GILBERT & BROIDA RESCUE DISABLED CBP OFFICERS

Way back in 2014 we wrote about a Customs and Border Patrol Officer with sleep apnea who asked to not be assigned to night shift or overtime work because his condition required that he get eight straight hours of sleep a night. The agency terminated him because it believed that these were essential duties of the job and there was no way to reasonably accommodate such a request. Although EEOC ruled the employee’s rights were violated, MSPB overruled EEOC and upheld the termination in August 2014. It agreed with the agency that it could never allow an employee to get out of working overtime or nights. The employee went looking for help to represent him in the very unusual Special Panel appeal process and to his good fortune (as well as that of all other temporarily or permanently disabled CBP Officers) the attorneys at Gilbert Employment Law took on the case. Given its legal significance to all CBP Officers the Panel allowed other parties to file amicus briefs, at which point Peter Broida, a renowned expert in MSPB matters, joined Gilbert in this fight. To make a long story short, they won and got the employee reinstated with back pay and compensatory damages. But it is important to understand what rights this case did and did not establish for all CBP Officers.

The employee was terminated for the 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. His sleep apnea, a permanent condition, required him to get 8 hours of nocturnal sleep.  Prior to his termination, the employee requested that the agency provide him with certain reasonable accommodations. He 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.) 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.

The Special Panel, composed of Presidential appointees at the EEOC and MSPB, looked at management’s reasons for denying the employee’s request and terminating him.  It found that the agency made only generalized conclusions and assessments supporting its view that providing a reasonable accommodation would result in an undue hardship to the agency. It went on to write, “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.…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.”

The decision did not rule that working nights and overtime were unessential functions of the CBP Officer’s job, although knowing more than a few things about the CBP job we at Fedsmill believe they would have ruled they were not if they knew how those systems operate at CBP. Rather, it focused on the agency’s “drive-by” legal analysis of the law and said that it failed to follow the law.

Specifically, it ruled, “Several factors must be considered in determining whether a requested reasonable accommodation is an undue hardship. The [EEOC] 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. It is not sufficient to merely state in a conclusory manner that an accommodation would be an undue hardship…. 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. In the instant case, it was not unreasonable for the Commission to find that the agency did not meet its burden.”

Check out Alvara v. DHS, 2014 MSPB 77 (2014) for details.

So, we are deleting from our Fedsmill blog site the 2014 story and updating you on what now stands as very important precedent for those feds whose agencies demand they be available for overtime and night shift work.