                    UNITED STATES OF AMERICA
                         SPECIAL PANEL
                               2014 MSPB 77

                            MSPB Docket No.
                           DA-0752-10-0223-E-1

                             EEOC Petition No.
                               0320110053

                            Reynaldo Alvara,
                                Appellant,
                                     v.
                  Department of Homeland Security,
                                  Agency.
                            September 29, 2014

    Gary Gilbert, Esquire, Ernest C. Hadley, Esquire, Julie E. Rook, Esquire,
      and Shannon C. Leary, Esquire, Silver Spring, Maryland, for the
      appellant.

    Lamont D. Nahrgang, Esquire, and Peter Arcuri, El Paso, Texas, for the
      agency.

    Peter Broida, Esquire, as amicus curiae.


                                 BEFORE

                  Special Panel Upon Certification by the
                     Merit Systems Protection Board

                 Dennis P. Walsh, Chairman, Special Panel
Chai R. Feldblum, Commissioner, Equal Employment Opportunity Commission
      Anne M. Wagner, Vice Chairman, Merit Systems Protection Board
         Vice Chairman Wagner issues a separate dissenting opinion.
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                                      I. INTRODUCTION
¶1         On August 13, 2014, the Merit Systems Protection Board (MSPB or Board)
     certified this case to the Special Panel. The Board certified the matter to the
     Special Panel because it found that, when ruling on this case in Petitioner v.
     Department of Homeland Security, EEOC Petition No. 0320110053, 2014
     EEOPUB LEXIS 1810 (E.E.O.C. July 10, 2014) (hereinafter Commission
     Decision),   the    Equal   Employment      Opportunity    Commission      (EEOC       or
     Commission) incorrectly interpreted a provision of civil service law, rule, or
     regulation. See Alvara v. Department of Homeland Security, 121 M.S.P.R. 453
     (2014). The Board also found that the evidence in the record did not support the
     Commission’s decision and that the Commission’s decision is so unreasonable
     that it amounts to a violation of civil service law, rule, or regulation. Id., ¶ 17.
¶2         The Special Panel’s seminal case, Ignacio v. U.S. Postal Service, 30
     M.S.P.R. 471 (Spec. Pan. 1986), provides that the Special Panel has jurisdiction
     when the Board certifies a case pursuant to 5 U.S.C. § 7702(c)(2).             Ignacio
     provides that when the Board makes a certification under section 7702(c)(2) the
     Special Panel is required to accept jurisdiction. Id. “The Panel’s jurisdiction
     over this matter . . . establishes only one jurisdictional prerequisite, i.e., that the
     Board certify the matter to the Panel pursuant to 5 U.S.C. § 7702(d)(1).” Ignacio,
     30 M.S.P.R. at 476-77. Under that standard, the Special Panel has jurisdiction to
     decide this case.
¶3         Pursuant to 5 U.S.C. § 7702(d)(2)(A), the Special Panel is to decide the
     “issues in dispute” and to deliver a final decision. The Board may not force the
     Special Panel to review an EEOC decision because of its disagreement with the
     Commission’s interpretation of discrimination law. See Holley v. Department of
     Health and Human Services, 50 M.S.P.R. 271 (1991). The Special Panel may not
     disturb an EEOC decision with which the Board does not concur unless the
     EEOC’s decision depends on civil service law for its support or is so
     unreasonable that it amounts to a violation of civil service law.         Ignacio, 30
                                                                                          3

     M.S.P.R. at 486.     The Special Panel’s duty is to make a decision on whose
     positions should prevail while giving “due deference” to the respective expertise
     of the Board and the EEOC. 5 U.S.C. § 7702(d)(2)(b).
¶4         Based upon our review of the record, the Special Panel finds that the
     Commission did not rely on any civil service law, rule, regulation, and/or policy
     guidance in Petitioner v. Department of Homeland Security, EEOC Petition No.
     0320110053, 2014 EEOPUB LEXIS 1810 (E.E.O.C. July 10, 2014).                       The
     Commission relied on the following in rendering its decision: Section 501 of the
     Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et
     seq.; EEOC regulations such as 29 C.F.R. § 1614.302, 29 C.F.R. § 1614.303, and
     29 C.F.R. § 1614.305; EEOC federal sector case law; and its own enforcement
     guidance, 1   specifically   the   EEOC’s    Enforcement     Guidance:     Reasonable
     Accommodation and Undue Hardship under the Americans with Disabilities Act,
     EEOC Notice 915.002 (Oct. 17, 2002). The Commission’s decision does not rely
     on or cite to any civil service law, rule, regulation, or policy.           Thus, the
     Commission did not incorrectly interpret any civil service law, rule, or regulation
     in its decision. In certifying this case, the Board failed to cite to a single specific
     civil service law, rule, regulation, or policy directive that the Commission
     incorrectly interpreted.     We find that the Commission’s decision was not so
     unreasonable that it amounts to a violation of civil service law. Furthermore, the
     Special Panel has determined that the Commission’s decision does not constitute


     1
       The EEOC has delegated the authority to issue appellate decisions in federal sector
     discrimination cases under 29 C.F.R. Part 1614 to its Office of Federal Operations
     (OFO). In a small number of cases, the full Commission will consider and vote on a
     decision. In those cases, the decision is issued through the Commission’s Executive
     Secretariat rather than OFO. The Bouffard v. Department of Homeland Security, EEOC
     Appeal No. 0120065257, 2008 WL 276452 (E.E.O.C. Jan. 16, 2008), decision
     mentioned in this appeal was issued by OFO. Petitioner v. Department of Homeland
     Security, EEOC Petition No. 0320110053, 2014 EEOPUB LEXIS 1810 (E.E.O.C. July
     10, 2014), was issued by the Executive Secretariat after a vote by the Commission.
                                                                                           4

     an incorrect interpretation of any provision of any civil service law, rule,
     regulation, or policy directive.     Accordingly, the Special Panel defers to the
     Commission and adopts its decision in the matter as our own.

                    II. BACKGROUND AND PROCEDURAL HISTORY
¶5         On January 26, 2010, the appellant, Reynaldo Alvara, filed a mixed case 2
     MSPB appeal.       See Initial Appeal File (IAF).         The appeal contested the
     appellant’s removal from his position as a Customs and Border Protection Officer
     (CBPO) with the Department of Homeland Security, United States Customs and
     Border Protection (agency), for physical inability to meet the conditions of his
     employment due to a medical condition. Specifically, the agency found that the
     appellant could not perform all of the essential functions of his position. Id.
¶6         The appellant suffers from sleep apnea, a permanent condition which
     requires him to get 8 hours of nocturnal sleep. IAF, Tab 7b at 41, 80-88, 89-102.
     Prior to his termination, the appellant requested that the agency provide him with
     certain reasonable accommodations. The appellant requested a modified work
     schedule that would allow him to get nocturnal sleep each night, such as
     scheduling him to 12-hour shifts (6:00 a.m. to 6:00 p.m.; 8:00 a.m.to 8:00 p.m.;
     10:00 a.m. to 10:00 p.m.). 3 Id. This request would have exempted the appellant
     from the agency’s “graveyard” or overnight shift—the midnight to 8:00 am
     shift—and any overtime which would require him to work during those hours. In


     2
       A mixed case appeal is an appeal filed directly to the MSPB that alleges that an
     appealable agency action was effected, in whole or in part, because of discrimination on
     the basis of race, color, religion, sex, national origin, disability, age, genetic
     information, or reprisal. 29 C.F.R. § 1614.302(a)(2).
     3
       Prior to sometime in 2009, CBPOs at the Port of El Paso were assigned to work one of
     five different shifts: 6:00 a.m. to 2:00 p.m., 8:00 a.m. to 4:00 p.m., 2:00 p.m. to
     10:00 p.m., 4:00 p.m. to 12:00 a.m. (midnight), and 12:00 a.m. (midnight) to 8:00 a.m.
     Hearing Compact Disk (HCD) (Michael John Brady). At the time of the hearing, Port
     of El Paso CBPOs were assigned to three shifts: 6:00 a.m. to 2:00 p.m., 2:00 p.m. to
     10:00 p.m., and 10:00 p.m. to 6:00 a.m. Id.
                                                                                      5

     his MSPB appeal, the appellant asserted that the agency discriminated against him
     in violation of Section 501 of the Rehabilitation Act, as amended, 29 U.S.C.
     § 791 et seq., when it denied his request for accommodation, and retaliated
     against him for engaging in protected equal employment opportunity activity.
     IAF, Tab 1.
¶7         On December 1, 2010, the MSPB administrative judge affirmed the
     agency’s removal for physical inability to meet the conditions of his employment
     due to a medical condition. See Alvara v. Department of Homeland Security,
     MSPB Docket No. DA-0752-10-0223-I-1, Initial Decision (ID) (Dec. 1, 2010).
     The administrative judge found that the appellant was not a qualified individual
     with a disability entitled to a reasonable accommodation under the Rehabilitation
     Act because he could not perform the essential functions of his CBPO position
     with or without accommodation. See ID at 22. The ID relied heavily on Bouffard
     v. Department of Homeland Security, EEOC Appeal No. 0120065257, 2008 WL
     276452 (E.E.O.C. Jan. 16, 2008), in determining that the appellant was not
     qualified, i.e., an individual with a disability entitled to an accommodation,
     because he could not perform the essential functions of his position. See ID at
     22.
¶8         In Bouffard, the complainant, a seasonal CBPO, alleged he was subjected to
     discrimination on the basis of his disability (severe gastroesophageal reflux,
     Barrett’s Esophagus) when the agency denied his request for a set work schedule
     without overtime. Bouffard, EEOC Appeal No. 0120065257, 2008 WL 276452, at
     *1-*2. An EEOC administrative judge found for the Department of Homeland
     Security. Id. Upon review, the EEOC OFO found that complainant did not fall
     within the protections of the Rehabilitation Act because he was not qualified. Id.
     Using the complainant’s job description and an affidavit from the area port
     director, the OFO decision found that the agency established that the ability to
     work rotational shifts and the ability to work overtime were essential functions of
     the complainant’s position. Id. But because the complainant could not perform
                                                                                          6

      these essential functions, and because an agency is not required to eliminate
      essential functions as a reasonable accommodation, the OFO in Bouffard
      determined that the complainant was not qualified and was not entitled to relief.
¶9         In Alvara, the MSPB administrative judge relied on Bouffard in finding that
      the “ability to work rotational shifts and overtime was an essential function of the
      appellant’s CBPO position.” ID at 22. In a footnote, the administrative judge
      also addressed whether the agency could present sufficient evidence that the
      requested reasonable accommodation was an undue hardship. ID at 22 n.25. The
      administrative judge stated:
            Although I need not reach the issue of whether providing the
            appellant’s requested accommodation would impose an undue
            hardship on the agency, in Cyr v. Michael Chertoff, Secretary,
            Department of Homeland Security, EEOC Appeal # 01A43015 (July
            13, 2005), the EEOC found that providing a permanent day shift to
            an Immigration Inspector would impose an undue hardship on the
            agency.
      ID at 22 n.25.
¶10        On February 18, 2011, the appellant filed a petition for review of the
      administrative judge’s initial decision with the Board.       In his petition, 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 therefore that his inability to perform those shifts precludes him
      from being qualified. Petition for Review File, Tab 5 at 13-29. The appellant
      also argued that the agency failed to establish that his request for accommodation
      would pose an undue hardship for the agency. Id. at 29-32.
¶11        On August 17, 2011, the Board affirmed, as modified, the administrative
      judge’s initial decision.      Alvara v. Department of Homeland Security, 116
      M.S.P.R. 627 (2011). The Board also relied on the EEOC’s decision in Bouffard
      in affirming the administrative judge’s initial decision. In relying on Bouffard,
      the Board opined: “We note that the Board generally defers to the EEOC on
      issues of substantive discrimination law unless the EEOC’s decision rests on civil
                                                                                       7

      service law for its support or is so unreasonable that it amounts to a violation of
      civil service law.” Alvara, 116 M.S.P.R. 627, ¶ 8. The Board found:
            Accordingly, because the Bouffard decision involves an issue of
            substantive discrimination law and is neither based on civil service
            law or is so unreasonable as to amount to a violation of civil service
            law, we will defer to the EEOC’s determination that the agency is
            not required to accommodate a disabled CBPO by granting a request
            not to work rotational shifts and overtime.
      Id. The Board also stated, “Because we agree with the administrative judge’s
      findings, it is unnecessary to address the Agency’s challenge to her alternative
      finding as to undue hardship, which is essentially dicta.”       See Alvara, 116
      M.S.P.R. 627, ¶ 14.
¶12        On September 16, 2011, the appellant filed a petition to the EEOC seeking
      review of the Board’s final order under 5 U.S.C. § 7702(b)(2).
¶13        On July 10, 2014, the Commission issued a decision in which the
      Commission differed with the Board’s finding that the agency did not
      discriminate against the appellant on the basis of disability. In so ruling, the
      EEOC partially repudiated Bouffard. The EEOC reasoned: “Because Bouffard
      did not adhere to our Enforcement Guidance and precedential federal sector cases
      in its analysis of the essential functions of a part-time Customs and Border
      Protection Officer, we find that it was wrongly decided on that point.         We
      therefore overturn that portion of the decision.”    Commission Decision, 2014
      EEOPUB LEXIS 1810, at *13. The Commission explained that, for purposes of
      the Rehabilitation Act, the essential functions of a Customs and Border Protection
      Officer may include such duties as inspecting travelers; examining applicants for
      immigration privileges and benefits; seizing suspect property; and detaining
      people engaging in suspicious activity.     Id.   The Commission ruled that the
      appellant’s requested accommodations sought to modify his schedule and
      attendance and therefore did not affect the essential functions of his position.
      The EEOC also reasoned that:
                                                                                        8

              [C]onsidering attendance as an essential job function as opposed to a
              method by which essential functions are accomplished, leads to the
              perverse and unacceptable conclusion that any employee with
              disability-related absences is an unqualified individual and,
              therefore, unable to claim the protections of the Rehabilitation Act.
      Id. at *11.
¶14           The Commission also determined that the agency did not establish that the
      requested reasonable accommodation would be an undue hardship. The EEOC
      held:    “Based on these facts, we find that allowing Petitioner, as one of 700
      officers, to work between 6:00 a.m. and midnight would not cause an undue
      hardship at this particular facility.” Id. at *16. The Commission concluded that
      the agency erred when it:       (1) denied petitioner’s reasonable accommodation
      request to work between the hours of 6:00 a.m. and midnight; and (2) removed
      him.    Id.   The Commission then referred the matter to the Board for further
      consideration pursuant to 5 U.S.C. § 7702(b)(5)(B) because the EEOC’s decision
      differed from the Board’s decision. Id. at *19.
¶15           The Board rejected the Commission’s decision and certified this matter for
      the Special Panel.     The Board recognized that “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.” Alvara, 121 M.S.P.R. 453, ¶ 11. However,
      the Board reasoned:
              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.
      Id., ¶ 8. In doing so, the Board reversed course from its original decision, in
      which it deferred to the EEOC’s interpretation of the anti-discrimination statute.
      The Board concluded:
              [A]s 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
                                                                                        9

            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 decision. We therefore
            REAFFIRM our prior decision. See 5 U.S.C. § 7702(c)(2); 5 C.F.R.
            § 1201.162(a)(2).
      Alvara, 121 M.S.P.R. 453, ¶ 17.

                                III.   STANDARD OF REVIEW
¶16        The Special Panel’s scope of review is described in 5 U.S.C. § 7702(d)(2).
      The Special Panel must first determine whether the issues fall within the purview
      of civil service law or anti-discrimination law. The Special Panel, in ultimately
      deciding the issues, is required to give due deference to the respective expertise
      of the MSPB and EEOC. 5 U.S.C. § 7702(d)(2)(B). As set forth in Ignacio:
            The balance struck by § 7702 is really quite simple. The EEOC
            review is to ensure that the MSPB refrains from basing its decisions
            on incorrect interpretations of discrimination law. The MSPB
            certification to the Special Panel, on the other hand, ensures that the
            EEOC may not err by misinterpreting civil service law. The Panel
            will review the record, according due deference to the expertise of
            each agency to determine whether the substance of the EEOC’s
            decision with which the MSPB disagrees was actually predicated on
            a misinterpretation of civil service law.
      Ignacio, 30 M.S.P.R. at 481.
¶17        As set forth in Ignacio and its progeny, the Special Panel’s obligation to
      defer to each agency’s expertise will result in one of three possible outcomes:
           1. The Panel will overrule the MSPB and defer to the EEOC where:
              (a) the EEOC decision does not constitute an incorrect
              interpretation of a provision of civil service law, rule, regulation
              or policy directives; and (b) the EEOC’s decision that the MSPB's
              interpretation of discrimination law was incorrect has a
              reasonable basis.
           2. The Panel will defer to the MSPB where: (a) the EEOC decision
              as found by MSPB incorrectly interpreted a provision of civil
              service law, rule, regulation or policy directive; and (b) the
              EEOC’s conclusion in its decision that MSPB’s interpretation of
              discrimination law was incorrect lacks a reasonable basis.
                                                                                        10

           3. The Panel will reach a decision addressing the merits of the case
              only where: (a) the decision of the MSPB that the EEOC decision
              incorrectly applied a provision of civil service law, rule,
              regulation or policy directive is correct, and (b) the decision of
              the EEOC that the MSPB, in its initial decision, incorrectly
              interpreted and applied discrimination law is correct, thus leaving
              the merits of the case to be correctly decided under civil service
              and discrimination law by the Special Panel.
      Id. at 483. In this case, the Panel overrules the MSPB and defers to the EEOC
      because: (1) the EEOC decision does not constitute an incorrect interpretation of
      a provision of civil service law, rule, regulation, or policy directive; and (2) the
      EEOC’s decision that the MSPB’s interpretation of discrimination law was
      incorrect has a reasonable basis.
¶18         The dissent, citing only dissenting opinions from previous Special Panel
      decisions and raising for the first time an issue that was not argued by either party
      before the Special Panel, argues that the “analytical framework adopted by the
      majority in Ignacio does not comport with the plain language of the statute and
      fails to give proper effect to the Special Panel’s statutory duty to decide the issue
      in dispute.” Dissenting Opinion, ¶ 4. However, the principal of stare decisis
      supports the Special Panel’s decision to follow Ignacio. The principles set forth
      in Ignacio have been followed for nearly 30 years. Ignacio’s deferential standard
      of review is based on 5 U.S.C. § 7702(d)(2)(b), which requires the Special Panel
      to give “due deference” to the expertise of the MSPB with regard to civil service
      principles, and of the EEOC regarding discrimination law. We shall continue to
      follow Ignacio’s sound principles. The dissent also argues that “[i]ndeed it is
      absurd to decline to reach the merits of this dispute on the ground that the EEOC
      did not cite any provision of civil service law given that its decision here is so
      incompatible with basic principles of civil service law.” Dissenting Opinion, ¶ 6.
      The dissent’s argument ignores the fact that 5 U.S.C. § 7702(d)(2)(b) requires the
      Special Panel to give “due deference” to the EEOC’s interpretation of
      discrimination law.   The dissent’s argument also disregards the failure of the
                                                                                         11

      Board’s certification order to set forth a specific argument as to how the
      Commission’s decision is incompatible with basic principles of civil service law.
      Thus, the Special Panel has no grounds to address the merits of the underlying
      decision.

                                         IV.   ANALYSIS
¶19         The Board’s certification to the Special Panel lacked a specific and
      thoroughly analyzed explanation of how the Commission’s decision incorrectly
      interprets a specific civil service law. The Board’s certification also failed to
      adequately explain how the Commission’s decision is unsupported by the record
      and is so unreasonable that it amounts to a violation of civil service law. The
      dissent seeks to get around this flaw by explaining in more detail its view of the
      reasoning behind the Board’s certification order. However, such after-the-fact
      justification by one member of the Board cannot save the Board’s certification
      order.

      A. Civil Service Law
¶20         Although the Board held that the Commission’s decision constitutes an
      incorrect interpretation of civil service, law, rule or regulation, it never precisely
      identified its own interpretation of what constitutes a “civil service law, rule and
      regulation.” Before moving forward with the analysis of the Board’s decision it
      is important to set forth exactly what a civil service law, rule, or regulation is,
      especially in relation to the Rehabilitation Act.
¶21         The Civil Service Reform Act defines “civil service” as “consist[ing] of all
      appointive positions in the executive, judicial, and legislative branches of the
      Government of the United States, except positions in the uniformed services.”
      5 U.S.C § 2102. Title 5 of the United States Code outlines the government’s
      organization and employees.      However, Title 5 does not expressly define “civil
      service law.” “Thus, the question whether civil service law includes employment
      discrimination   laws   which    have    wider      application   beyond   government
                                                                                    12

      employment can be answered only after an examination of the statutory context
      and the underlying policies.” King v. Lynch, 21 F.3d 1084 (Fed. Cir. 1994).
¶22         Pursuant to 5 U.S.C. § 7702(a)(1)(B)(i)-(v), discrimination laws are under
      the jurisdiction of the EEOC:
            (a)(1) Notwithstanding any other provision of law, and except as
            provided in paragraph (2) of this subsection, in the case of any
            employee or applicant for employment who—
            (A) has been affected by an action which the employee or applicant
            may appeal to the Merit Systems Protection Board, and
            (B) alleges that a basis for the action was discrimination prohibited
            by—
            (i) section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16),
            (ii) section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C.
            206 (d)),
            (iii) section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791),
            (iv) sections 12 and 15 of the Age Discrimination in Employment
            Act of 1967 (29 U.S.C. 631, 633a), or
            (v) any rule, regulation, or policy directive prescribed under any
            provision of law described in clauses (i) through (iv) of this
            subparagraph, the Board shall, within 120 days of the filing of the
            appeal, decide both the issue of discrimination and the appealable
            action in accordance with the Board’s appellate procedures under
            section 7701 of this title and this section.
      5 U.S.C. § 7702(a)(1)(B)(i)-(v). Under section 7702(b)(3)(B)(i), when the case is
      appealed to the Commission, it is the Commission’s duty to decide whether the
      MSPB has incorrectly interpreted the provisions of discrimination law listed in
      subsections (a)(1)(B)(i)-(iv).   By process of elimination, therefore, these
      authorities cannot be the “civil service laws, rules, or regulations” that are
      referred to in the statute.
¶23         King v. Lynch, 21 F.3d 1084 (Fed. Cir. 1994), confirms this view. In King,
      the Director of the Office of Personnel Management argued that the MSPB
      misinterpreted civil service law and regulation affecting personnel management
      and that the Board’s decision would have a substantial impact on civil service
                                                                                        13

      law, rule, regulation, or policy directives. Specifically, the Director asserted that
      the MSPB erred in interpreting the Rehabilitation Act, 29 U.S.C. § 794, and its
      implementing regulation 29 C.F.R. § 1613.702. King, 21 F.3d at 1088. The court
      stated:
            Section 7702 of Title 5 sets forth the appeal procedures for cases
            where there is an alleged violation of certain discrimination laws.
            That section distinguishes between discrimination laws and civil
            service laws. Compare 5 U.S.C. § 7702(b)(3)(B)(i) (referring to the
            discrimination laws set out in subsection (a)(1)(B)) with id.
            § 7702(c)(2) (referring to “civil service laws, rules, regulations, and
            policy directives”). Cases in which certain unlawful discrimination
            is alleged, although initially decided by the MSPB, may at the
            appellant’s option be reviewed administratively by the EEOC
            following an adverse MSPB decision. When that occurs, as in this
            case, § 7702(b) gives the EEOC the primary role in interpreting the
            pertinent discrimination law and regulation (in this case a regulation
            promulgated by the EEOC) and under § 7702(c) the MSPB has that
            role in interpreting “any civil service law, rule, or regulation.” See
            5 U.S.C. § 7702(d)(2)(B) (requiring deference to the “respective
            expertise of the Board and [EEOC]”). The Rehabilitation Act is
            listed as one of the discrimination statutes subject to this procedure,
            see id. § 7702(a)(1)(B)(iii), and thus is distinguished from civil
            service laws referred to in § 7702(c).
      King, 21 F.3d at 1088.
¶24         The court concluded that the Rehabilitation Act and the other discrimination
      laws, although applicable to federal employers, have broader application and are
      not themselves civil service laws. Id. The court also reasoned that “[t]he Senate
      Report and statutory scheme for dealing with discrimination issues demonstrates
      that Congress intended that there be a consistent interpretation of these laws
      whether their alleged violation arises within or without the federal government.”
      Id.
¶25         The Civil Service Reform Act of 1978 states that civil service law should
      not abridge discrimination law. Title I of the Civil Service Reform Act, Section
      2302(d), provides:
                                                                                      14

            (d) This section shall not be construed to extinguish or lessen any
            effort to achieve equal employment opportunity through affirmative
            action or any right or remedy available to any employee or applicant
            for employment in the civil service under-,
            (1) section 717 of the Civil Rights Act of 1964 (42 U.S.C.
            2000e-16), prohibiting discrimination on the basis of race, color,
            religion, sex, or national origin;
            (2) sections 12 and 15 of the Age Discrimination in Employment Act
            of 1967 (29 U.S.C. 631, 633a), prohibiting discrimination on the
            basis of age;
            (3) under section 6(d) of the Fair Labor Standards Act of 1938 (29
            U.S.C. 206(d)), prohibiting discrimination on the basis of sex;
            (4) section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791),
            prohibiting discrimination on the basis of handicapping condition; or
            (5) the provisions of any law, rule, or regulation prohibiting
            discrimination on the basis of marital status or political affiliation.
      See 5 U.S.C. § 2302(d).
¶26        The statutory language, legislative history and case law recognize that
      interpretation of a civil service law, rule, or regulation does not encompass
      interpretation of statutes and regulations relating to employment discrimination.
      Thus, the Commission’s decision did not misinterpret a civil service, law, rule,
      regulation, or policy directive when it relied strictly upon the Rehabilitation Act
      and its implementing regulations and case law.

      B. The Commission Decision Did Not Constitute an Unreasonable Interpretation
      of Civil Service Law
¶27        The Board interpreted the Commission’s decision as encroaching on an
      agency’s “management/operational perspective” and discretion to determine the
      tasks, duties and responsibilities of any given position, in this case, a law
      enforcement position. Alvara, 121 M.S.P.R. 453, ¶8. The Board misinterpreted
      the Commission’s decision. The dissent argues that “[t]hus, we may reasonably
      interpret ‘civil service law’ in this context as encompassing the judicial and
      administrative decisions and legal principles that govern the operation of the
      federal civil service in addition to applicable statutory provisions.” Dissenting
                                                                                       15

      Opinion, ¶ 7. The dissent’s interpretation would effectively result in any EEOC
      decision that conflicted with any part of an MSPB decision triggering Special
      Panel review of the merits. That interpretation is clearly contrary to the intent of
      the statute.
¶28         The Board’s misinterpretation of the Commission’s decision is illustrated
      by its citation to random statutes that pertain to law enforcement officers. The
      Board states:
             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).
      Id., ¶ 13.     None of the statutes cited in the certification order pertains to the
      essential functions of a CBPO officer. The cited statutes are silent on “essential
      functions,” and do not support the Board’s belief that agencies enjoy unfettered
      discretion to identify “essential functions.” Instead, two of the cited provisions
      relate to retirement for law enforcement officers and the third establishes a
      maximum age for hiring law enforcement officers.
¶29         The Board further misinterprets the Commission’s decision when it states,
      “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.’” Id., ¶ 11. The Board holds that the Commission’s decision infringes
                                                                                         16

      upon the agency’s right and authority to establish the terms and conditions of
      employment and to determine the essential functions of a position. The Board
      misreads the Commission’s decision.
¶30        Federal agencies do enjoy wide discretion in assigning work, duties and
      responsibilities to personnel and in determining how agency operations will be
      conducted, in accordance with applicable employment discrimination laws. See,
      e.g., 5 U.S.C. § 7106.       The dissent argues that “5 U.S.C. § 7106 gives
      management exclusive authority, subject to undertaking permissive bargaining,
      with regard to assigning work, determining the personnel by which the agency
      operations shall be conducted, and taking disciplinary actions.”          Dissenting
      Opinion, ¶ 16.
¶31        However, nothing in the Commission’s decision restricts or prohibits any
      agency’s managerial and operational prerogatives or any agency’s right to
      establish the terms and conditions of employment.         The Board errs where it
      concludes that under the Rehabilitation Act and the ADA, management’s
      evaluation of a position’s “essential functions” is dispositive. Management can
      assign duties but cannot determine as a matter of law whether those duties are
      essential functions. The ADA 4 states:
            The term “qualified individual” means an individual who, with or
            without reasonable accommodation, can perform the essential
            functions of the employment position that such individual holds or
            desires. For the purposes of this subchapter, consideration shall be
            given to the employer’s judgment as to what functions of a job are
            essential, and if an employer has prepared a written description
            before advertising or interviewing applicants for the job, this


      4
        The Rehabilitation Act, 29 U.S.C. § 791 et seq., which applies to the federal
      government, was amended in 1992 to apply the standards in the ADA to complaints of
      discrimination by federal employees or applicants for employment. The standards set
      forth in the ADA and its implementing regulations have thus been incorporated into the
      Rehabilitation Act. Caver v. Department of Navy, EEOC Appeal No. 01994882, 2001
      WL 1104094 (E.E.O.C. Sept. 7, 2001).
                                                                                             17

            description shall be considered evidence of the essential functions of
            the job.
      42 U.S.C. § 12111(8).       The inquiry required to define a position’s “essential
      functions” under the Rehabilitation Act is to be performed by the finder of fact—
      not the employer. The employer’s judgment as to what functions are essential is
      only one factor taken into consideration by the fact-finder who will ultimately
      determine the essential functions of a position. That fact-finder is the EEOC.
      The EEOC has final authority to determine what an “essential function” is—not
      the agency.     Further, consistent with the authority granted to the EEOC by
      Congress, the EEOC has the authority to define the limits of “essential functions”
      in both regulation and guidance. 5
¶32         Thus, the MSPB erred when it held that the Commission interfered with the
      agency’s authority to determine the essential functions of the appellant’s position.
      As explained further infra, the Commission’s decision did not repudiate the
      agency’s judgment. Rather, it disagreed with the agency on the legal analysis
      required by the Rehabilitation Act when evaluating scheduling and work
      requirements.    It corrected the agency’s legal error of characterizing working
      rotating shifts and overtime (a method of performing the functions of a job) as
      essential functions of the CPBO position and held that if the agency believed that

      5
        The dissent notes that the MSPB administrative judge relied on the EEOC’s own
      regulations in determining that working overtime and a rotating shift were essential
      functions of the CPBO position. Reliance on the factors set forth in the regulations for
      determining essential functions would, indeed, have been both appropriate and
      acceptable if working overtime and a rotating shift could, in fact, be essential functions
      under the terms of the Rehabilitation Act. The EEOC has said in Enforcement
      Guidance, and reaffirmed in the case before us, that these are not functions in
      themselves. Therefore the essential function analysis was not proper in this case. The
      dissent goes further and says that the Enforcement Guidance that states this position is
      itself not consistent with the EEOC’s regulations and should be disregarded by the
      Special Panel. This is just another attempt to have the Special Panel throw out the
      standards of Ignacio and examine the issues in the case without the required “due
      deference” to the expertise of the EEOC in discrimination law and the MSPB in matters
      of civil service law.
                                                                                        18

      it could not provide a scheduling accommodation to the complainant it needed to
      show that such accommodations imposed an undue hardship on agency operations
      or finance.
¶33           In so doing, the Commission interpreted its own regulations, 29 C.F.R.
      § 1630.2(m); relied on its own federal sector case law, e.g., Cottrell v. U.S. Postal
      Service, EEOC Appeal No. 07A00004, 2001 WL 1218254 (E.E.O.C. Feb. 2,
      2001); and used its own Enforcement Guidance, EEOC Enforcement Guidance:
      Reasonable Accommodation and Undue Hardship under the Americans with
      Disabilities Act, EEOC Notice 915.002 (Oct. 17, 2002).              See Commission
      Decision, 2014 EEOPUB LEXIS 1810, at *11-*12. The Commission also relied
      upon its own case law and Enforcement Guidance in finding that the agency
      failed to show that modifying the appellant’s work schedule would cause an
      undue hardship.       Id. at *19.     Thus, the Commission relied strictly on
      discrimination law, not civil service law, in resolving the issues in dispute in this
      case.
¶34           The Commission’s decision only relied upon the anti-discrimination
      statutes, EEOC regulations, EEOC case law, and EEOC enforcement guidance to
      render its decision. Whether an employee is able to perform the functions of a
      position and whether an agency considered a reasonable accommodation are
      clearly determinations under discrimination law, not civil service law. It is the
      EEOC, not the MSPB, that has primary authority to determine this issue, and the
      Special Panel is required to give the EEOC due deference. The EEOC did not
      infringe upon or incorrectly interpret civil service rules or regulations.
¶35           The dissent argues that the Commission’s “categorical exclusion of certain
      terms and conditions of employment from being considered essential to the
      effective performance of the position is fundamentally at odds with the Board’s
      jurisprudence concerning adverse actions based on physical inability to perform.”
      Dissenting Opinion, ¶ 12.        The Commission’s decision, however, is an
      interpretation of discrimination law—not the Board’s jurisprudence concerning
                                                                                        19

      adverse actions based on physical inability to perform. In fact, the dissent’s basic
      point, that the EEOC should not categorically exclude attendance issues from the
      definition of “essential functions,” is in reality just a disagreement with the
      EEOC’s interpretation of discrimination law. The Special Panel cannot give “due
      deference” to the EEOC on discrimination law and, at the same time, overturn
      that interpretation based only on the fact that the MSPB disagrees with it. There
      must be some explicit conflict with civil service law, which has not been shown.

      C. The Commission Decision Is Supported by the Record
¶36         The Board failed to specifically explain and analyze how the Commission’s
      decision is unsupported by the record. The Special Panel should not and will not
      guess what the Board means in holding that the Commission’s decision is
      unsupported by the record.

      D. The EEOC’s Decision Is Not Unreasonable
¶37         The Board also failed to specifically explain how the EEOC decision was so
      unreasonable that it amounts to a violation of civil service law, rule, or
      regulation. The dissent argues that “the EEOC’s decision effectively eviscerates
      the authority of federal agencies, in the first instance, from ever establishing time
      and attendance requirements as essential terms and conditions of employment.”
      Dissenting Opinion, ¶ 25.     The dissent’s interpretation of the Commission’s
      decision is not accurate. The Commission’s decision does not say that attendance
      can never be an important term and condition of a position.             In fact, the
      Commission’s decision concludes that accommodations based on attendance are
      not required if the agency establishes that they pose an undue burden on its
      operations. The Special Panel finds that the Commission’s position in this regard
      was reasonable.
¶38         This case is unique because the Commission’s decision overturned its own
      legal precedent and a specific portion of Bouffard. The administrative judge and
      the Board relied heavily upon Bouffard in their decisions.            However, the
                                                                                    20

      Commission is well within its authority to overturn a decision rendered by the
      EEOC’s OFO.
¶39        The Commission relied upon the Rehabilitation Act, an anti-discrimination
      statute—not a civil service statute. The Commission relied upon its own case law
      and its own enforcement guidance in rendering its decision. In conducting its
      analysis of whether the appellant was entitled to a reasonable accommodation, the
      Commission reviewed Bouffard. The Commission 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. Commission
      Decision, 2014 EEOPUB LEXIS 1810, at *6.           The Commission found that
      working substantial overtime and/or the graveyard shift were the methods by
      which an individual performed the job’s essential functions, not the essential
      functions themselves. Id.
            In fact, considering attendance as an essential job function as
            opposed to a method by which essential functions are accomplished,
            leads to the perverse and unacceptable conclusion that any employee
            with disability-related absences is an unqualified individual and,
            therefore, unable to claim the protections of the Rehabilitation Act.
            See e.g., Cottrell v. U.S. Postal Serv., EEOC Appeal No. 07A0004
            (Feb. 2. 2001); McCullough v. U.S. Postal Serv., EEOC Request No.
            05950529 (Apr. 25, 1996); Ruiz v. U.S. Postal Serv., EEOC Request
            05880859 (May 21, 1990).
      Id. at *4. The Commission cited to its Enforcement Guidance in reasoning:
            Employers should carefully assess whether modifying the hours
            could significantly disrupt their operations -- that is, cause undue
            hardship -- or whether the essential functions may be performed at
            different times with little or no impact on the operations or the
            ability of other employees to perform their jobs.
      Id., citing to EEOC Enforcement Guidance: Reasonable Accommodation and
      Undue Hardship under the Americans with Disabilities Act, EEOC Notice
      915.002, Question 22 (Oct. 17, 2002).
                                                                                      21

¶40        The Board failed to clearly explain why it was unreasonable for the
      Commission to decide that the instant case should have been analyzed through the
      lens of undue hardship instead of an essential function analysis.
¶41        There are several steps that an agency must take in analyzing a request for a
      reasonable accommodation. The Rehabilitation Act requires federal agencies to
      provide reasonable accommodations to qualified individuals with disabilities who
      are employees or applicants for employment, unless to do so would cause an
      undue hardship.     Once an agency finds that the employee requesting the
      reasonable accommodation has a disability, it must determine whether the
      employee is “qualified.”
¶42        An individual with a disability is qualified if the individual “satisfies the
      requisite skill, experience, education, and other job-related requirements of the
      employment positions such individual holds or desires, and who, with or without
      reasonable accommodation, can perform the essential functions of such position.”
      29 C.F.R. § 1630.2(m). Essential functions are the duties of a job, that is, the
      outcomes that must be achieved by someone in that position. Complainant v. U.S.
      Postal Service, EEOC Appeal No. 0120080613, 2013 WL 8338375, at *7
      (E.E.O.C. Dec. 23, 2013).
¶43        The Commission determined:
            Performing certain job functions sometimes requires a person’s
            presence at the worksite. But the fact that attendance can be a
            condition precedent to performing a function does not render it a job
            function in and of itself. Job functions are the duties that a person
            must perform or the outcomes that must be achieved by the person in
            the job. Attendance and timing are neither duties nor outcomes by
            themselves.
      Commission Decision, 2014 EEOPUB LEXIS 1810, at *10.                The Commission
      found that since there was no question that the appellant could perform the duties
      of a CBPO when at work, he was qualified. Id. at *14. The next step in the
      agency’s analysis is whether the appellant’s requested reasonable accommodation
      posed an undue hardship. An employer does not have to provide a reasonable
                                                                                      22

      accommodation that would cause an “undue hardship” to the employer’s
      operation.
¶44         Several factors must be considered in determining whether a requested
      reasonable accommodation is an undue hardship.             Id. at *15-*16. The
      Commission’s determination that the agency did not meet its burden in
      substantiating its undue hardship argument is reasonable. The Commission found
      that the agency made generalized conclusions and assessments supporting its
      view that providing a reasonable accommodation would result in an undue
      hardship. Id. at *18. It is not sufficient to merely state in a conclusory manner
      that an accommodation would be an undue hardship. The undue hardship burden
      is a “rigorous one” and the agency must “prove convincingly” that such a
      hardship actually exists. Swafford v. Tennessee Valley Authority, EEOC Appeal
      No. 01831944, 1984 WL 484605 (May 21, 1984). The agency bears the burden of
      proof to show not only that an accommodation would impose an undue hardship,
      but that the agency actually considered the accommodation. Id. In the instant
      case, it was not unreasonable for the Commission to find that the agency did not
      meet its burden.
¶45         In summary, the MSPB disagrees with the EEOC. However, it failed to
      specifically explain how the Commission’s decision misinterprets civil service
      law or how the decision is so unreasonable that it amounts to a violation of civil
      service law. The MSPB sought to transform this controversy into a civil service
      matter by contending that the EEOC violated civil service principles. No matter
      how vigorously the MSPB characterizes this case as a violation of civil service
      law, the Commission’s decision was based on its interpretation of discrimination
      law. The Commission’s interpretation of discrimination law and their decision
      are reasonable. As far as this Special Panel’s review is concerned, that is the end
      of the story.
                                                                                      23

                                       V. CONCLUSION
¶46        The Special Panel defers to the EEOC and adopts the EEOC’s decision as
      the decision of the Special Panel.     Pursuant to 5 U.S.C. § 7702(d)(3), this
      decision is referred to the Board which shall remand the case to the administrative
      judge in order to conduct a compensatory damages hearing, order the agency to
      take appropriate action including cancellation of the removal and the award of all
      payments and benefits to which the appellant is entitled as a result of this
      decision. Enforcement of this decision is the responsibility of the Board. The
      parties are notified that this decision is reviewable pursuant to 5 U.S.C.
      § 7702(d)(2)(A).



      ______________________________
      Dennis P. Walsh
      Chairman
      Special Panel


      ______________________________
      Chai R. Feldblum
      Commissioner
      Equal Employment Opportunity Commission
                     DISSENTING OPINION OF ANNE M. WAGNER

                                               in

                   Reynaldo Alvara v. Department of Homeland Security

                         MSPB Docket No. DA-0752-10-0223-E-1
                          EEOC Petition Number 0320110053

                                    Before the Special Panel

¶1         For the reasons explained more fully below, I respectfully dissent from the
     Opinion of the majority of the Special Panel (Spec. Pan. Op.) because I believe
     that the Equal Employment Opportunity Commission’s (EEOC or Commission)
     decision   constitutes   a   misinterpretation   of   long-standing   Merit   Systems
     Protection Board (MSPB or Board) precedent governing the adjudication of an
     adverse action based on a charge of physical inability to perform.             It also
     constitutes a misinterpretation of various provisions embedded throughout Title 5
     of the U.S. Code as well as in the Civil Service Reform Act of 1978, Pub. L. No.
     95-454, 92 Stat. 1111 (CSRA). I also believe that the EEOC’s determination that
     the MSPB misinterpreted any provision of discrimination law has no reasonable
     basis. However, perhaps even more fundamentally, I disagree with the Special
     Panel’s decision not to reach the merits of the dispute between the MSPB and
     EEOC regarding whether time and attendance requirements may ever be deemed
     essential functions of a position, an issue which has clear implications under both
     civil service and discrimination law.     Under the statutory scheme set forth in
     5 U.S.C. § 7702(c)(2), it is precisely under such circumstances that Congress
     anticipated that the Special Panel would resolve the dispute. Instead, the majority
     adopts the same deferential posture toward the EEOC that has typified Special
     Panel proceedings in the past and which, as explained below, stems from the
     misguided analytical approach developed by the first Special Panel in Ignacio v.
     U.S. Postal Service, 30 M.S.P.R. 471, 477 (Spec. Pan. 1986).
                                                                                        2

     A. The Special Panel Process
¶2        The CSRA provides a somewhat complex process for resolving federal
     employee challenges to adverse actions that are appealable to the Board, wherein
     the appellant raises, as an affirmative defense, that a basis for the action was
     unlawful discrimination prohibited under the various statutes identified in
     5 U.S.C. § 7702(a)(1)(B)(i)-(v). See generally 5 U.S.C. § 7702. Specifically,
     upon issuance of a Board decision, the appellant may petition the EEOC, under
     5 U.S.C. § 7702(b)(1), to “consider” the Board’s decision and either concur in it
     or “issue in writing another decision which differs from the decision of the Board
     to the extent that the Commission finds that, as a matter of law--(i) the decision
     of the Board constitutes an incorrect interpretation of any provision of any law,
     rule, regulation, or policy directive referred to in subsection (a)(1)(B)” of section
     7702. 5 U.S.C. § 7702(b)(3). 1 The Board thereafter has the option of either
     concurring and wholly adopting the EEOC’s decision, or reaffirming the Board’s
     initial decision upon finding, as a matter of law, that the EEOC’s decision
     “constitutes an incorrect interpretation of any provision of any civil service law,
     rule, regulation, or policy directive.”    5 U.S.C. § 7702(c)(2).      If the Board
     reaffirms its initial decision under section 7702(c)(2), the CSRA requires that the
     matter “be immediately certified” to a Special Panel pursuant to 5 U.S.C.
     § 7702(d)(1) (emphasis added).
¶3        As a threshold matter, this statutory scheme plainly contemplates that the
     Special Panel’s jurisdiction is established upon issuance of a Board decision
     under section 7702(c)(2), i.e., when the Board rejects the EEOC’s decision and


     1
       The CSRA further provides that the EEOC may also differ with the MSPB upon
     finding, as a matter of law, that the Board’s decision as to the appellant’s
     discrimination claim is not supported by the evidence in the record as a whole.
     5 U.S.C. § 7702(b)(3)(B)(ii). Similarly, the Board may reaffirm its decision upon
     finding as a matter of law that the EEOC’s decision as to civil service law is not
     supported by the evidence in the record as a whole. 5 U.S.C. § 7702(c)(2)(B).
                                                                                          3

     reaffirms its original opinion. In Ignacio, 30 M.S.P.R. at 477, the first Special
     Panel convened under the CSRA cited the plain language of the statute in finding
     that “[o]nce a subsection (c)(2) finding is made, certification is automatic,
     leaving the Panel with no choice but to accept jurisdiction.” It further determined
     that the CSRA’s legislative history supported the view “that jurisdiction is
     automatically conferred by the fact of certification, leaving the Panel with the
     responsibility of resolving the issues in dispute.” Id. As such, contrary to the
     view expressed by the amicus curiae to the effect that the Special Panel’s
     jurisdiction turns on whether the Board in fact found that the EEOC misapplied
     civil service law, this Special Panel’s jurisdiction to resolve the issues in dispute
     here automatically attached, as a matter of law, upon the Board’s issuance of its
     Opinion and Certification Order on August 13, 2014. See Ignacio, 30 M.S.P.R. at
     478 n.5 (“The Panel is granted no authority to decline or grant jurisdiction based
     on the propriety of the MSPB’s certification.”)
¶4         Once jurisdiction attaches, the Special Panel has a statutory obligation to
     “decide the issues in dispute.”       5 U.S.C. § 7702(d)(2)(A).         However, the
     analytical framework adopted by the majority in Ignacio does not comport with
     the plain language of the statute and fails to give proper effect to the Special
     Panel’s statutory duty to decide the issue in dispute. 2 See Boots v. U.S. Postal
     Service, 100 M.S.P.R. 513, 526 (Spec. Pan. 2005) (Chairman McPhie,
     dissenting); Ignacio, 30 M.S.P.R. at 487 (Chairman Ellingwood, dissenting).
     Specifically, the Ignacio Panel determined that it would not reach the merits of
     the dispute, but rather defer to the EEOC where (a) the EEOC’s decision does not
     constitute an incorrect interpretation of a provision of civil service law, rule,
     regulation, or policy directive; and (b) the EEOC’s decision that the MSPB’s


     2
      Previous Special Panel decisions are not controlling in our present deliberations. See
     Boots v. U.S. Postal Service, 100 M.S.P.R. 513, 518 (Spec. Pan. 2005) (viewing Ignacio
     only as “guiding precedent”).
                                                                                        4

     interpretation of discrimination law was incorrect has a reasonable basis.
     Ignacio, 30 M.S.P.R. at 483. Conversely, the Panel would defer to the MSPB
     (a) where the EEOC decision incorrectly interpreted a provision of civil service
     law, rule, regulation, or policy directive; and (b) the EEOC’s conclusion that the
     MSPB’s interpretation of discrimination law was incorrect lacks a reasonable
     basis. Id. That Panel concluded that it would reach the merits of the dispute only
     where (a) the decision of the MSPB that the EEOC decision incorrectly applied a
     provision of civil service law, rule, regulation, or policy directive is correct; and
     (b) the decision of the EEOC that the MSPB, in its initial decision, incorrectly
     interpreted and applied discrimination law is correct. Ignacio, 30 M.S.P.R. at
     483.
¶5          Apart from the patently lopsided nature of Ignacio’s convoluted scheme, the
     fact remains that the issue presented to this Special Panel reflects precisely the
     type of conflict between civil service and discrimination law that Congress
     empowered the Special Panel to resolve. Here, the MSPB correctly applied its
     longstanding precedent under civil service law in sustaining the appellant’s
     removal based on a charge of physical inability to perform the essential functions
     of his position and denied his claim that his removal was based on disability
     discrimination. In its decision, eschewing the time-honored practice of applying
     a case-by-case approach, the EEOC announced a categorical exclusion of time
     and attendance requirements from being deemed “essential functions” under the
     Rehabilitation Act.    The EEOC’s decision effectively ignores, or worse still,
     nullifies management’s well-established authority—under both the statutory
     provisions of the CSRA as well as decades of Board precedent interpreting those
     provisions—to take an adverse action when an employee fails to meet time and
     attendance requirements. As such, the Special Panel should have reached the
     merits of the dispute and determined whether civil service law or discrimination
     law was controlling on the question of whether time and attendance could ever be
     deemed essential functions of a position.
                                                                                          5

¶6         Instead, this Special Panel punts on this important question, deferring to the
     EEOC because the EEOC relied solely on the Rehabilitation Act in issuing its
     decision. This argument exactly captures the error in the Ignacio analysis. The
     CSRA requires only that the MSPB conclude that the EEOC’s “decision
     constitutes an incorrect interpretation of any provision of any civil service law,
     rule, regulation, or policy directive.” 5 U.S.C. § 7702(c)(2) (emphasis added).
     Yet, the Ignacio Panel inexplicably interpreted this as requiring, alternately, that
     the EEOC decision applied a civil service law, 30 M.S.P.R. at 483, or depended
     on civil service law for its support, id. at 486. This has led to the incongruous
     result that where, as here, the issue of essential functions is clearly one that arises
     under both civil service and discrimination law, 3 the EEOC can unilaterally
     command deference and preclude the Special Panel from even reaching the merits
     of a dispute simply by avoiding any explicit reference to civil service law and
     framing its decision solely in terms of discrimination law, as it did here. Thus,
     the fact that the EEOC did not explicitly apply or rely on civil service law to
     support its categorical exclusion of time and attendance requirements from
     essential functions should not operate to trigger whatever deference is due the
     EEOC or to warrant overruling the MSPB’s decision in this case. Indeed, it is
     absurd to decline to reach the merits of this dispute on the ground that the EEOC
     did not cite any provision of civil service law given that its decision here is so
     incompatible with basic principles of civil service law.

     B. The EEOC’s Decision Constitutes an Incorrect Interpretation of Civil Service
     Law
¶7         Even if this Special Panel were to adopt Ignacio’s deferential framework,
     however, we should then defer to the MSPB and leave its decision intact because
     the EEOC’s decision constitutes an incorrect interpretation of civil service law.

     3
       The fact that “essential functions” is an issue in discrimination law does not,
     therefore, preclude it from implicating basic civil service law.
                                                                                              6

     See Ignacio, 30 M.S.P.R. at 483. The CSRA does not expressly define “civil
     service law.”     Horner v. Schuck, 843 F.2d 1368, 1371 (Fed. Cir. 1988).
     Nonetheless, it does provide that, for purposes of Title 5, “civil service” consists
     of all appointive positions in the executive, judicial, and legislative branches of
     the Government of the United States . . . .” 5 U.S.C. § 2101(1). Furthermore,
     Black’s Law Dictionary defines “law” as “the aggregate of legislation, judicial
     precedent, and accepted legal principles; the body of authoritative grounds of
     judicial and administration action.” Black’s Law Dictionary 889 (7th ed. 1999).
     Thus, we may reasonably interpret “civil service law” in this context as
     encompassing the judicial and administrative decisions and legal principles that
     govern the operation of the federal civil service in addition to applicable statutory
     provisions. 4

            1. The EEOC’s Decision Constitutes a Misinterpretation of Longstanding
            Board and Judicial Decisions Arising under the CSRA
¶8         In its decision, the EEOC categorically excludes time and attendance
     requirements from being considered essential functions of a position and
     narrowly defines “functions” as limited to the activities performed in a job. It
     excludes from that concept other terms and conditions of employment that may be
     necessary to effectively and efficiently perform those activities.          This blanket
     exclusion is contrary to the Board’s longstanding precedent governing its
     adjudication of adverse actions based on physical inability to perform.
     Furthermore, the EEOC’s position in this matter effectively supplants agencies as
     the primary authority for determining, in the first instance, whether time and
     attendance requirements are necessary to achieve the agency’s mission in

     4
        However, for purposes of section 7702, “civil service law” is distinct from
     discrimination law. See King v. Lynch, 21 F.3d 1084 (Fed. Cir. 1994) (recognizing that
     “civil service law” is not defined in Title 5, but concluding, based on the differentiation
     in section 7702 between civil service and discrimination law, that the former does not
     encompass the latter).
                                                                                               7

      derogation of numerous provisions of civil service law interwoven throughout the
      CSRA.
¶9          Under the facts of this case, the Department of Homeland Security, the U.S.
      Customs and Border Protection (agency) removed the appellant from his position
      as a Customs and Border Protection Officer (CBPO) for physical inability to meet
      the conditions of his employment due to a medical condition. See MSPB Docket
      No. DA-0752-10-0223-I-1, Initial Decision (ID) at 1 (Dec. 1, 2010).                   The
      MSPB’s administrative judge properly adjudicated the case as an appeal from an
      adverse action wherein the agency bore the burden of proof on the charge of
      inability to perform job duties and the appellant bore the burden of proof as to his
      affirmative defense of disability discrimination. ID at 8-23. In stating the legal
      principles governing the Board’s analysis of the underlying adverse action, the
      administrative judge explicitly cited and properly relied upon longstanding Board
      precedent to the effect that, in a removal action for physical inability to perform,
      the Board must determine whether the employee was able to perform the
      functions of his position and whether the agency considered accommodation. ID
      at 8-23 (citing D’Leo v. Department of the Navy, 53 M.S.P.R. 44, 51 (1992);
      Schoening v. Department of Transportation, 34 M.S.P.R. 556, 561 (1987)). 5
¶10         The instant case is only one in a long line of Board precedent adjudicating
      adverse actions based on physical inability to perform the functions of a position.


      5
        In deciding the appellant’s petition for review, the full Board affirmed the initial
      decision. As such, the Board’s decision in this matter incorporates the legal analysis,
      including citations to Board precedent, set forth in the initial decision regarding
      whether the agency met its burden of proving the appellant’s inability to perform the
      functions of his position. In his petition for review, the appellant challenged the initial
      decision only with regard to the affirmative defense, and did not specifically question
      the administrative judge’s decision under civil service law to sustain the agency’s
      charge of physical inability to perform the functions of his position. Therefore, I
      strongly reject the notion that the Board failed to cite any civil service law
      underpinning its conclusion that the EEOC’s decision constitutes a misinterpretation of
      civil service law.
                                                                                            8

      Indeed, in one of its earliest decisions, the Board deemed it “well settled that a
      physical disability may warrant the agency taking an adverse action.” Owens v.
      Department of the Air Force, 8 M.S.P.R. 580, 583 (1981). Almost 30 years later,
      in Slater v. Department of Homeland Security, 108 M.S.P.R. 419, ¶¶ 3-11 (2008),
      the Board addressed the parameters of such a charge where, as here, the agency
      has established medical or physical requirements for the position. In Slater, the
      agency removed the employee based solely on a medical diagnosis and not on any
      observed deficiencies in his performance. The Board nevertheless concluded that
      the agency could remove the employee upon showing that the condition itself is
      disqualifying, its recurrence cannot be ruled out, and the duties of the position are
      such that a recurrence would pose a reasonable probability of substantial harm.
      In so holding, the Board relied on 5 C.F.R. § 339.203, which authorizes agencies
      to “establish physical requirements for individual positions without [Office of
      Personnel Management (OPM)] approval when such requirements are considered
      essential for successful job performance . . . [and] clearly supported by the actual
      duties of the position . . . .”      The Board noted that OPM promulgated the
      regulation in order “‘to allow agencies greater flexibility in setting appropriate
      medical standards and requirements.’” Slater, 108 M.S.P.R. 219, ¶ 10.
¶11         More recently, in Fox v. Department of the Army, 120 M.S.P.R. 529, 544-48
      (2014), 6 the Board affirmed the appellant’s removal from her position as Program
      Manager for the U.S. Army Corps of Engineers on the ground that her request for
      a permanent telework arrangement would not permit her to carry out the essential
      functions of her position, insofar as those functions required, at least to some
      extent, some travel and face-to-face interactions. The Board held that where an
      appellant does not occupy a position with medical standards, in order to establish


      6
       The Board distinguished Fox from Slater insofar as the position at issue in Fox did not
      have medical or physical requirements. However, the Board’s discussion of essential
      functions is still pertinent here.
                                                                                      9

      a charge of physical inability to perform, “the agency must establish that the
      appellant’s medical condition prevents her from being able to safely and
      efficiently perform the core duties of her position.” Id. at 544. Deeming “core
      duties” to be synonymous with “essential functions,” the Board looked to
      29 C.F.R. § 1630.2(n)(1) as guidance in determining when a function may be
      deemed essential and what evidence may be relevant in making such a
      determination. However, in assessing whether an agency has met its burden of
      proof in such cases, the Board has never adopted the EEOC’s rather artificial line
      between essential activities to achieve outcomes and other terms and conditions
      of employment, such as time and attendance, that may be essential to the
      successful and efficient performance of those activities.    Thus, in Fox, while
      travel and conducting face-to-face interactions were arguably only means to
      achieve the duties of a Program Manager, the Board did not thereby exclude them
      from being considered essential in ultimately finding that the agency could
      remove the appellant for failing to meet those terms and conditions of her
      position.
¶12        Consistent with Board precedent, the MSPB administrative judge in the
      instant case examined the record and found that “according to the medical
      standards and physical requirements, as well as the position description for a
      CBPO, the appellant was expected to work extended or unscheduled hours
      including weekends and holidays; was required to rotate shifts, assignments and
      duty stations; and was obliged to perform substantial amounts of overtime.” ID
      at 8. Based on undisputed facts and stipulations, she found that the appellant was
      unable to work rotating shifts or work all of the overtime to which he might have
      been assigned due to his sleep apnea. ID at 8. Applying civil service law, the
      administrative judge therefore properly sustained the agency’s charge that the
      appellant was physically incapable of meeting the conditions of employment and
                                                                                              10

      the Board properly affirmed the administrative judge’s factual and legal findings. 7
      The EEOC’s categorical exclusion of certain terms and conditions of employment
      from being considered essential to the effective and efficient performance of the
      position is fundamentally at odds with the Board’s jurisprudence concerning
      adverse actions based on physical inability to perform.
¶13         More generally, the EEOC’s decision is also contrary to civil service law
      governing the adjudication of time and attendance deficiencies of federal
      employees. In Davis v. Veterans Administration, 792 F.2d 1111, 1113 (Fed. Cir.
      1986), the U.S. Court of Appeals for the Federal Circuit 8 recognized that “[a]n
      essential element of employment is to be on the job when one is expected to be
      there . . . .   Moreover, absence without leave is not excused by acceptable
      performance when an employee does choose to appear. Acceptable performance
      is a separate element of one’s obligations to an employer.” Consistent with this
      position, the court has also held that nexus to the efficiency of the service—a
      required element to be proven in any adverse action appeal—is automatically
      established in cases of absence without leave. See Bryant v. National Science
      Foundation, 105 F.3d 1414, 1417 (Fed. Cir. 1997). Similarly, from the outset,
      the Board has recognized that attendance-related problems are valid reasons for
      taking adverse actions, including removals.           See Ajanaku v. Department of
      Defense, 44 M.S.P.R. 350, 355 (1990) (“an essential element of employment is to
      be on the job when one is expected to be there”); Sanders v. Veterans
      Administration, 11 M.S.P.R. 434, 437 (1982) (“no organization can operate
      successfully without a reliable work force”); Clemmons v. U.S. Postal Service,
      5 M.S.P.R. 363, 365 (1981). Remarkably, the EEOC’s decision now turns this


      7
        Contrary to the majority’s view, see Spec. Pan. Op., ¶ 31, the trier of fact in this case
      is the MSPB’s administrative judge.
      8
       Decisions of the Federal Circuit are controlling authority for the Board. See Fairall v.
      Veterans Administration, 33 M.S.P.R. 33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987).
                                                                                        11

      civil service law on its head insofar as it effectively requires agencies to tolerate
      attendance problems absent a showing of undue hardship if an employee can
      demonstrate the ability to perform the activities of the position whenever he or
      she might be in attendance.

            2. The EEOC’s Decision Constitutes a Misinterpretation of Various
            Statutory Provisions within Title 5 and the CSRA
¶14        In addition to judicial and Board precedent, the term “civil service law”
      embodies statutory provisions that are within Title 5, enacted as part of the
      CSRA, and have a bearing on civil servants.          See Horner v. Merit Systems
      Protection Board, 815 F.2d 668, 671 (Fed. Cir. 1987). The EEOC’s categorical
      exclusion of time and attendance as essential functions is contrary to the
      comprehensive personnel management scheme that Congress created in enacting
      the CSRA that clearly gives agencies the primary authority to identify, in the first
      instance, essential functions of a position. For example, in 5 U.S.C. §§ 6101 et
      seq., Congress explicitly gives each agency head the authority and responsibility
      to establish the basic workweek and tours of duty necessary to carry out the
      agency’s functions. Likewise, under implementing regulations promulgated by
      OPM at 5 C.F.R. § 610.121(b)(1), the agency head must schedule the work of his
      or her employees to accomplish the mission of the agency.
¶15        Similarly, chapter 43 of Title 5 governs performance management in the
      federal government.    Congress mandated that agencies “establish performance
      standards which will, to the maximum extent feasible, permit the accurate
      evaluation of job performance on the basis of objective criteria (which may
      include the extent of courtesy demonstrated to the public) related to the job in
      question for each employee or position under the system” and must routinely
      communicate performance standards and the “critical elements of the employee’s
      position.” 5 U.S.C. § 4302(b). In its implementing regulations, OPM defines
      “performance” as the “accomplishment of work assignments or responsibilities”
      and “performance standard” as the “management-approved expression of the
                                                                                     12

      performance threshold(s), requirement(s), or expectation(s) that must be met to be
      appraised at a particular level of performance . . . [and] may include, but is not
      limited to, quality, quantity, timeliness, and manner of performance.” 5 C.F.R.
      § 430.203 (emphasis added).     A “critical element” of a position is “a work
      assignment or responsibility of such importance that unacceptable performance
      on the element would result in a determination that an employee’s overall
      performance is unacceptable.” Id.
¶16        Congressional regard for the agency’s authority, in the first instance, to
      determine terms and conditions of employment is similarly expressed in the labor
      relations provisions of the CSRA. See 5 U.S.C. §§ 7101 et seq. Specifically,
      5 U.S.C. § 7106 gives management exclusive authority, subject to undertaking
      permissive bargaining, with regard to assigning work, determining the personnel
      by which the agency operations shall be conducted, and taking disciplinary
      actions.   Indeed, the Federal Labor Relations Authority has long held that “a
      decision as to what will constitute an employee’s tour of duty is a decision by
      management as to when and where an employee’s services can best be used,” and
      that therefore, any change in an employee’s tour of duty is negotiable only at its
      election under 5 U.S.C. § 7106(b). See Department of the Air Force, Scott Air
      Force Base, Illinois and National Association of Government Employees, Local
      R7-23, 33 F.L.R.A. 532, 1988 WL 213548, at *9-*10 (F.L.R.A. Oct. 28, 1988).
      Thus, the EEOC’s decision misinterprets various statutory provisions within Title
      5 and the CSRA.

      C. The EEOC’s Decision That the MSPB Misinterpreted Discrimination Law Has
      No Reasonable Basis
¶17        In finding that the appellant failed to prove his affirmative defense of
      disability discrimination, the Board did not misinterpret discrimination law. The
      EEOC’s determination that the Board erred in this regard has no reasonable basis.
      The appellant claimed that the agency discriminated against him by failing to
      accommodate his disability of sleep apnea. ID at 9. In accordance with both
                                                                                      13

civil service and discrimination law, the administrative judge correctly noted that
the appellant bore the burden of proof with regard to his affirmative defense of
disability discrimination. 9 She also recognized that an agency must provide a
reasonable accommodation to the known limitations of a qualified individual with
a disability unless to do so would create an undue hardship, and that its failure to
do so constitutes disability discrimination. ID at 9-10. She correctly explained
that, in order to prevail on his disability discrimination affirmative defense, the
appellant must show, as a threshold matter, that he is a qualified individual with a
disability. 10 ID at 9-10. The administrative judge properly defined “qualified
individual with a disability” consistent with the cited authorities at 42 U.S.C.
§ 12111(8), 29 C.F.R. § 1630.2(m), and the Board’s decision in Simpson, as “a
person with the skills, experience, education and other job-related requirements
of the employment position such individual holds and who, with or without
reasonable accommodation, can perform the essential functions of such position.”
ID at 10-11. As a result, the administrative judge clearly committed no error of
discrimination law in setting forth the legal parameters of the appellant’s
affirmative defense.


9
  The administrative judge also properly explained that as a federal employee, the
appellant’s claim of discrimination on the basis of disability arises under the
Rehabilitation Act of 1973; the regulatory standards for the Americans with Disabilities
Act (ADA), and the Americans with Disabilities Act Amendments Act of 2008, Pub. L.
No. 110-325, 122 Stat. 3553, are incorporated by reference into the Rehabilitation Act;
and, thus, the Board applies them in determining whether there has been a
Rehabilitation Act violation. ID at 3 n.5 (citing 29 U.S.C. § 791(g); Simpson v. U.S.
Postal Service, 113 M.S.P.R. 346, ¶ 8 (2010)).
10
   The administrative judge also indicated that, in order to prevail, the appellant must
articulate to the extent possible a reasonable accommodation under which he believes
that he could perform the essential duties of his position or of a vacant funded position
to which he could be reassigned. As the Board subsequently noted, however, this was
error insofar as it suggested that the appellant’s ultimate burden of proof was less than
one of preponderant evidence.          Alvara v. Department of Homeland Security,
116 M.S.P.R. 627, ¶ 4 n.1 (2011).
                                                                                       14

¶18         Similarly, the evidentiary record fully supported the administrative judge’s
      findings and conclusions of law as to the appellant’s failure to establish his claim
      of disability discrimination. Specifically, as a reasonable accommodation for his
      sleep apnea, the appellant requested that his work schedule be modified so that he
      not be assigned to the graveyard shift and only be required to work limited
      amounts of overtime.      ID at 11.   The agency argued that these restrictions
      precluded finding that the appellant was a qualified individual with a disability
      because working rotational shifts and substantial overtime are essential functions
      of the CBPO position. ID at 11-22. After a thorough examination of the record
      and testimony, the administrative judge found that: “all of the witnesses testified
      that working rotating shifts and significant amounts of overtime were essential
      functions of the CBPO position”; “both the CBPO’s medical standards and
      physical requirements and the CBPO position description provide that CBPOs
      work rotating shifts”; and the “position description clearly states that the CBPOs
      perform substantial amounts of overtime.”       ID at 22.   In addition, she cited
      Bouffard v. Michael Chertoff, Secretary, Department of Homeland Security (U.S.
      Customs and Border Protection), EEOC Appeal No. 0120065257, 2008 WL
      276452, at *5 (Jan. 16, 2008), an EEOC opinion holding that the ability to work
      rotational shifts and overtime was an essential function of the CBPO position.
¶19        The appellant petitioned for review of the initial decision by the full Board.
      He did not directly challenge the administrative judge’s decision to sustain the
      agency’s charge of physical inability to perform the functions of his position, but
      rather alleged error in the judge’s adjudication of his discrimination claim. In
      particular, he challenged the judge’s finding that the ability to work the graveyard
      shift and substantial overtime is an essential function of his position and that his
      inability to carry out that function precluded him from being a qualified
      individual with a disability.
¶20        In its decision, the Board quoted verbatim from the EEOC’s regulation at
      29 C.F.R. § 1630.2(n)(3), which lists the following factors as relevant in
                                                                                      15

      determining whether a function is essential: “the employer’s judgment as to
      which functions are essential; written job descriptions prepared before advertising
      or interviewing applicants for the job; the amount of time spent on the job
      performing the function; the consequences of not requiring the incumbent to
      perform the function; the terms of a collective bargaining agreement; the work
      experience of past incumbents in the job; and/or the current work experience of
      incumbents in similar jobs.” Alvara, 116 M.S.P.R. 327, ¶¶ 6-7. Acknowledging
      that the administrative judge had not expressly invoked these regulatory factors,
      the Board nonetheless found that her analysis of the evidence demonstrated that
      she had considered them in finding that the ability to work all rotational shifts
      and significant overtime was an essential function of the CBPO position. Id., ¶ 7.
      Specifically, the Board noted that she considered the employer’s judgment on the
      issue expressed through the consistent testimony of the six agency witnesses,
      including testimony that granting the appellant’s requested accommodation would
      circumvent the agency’s collective bargaining agreement; the official position
      description, as well as the medical and physical requirements of the CBPO
      position. Id. The Board also found that the administrative judge had properly
      cited and deferred to the EEOC’s decision in Bouffard. Id.
¶21        There is no question that in both its initial and final decisions, the Board’s
      adjudication of the appellant’s affirmative defense of disability discrimination
      was entirely consistent in every respect with the statutory and regulatory
      authorities governing that question. Specifically, the Board’s consideration of
      whether the ability to work rotational shifts and significant overtime is an
      essential function of the CBPO was precisely aligned with the EEOC’s regulation
      setting forth the types of factors and evidence to be considered in examining that
      question.   Nevertheless, in considering the Board’s decision pursuant to its
      authority under 5 U.S.C. § 7702(b)(1), the EEOC declared that Bouffard was
      wrongly decided on the issue of the essential functions of the CBPO position and
      overturned it on that point, announcing a categorical exclusion of time and
                                                                                      16

      attendance requirements from essential functions.     The EEOC then concluded
      that, “as the Board relied upon Bouffard in finding that the essential functions of
      a CBPO include working rotating shifts and significant amount of overtime,” its
      decision constituted an incorrect interpretation of discrimination law.        The
      EEOC’s position is unreasonable by any standard.
¶22        Contrary to the majority’s characterization of the Board’s decision as
      relying “heavily” on Bouffard, Spec. Pan. Op., ¶¶ 11, 39, the Board did not rely
      solely, or even primarily, on Bouffard in finding that the essential functions of
      the CBPO position include rotational shifts and significant overtime.      Alvara,
      116 M.S.P.R. 627, ¶¶ 6-7. Rather, it looked first and foremost to the EEOC’s
      regulation at 29 C.F.R. § 1630.2(n)(3) in analyzing the record in light of the
      factors that the EEOC itself has identified as relevant in assessing whether a
      function is essential. Alvara, 116 M.S.P.R. 627, ¶ 7. In this regard, the Board
      relied on the testimony of six agency witnesses—all of whom testified
      knowledgeably and at length as to the essential nature of the shift and overtime
      requirements of the CBPO position. Id.; see 29 C.F.R. § 1630.2(n)(3)(i). The
      Board relied on the official position description, as well as the preexisting
      medical and physical requirements for the position. Alvara, 116 M.S.P.R. 627,
      ¶7; see 29 C.F.R. § 1630.2(n)(3)(ii). The Board noted the agency’s concern that
      accommodating the appellant would circumvent its collective bargaining
      obligations. Alvara, 116 M.S.P.R. 627, ¶ 7; see 29 C.F.R. § 1630.2(n)(3)(v).
      Consequently, whatever deference may be accorded the EEOC’s decision to
      overturn Bouffard at this juncture, it by no means compels the conclusion that the
      Board erred in finding that the appellant was not a qualified individual because
      his disability precluded him from performing the essential functions of his
      position.
¶23        But even if the Board had relied exclusively on Bouffard, the EEOC’s
      decision to overturn that opinion in the context of its review here does not render
      the Board’s decision defective as a matter of discrimination law. In overturning
                                                                                         17

      Bouffard, the EEOC announced a major rule of law in holding that time and
      attendance requirements can never be deemed to be functions, much less essential
      functions, of a position. Petitioner v. Jeh C. Johnson, Secretary, Department of
      Homeland Security (Customs and Border Protection), EEOC Petition No.
      0320110053, 2014 WL 3571431, at *5 (E.E.O.C. July 10, 2014). It did so citing
      its Enforcement Guidance and “precedential federal sector cases.” Id. at *6. As
      to the deference afforded the EEOC’s guidance, however, the Supreme Court has
      repeatedly declined to find that the EEOC’s interpretive guidelines have the force
      of law and to give those guidelines deference under Chevron, U.S.A., Inc. v.
      Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Vance v. Ball
      State University, 133 S. Ct. 2434 (2013); University of Texas Southwestern
      Medical Center v. Nassar, 133 S. Ct. 2517 (2013); Hosanna-Tabor Evangelical
      Lutheran Church and School v. Equal Employment Opportunity Commission, 132
      S. Ct. 694, 707 (2012). Furthermore, none of the federal sector cases cited in the
      EEOC decision support the proposition that time and attendance requirements can
      never be deemed essential functions. See, e.g., McCullough v. Marvin T. Runyon,
      Jr., Postmaster General, U.S. Postal Service, (S.E./S.W. Region), EEOC Request
      No. 05950539, 1996 WL 33276703 (E.E.O.C. Apr. 25, 1996) (“in a case
      involving excessive absences from work, a complainant may prove that he or she
      is a ‘qualified disable person’—in spite of such absences—by first showing that
      there is a sufficient nexus between the absences and the purported disability”).
¶24        Moreover, although the EEOC’s Guidance may reflect its theory that
      “functions” comprise only the activities or duties of a position leading to
      outcomes, and hence, can never include time and attendance requirements,
      nothing in the EEOC’s formal regulations hints at, much less compels, such a
      reading of the ADA. In fact, the opposite is true insofar as those regulations
      clearly contemplate a case-by-case approach to the question of essential
      functions. See 29 C.F.R. § 1630.2(n). Furthermore, the EEOC’s position in this
      regard is contrary to the overwhelming weight of judicial authority. See, e.g.,
                                                                                      18

      Rios-Jiminez v. Principi, 520 F.3d 31, 42 (1st Cir. 2008) (“at the risk of stating
      the obvious, attendance is an essential function of any job”); Mason v. Avaya
      Communications, Inc., 357 F.3d 1114, 1122 (10th Cir. 2004) (physical attendance
      was an essential function of the position because it required teamwork and
      supervision); Jovanovic v. In-Sink-Erator Division of Emerson Electric Co., 201
      F.3d 894, 899-900 (7th Cir. 2000) (“Common sense dictates that regular
      attendance is usually an essential function in most every employment setting”);
      Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996);
      Tyndall v. National Education Centers, Inc., 31 F.3d 209, 213 (4th Cir. 1994);
      Jackson v. Veterans Administration, 22 F.3d 277, 279 (11th Cir. 1994) (daily
      attendance may be, but is not always, an essential function); see also Jefferson v.
      Time Warner Cable Enterprises LLC, No. 12-5714, 2014 WL 3973513 (9th Cir.
      Aug. 15, 2014).
¶25        Contrary to the majority’s view, the Board did not “misunderstand” or
      “misread” the Commission’s decision.      Spec. Pan. Op., ¶¶ 27-30.    Rather, the
      Board fully and correctly understands the Commission’s decision as categorically
      excluding time and attendance requirements from being deemed essential under
      the ADA on the theory that they are not functions at all.          As such, it is
      incongruous to conclude, as does the majority, that “nothing in the Commission’s
      decision restricts or prohibits any agency’s managerial and operational
      prerogatives or any agency’s right to establish the terms and conditions of
      employment.”      Id., ¶ 31.   On the contrary, the EEOC’s decision effectively
      eviscerates the authority of federal agencies, in the first instance, to establish
      time and attendance requirements as essential terms and conditions of
      employment.
¶26        At the same time, the majority widely misses the mark in describing the
      Board’s decision as holding that an agency has “unfettered discretion” to define
      essential functions or that management’s evaluation of a position’s essential
      functions as “dispositive.”    Spec. Pan. Op., ¶ 28.   As evidenced in its initial
                                                                                            19

      decision, which the Board adopted, the administrative judge undertook the very
      fact-specific, case-by-case approach to the question of essential functions that is
      prescribed in the EEOC’s own regulations.             She concluded, based on the
      overwhelmingly consistent witness testimony, the position description, and the
      pre-established medical and physical requirements of the position, that working
      rotational shifts and significant overtime were essential functions of the CBPO
      position. These are all factors which the EEOC has identified under 29 C.F.R.
      § 1630.2(n) as relevant in assessing what are essential functions. The Board’s
      decision therefore was entirely consistent with the EEOC’s regulations, existing
      precedent, and judicial authority and, as such, cannot be found to be a
      misinterpretation of discrimination law.
¶27         The majority regrettably concludes that, because this case implicates
      discrimination law within the purview of the EEOC, 11 “that is the end of the
      story.” Spec. Pan. Op., ¶ 45. In so doing, it follows in the misguided tradition of
      previous Special Panels in deferring to the EEOC whenever the dispute concerns
      discrimination law. However, in my view, this is an abdication of its statutory
      responsibility to resolve important issues, such as that facing the Special Panel




      11
        The majority summarily finds that the “Commission’s interpretation of discrimination
      law and their decision are reasonable,” Spec. Pan. Op., ¶ 45, without any analysis of the
      EEOC’s departure from its own regulation in announcing the categorical exclusion of
      time and attendance requirements from essential functions or of its cramped
      interpretation of “function” to exclude such requirements contrary to the position
      adopted by most federal courts of appeal.
                                                                  20

here, in which civil service and discrimination law converge but the
interpretations of the MSPB and the EEOC do not.



______________________________
Anne M. Wagner
Vice Chairman
Merit Systems Protection Board
