MSPB just took away from Customs and Border Protection Officers a right many other federal employees have under the disability discrimination laws to a particular accommodation.  It is charitable to characterize the Board’s thinking as merely reckless.  (Alvara, 2014 MSPB 63 (2014))

Reynaldo Alvara, a GS-11 CBP Officer, had sleep apnea. Based on his medical documentation, management granted him a disability accommodation of only working day shifts and no overtime so that he could sleep the same eight hours every night. After working that way for months, a new supervisor arrived and withdrew the accommodation.  She alleged that working rotating shifts and overtime were “essential duties” of the CBPO job. When Alvara refused to work under those conditions, she fired him.

Alvara appealed to MSPB alleging disability discrimination.  That required it to refer the case to EEOC as a mixed case.  Disability discrimination law requires that an employee be able to perform the essential functions of a job, with or without a reasonable accommodation, in order to be entitled to the accommodation.

EEOC’s held that Mr. Alvara could do the “essential functions” of the position without having to work rotating shifts and overtime and that the agency failed to show that his requested accommodation was unreasonable.   That should not surprise anyone given that his previous supervisors had agreed he was entitled to the accommodation and he worked under it without any negative consequences. After all, there are usually dozens, if not hundreds, of CBPOs in any given port who are all trained to do the core job of clearing travelers and cargo into the country over multiple shifts a day, seven days a week.  If one falls sick, another is plugged in via a mechanical negotiated replacement system.  While there are usually several hundred hours of overtime work each year per Officer, it is well known that some Officers will gladly work their own and other Officer’s overtime without any extra cost to CBP. It is also well-known that the degree to which shifts rotate varies from port to port, largely based on management preference.

When the EEOC decision was forwarded to the Board for analysis under the adverse action law, it rejected EEOC’s conclusion, holding that rotating shifts and overtime were “essential functions” of the job.  It declared that such an accommodation is “unreasonable from a management/operational perspective,” but conveniently chose not to explain how it reached that sweeping conclusion given that (1) every day someone in the port must work the day shift, (2) it is rare that no one wants an overtime opportunity, (3) the accommodation had been in place for months without incident, etc.  Here are a few reasons why the Board’s decision seems reckless to us.

  • Early in its analysis of the case, the Board stated that it was rejecting the EEOC’s Alvara decision about whether rotating shifts and overtime were essential functions, in favor of applying a 2008 CBP Officer decision that the EEOC has since said was incorrectly decided.  The Board did that despite the normal rule that it give deference to EEOC’s interpretation of discrimination statutes by declaring MSPB, “need not defer to the EEOC’s interpretation of what constitutes a civil service law, rule, or regulation, the interpretation of which falls squarely within the purview of the Board’s area of expertise.”  However, just like it unsubstantiated pronouncement that the accommodation was unreasonable, it again failed to cite the civil service law, rule or regulation it was interpreting as more powerful than a civil rights law.”
  • The Board made an indirect reference to CBP Officers being law enforcement officers in order to support both unsubstantiated claims. It assumed that no one would question the need for law enforcement officers to work overtime. (It made no mention of the occupations need to work rotating shifts.) However, technically, CBP officers are law enforcement officers. If the Board had bothered to check, it would have found OPM has stated the following about the defined CBP Officer classification and law enforcement retirement status: “This definition, while similar to the statutory definition of ‘law enforcement officer,’ contains important differences that distinguish it from that definition.”  The Board also sprinkled around references to statutory sections that it claims support its assertion that CBP Officers are law enforcement officer, e.g. 5 USC  8412(d) and 8336(c)(1), but neither says what the Board recklessly alleges.
  • After second-guessing EEOC as to whether the 2008 or Alvara CBP decisions was the correct one under discrimination laws, the Board criticized EEOC for suggesting MSPB second-guess the employing agency’s unsupported assertion that rotating shifts and overtime were essential functions. Moreover, not only did it refuse to second guess agency declarations about what functions are essential, but it also bestowed, “substantial weight” on the employer’s view of job requirements.  It cited a private sector court decision as the basis for that without any recognition that federal employees, unlike private sector employees, are protected by an adverse action statute.  Rather than deferring to agencies that law the places the burden on them to prove their allegations by the preponderance of evidence.  In other words, MSPB is actually required by law to second-guess employers until the agencies prove something by the preponderance of evidence, not just assertion.
  • Aside from ignoring EEOC’s Alvara decision, MSPB made the decision about essential functions without applying the regulatory criteria.

Essential functions—

(1) In general. The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position.

(2) A job function may be considered essential for any of several reasons, including but not limited to the following:

(i) The function may be essential because the reason the position exists is to perform that function;

(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

(3) Evidence of whether a particular function is essential includes, but is not limited to:

(i) The employer’s judgment as to which functions are essential;

(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;

(iii) The amount of time spent on the job performing the function;

(iv) The consequences of not requiring the incumbent to perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job; and/or

(vii) The current work experience of incumbents in similar jobs.

In contrast to the Board’s grant of “substantial weight” to agency opinions as to what are essential functions, note that under the formal criteria employer opinion is only one of seven sources of evidence on that question.  Even the ADAAA statue only requires that employer opinion be considered. See 42 USC 12111(8).

  • The board’s ruling creates a conflict with EEOC and FLRA law.  For example, if a CBP Officer asks to be relived of overtime and shift assignments that conflict with her religious worship obligations, EEOC has held she is entitled to that. (See “Christians-1, CBP Management- Minus $28,600.”  Given that the Alvara case is characterized by the Board as precedential does it mean that CBP can now go back and notify all those employees with shift and overtime accommodations that they will be fired unless they conform to local management’s scheduling preferences.  The FLRA has held that employees are entitled to negotiate for the right to swap assignments. (See “The Right to Swap Jobs.”  Does this board decision now take away the decades of case law underlining that ruling? (Thanks for that job-site chaos, MSPB. Imagine the money that will be spent trying to unravel this)
  • Speaking of money, the Board showed no consideration for all the money CBP spent on behalf of taxpayers to hire and train Alvara for the three years he had been in the job.  That likely exceeded $100,000 of taxpayer money the Board just let CBP flush down the drain because the new local CBP manager did not want to deal with what is at best an inconvenience—and in no way a hardship. Just as bad as that ids the reality that now that Alvara has been fired, it will not only likely be months before he is replaced, but his replacement is likely to be a GS-5/7 trainee.  Where is the efficiency of the service in that?

If the Alvara decision stands, it will be very difficult for any CBP Officer to ever get an accommodation relieving him/her from rotating shifts and overtime.  As noted above, MSPB labeled this a precedential case. Sadly, it is now solely up to Mr. Alvara whether this case becomes precedent for all future cases or is challenged all the way to court.  Typically, federal employees, especially fired federal employees, do not have the financial resources to fight a case that far. NTEU, the employee’s exclusive representative, could step in and offer to fund or take an appeal to court.  After all, it is not just Alvara who has lost something here.  All 18,000 CBP Officers have lost as well.  (See the accompanying post, “NTEU’s Alvara-Rassenfoss Dilemma” for a discussion of the question of how this case got this far without NTEU’s involvement.)

But coming into the case this late is far from ideal.  The best the union can hope for is a court ordered remand requiring MSPB to examine each of the seven source of evidence on the question of what is an essential function.  If it can get that, it could then try to build a different factual record making it harder for the Board to so cavalierly all but exempt CBP Offices from the protections of the disability laws.

Aside from the other potential evidence and flaws in MSPB’s current ruling, we also believe that this case presents a good opportunity to address the question of whether all overtime is an essential function or only certain kinds. For example, should work hours scheduled prior to the beginning of the administrative workweek, that due to circumstances must be worked on overtime, be treated the same as overtime worked required because of an unforeseen event, such as an arrest of a smuggler?

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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