Alvara v. Department of Homeland Security
| Decision Date | 13 August 2014 |
| Docket Number | EEOC Petition 0320110053,DA-0752-10-0223-E-1 |
| Citation | 2014 MSPB 63 |
| Parties | Reynaldo Alvara, Appellant, v. Department of Homeland Security, Agency. |
| Court | Merit Systems Protection Board |
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
¶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 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).
¶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 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) (). 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 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.
¶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.
¶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) ().
¶12 However, the Board need not defer to the EEOC's interpretation of what constitutes a civil service law, rule or regulation, the...
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