Jan. 16, 2008), which held that the ability to work rotational
shifts and overtime are essential functions of the position, and the
accommodation of not having to work rotational shifts and overtime is, in
essence, a request to change the essential functions of the job, which the agency
is not required to do. 1 The EEOC has now determined that Bouffard, or at least
the portion heavily relied upon by the Board in finding that “the essential
functions of a Customs and Border Protection Officer include working rotating
shifts and significant amounts of overtime,” was wrongly decided. Alvara, EEOC
Petition No. 0320110053 at 6 of 12.
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Both the Board and the EEOC agree that, in order to reasonably accommodate an
individual, the agency need not restructure a job to eliminate its essential functions.
See Burch v. City of Nacogdoches, 174 F.3d 615. 621 (5th Cir. 1999) (the Americans
with Disabilities Act “does not require an employer to relieve an employee of any
essential functions of . . . her job, modify those duties, reassign existing employees to
perform those jobs, or hire new employees to do so”); Johnson v. U.S. Postal Service,
120 M.S.P.R. 87, ¶ 10 (2013); see also EEOC Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act at 13,
19.
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¶11 More importantly, we based our decision on our knowledge of civil service
law. Under the mixed case system governed by 5 U.S.C. § 7702 , the Board
generally must defer to the EEOC’s interpretation of discrimination law. E.g.,
Hooper v. Department of the Interior, 120 M.S.P.R. 658 , ¶ 6 (2014); Wingate v.
U.S. Postal Service, 118 M.S.P.R. 566 , ¶ 7 (2012). Likewise, when the EEOC
has reasonably interpreted a point of discrimination law, the Board cannot
properly apply a different interpretation merely because the Board’s
interpretation is also reasonable. Cf. Fulman v. United States , 434 U.S. 528 ,
534-36 (1978) (a reasonable interpretation of a statute by the agency primarily
charged with its administration is entitled to deference, even when there is a
competing interpretation that is also reasonable).
¶12 However, the Board need not defer to the EEOC’s interpretation of what
constitutes a civil service law, rule, or regulation, the interpretation of which falls
squarely within the purview of the Board’s area of expertise. 2 Archerda v.
Department of Defense, 2014 MSPB 49, ¶ 28 (citing Southerland v. Department
of Defense, 119 M.S.P.R. 566 , ¶ 20 (2013) (the Board generally defers to the
EEOC on issues of substantive discrimination law unless the EEOC’s decision
rests on civil service law for its support or is so unreasonable that it amounts to a
violation of civil service law)); Miller v. Department of the Army, 121 M.S.P.R.
189 , ¶ 13 n.4 (2014) (same). The relationship between the Board and the EEOC
is reflected in the statutory due deference a Special Panel should give to the
respective expertise of the Board and the EEOC. 5 U.S.C. § 7702 (d)(2)(B); see
King v. Lynch, 21 F.3d 1084 , 1088 (Fed. Cir. 1994) (the court distinguished
between discrimination laws and civil service laws by comparing
section 7702(b)(3)(B)(i), which references the discrimination laws set out in
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See generally Bain v. Office of Personnel Management, 978 F.2d 1227, 1231-32 (Fed.
Cir. 1992) (because the court traditionally upholds an agency’s reasonable construction
of a statute it administers, the court deferred to the Board’s affirmance of the Office of
Personnel Management’s classification of petitioners as intermittent employees).
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subsection (a)(1)(B), with section 7702(c)(2), which references the “civil service
laws, rules, regulations, and policy directives”) .
¶13 Under civil service law, CBPOs are classified as law enforcement officers.
They are charged with the safety and security of the American people, protecting
the country’s borders from terrorism, intercepting the smuggling of humans,
drugs and other contraband, preventing illegal migration and the entry of
agricultural pests, and facilitating the flow of legitimate trade and travel. The
special nature of these jobs is why law enforcement officers are treated
differently from other civil servants in everything from essential functions to
retirement calculations. See, e.g., 5 U.S.C. § 8331 (2); 5 U.S.C. § 8401 (17)
(definitions of “law enforcement officer” for retirement purposes under the Civil
Service Retirement System and the Federal Employees’ Retirement System,
respectively); 5 U.S.C. § 3307 (providing that agencies may set a maximum age
limit for an original appointment to law enforcement officer positions such
as CBPOs).
¶14 As with any law enforcement officer organization, exigent circumstances
obviously will require the occasional performance of duties during the graveyard
shift and/or during overtime. For every officer who cannot perform these
essential functions, others will be required to meet these responsibilities. See,
e.g., Silk v. City of Chicago, 194 F.3d 788 , 796-97 (7th Cir. 1999) (coworkers
were angry at a police officer who was allowed to work only day shift and light
duty assignments due to severe sleep apnea, especially given that he also was able
to work a night job teaching classes at a local university).
¶15 The EEOC now asks us to second guess the employing agency in what is an
essential function of this position. We refuse to do so. To that end, we note that
the Americans with Disabilities Act does not define the term “essential
functions.” Regulations interpreting the Act, however, provide that “essential
functions” means “the fundamental job duties of the employment position the
individual with a disability holds or desires,” as distinguished from “marginal
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functions.” 29 C.F.R. § 1630.2 (n)(1). Determining whether a particular function
is “essential” or not is generally a factual inquiry, reserved for the finder of fact
on a case-by-case basis. Bartee v. Michelin North America, Inc., 374 F.3d 906 ,
915 (10th Cir. 2004); Turner v. Hershey Chocolate U.S., 440 F.3d 604 , 612 (3d
Cir. 2006). Absent evidence of discriminatory animus, the Board “generally
give[s] substantial weight to the employer’s view of job requirements.” Ward v.
Massachusetts Health Research Institute, Inc., 209 F.3d 29 , 34 (1st Cir. 2000).
“In other words, [the Board’s] inquiry into essential functions ‘is not intended to
second guess the employer or to require the employer to lower company
standards.’” Mulloy v. Acushnet Co., 460 F.3d 141 , 147 (1st Cir. 2006) (quoting
Mason v. Avaya Communications, Inc., 357 F.3d 1114 , 1119 (10th Cir. 2004)).
¶16 The practice of second guessing also runs contrary to the EEOC’s recent
case law suggesting that it is an agency’s ultimate responsibility to determine
what an essential function of a job is. According to the EEOC, in ***,
Complainant v. U.S. Postal Service, EEOC Appeal No. 0120080613, 2013 WL
8338375 (Dec. 23, 2013):
The essential functions are the duties of a job - i.e., the outcomes
that must be achieved by the person in the position. Once an agency
identifies the essential functions for a position, the agency can then
put in place qualification standards, selection criteria, or employment
tests that are designed to determine whether an employee or
applicant can perform those essential functions.
Id. (italics added).
¶17 Based on the foregoing, we find no compelling reason to defer to the
EEOC’s decision. See Garcia v. Department of Homeland Security, 437 F.3d
1322 , 1347 n.5 (Fed. Cir. 2006). Accordingly, we conclude that as a matter of
law the EEOC decision is based upon an incorrect interpretation of civil service
law, rule, or regulation. In the alternative, we find that the evidence in the record
does not support the EEOC decision, and the EEOC decision is so unreasonable
that it amounts to a violation of civil service law, rule, or regulation. Thus, the
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Board cannot agree with the EEOC decision. We therefore REAFFIRM our prior
decision. See 5 U.S.C. § 7702 (c)(2); 5 C.F.R. § 1201.162 (a)(2).
CERTIFICATION
¶18 Having found as a matter of law that the decision of the EEOC in this
appeal constitutes an incorrect interpretation of civil service law, or in the
alternative, that the evidence in the record does not support the EEOC decision or
that the EEOC decision is so unreasonable that it amounts to a violation of civil
service law, we hereby CERTIFY this case to the Special Panel under 5 U.S.C.
§ 7702 (d)(1). See Ignacio v. U.S. Postal Service, 30 M.S.P.R. 471 , 477 (Spec.
Pan. 1986).
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.