                          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.

      1
        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

      2
        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).
                                                                                      7

      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
                                                                                         8

      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.
