CBP MANAGEMENT AGAIN SHOOTS WILDLY FROM THE HIP
While bargaining unit Customs and Border Protection (CBP) Officers must meet a very high standard for firearm accuracy, my more than 40 years of experience with CBP demonstrated that CBP managers often shoot from the hip—and possibly blindfolded. It happened again where an applicant for a CBP Officer position who had myasthenia gravis was rejected. Management sprayed claims all around without ever zeroing in on the actual target or legal issue in the case. Here is the story behind how the applicant just got the job, four years of back pay, and extra money to cover compensatory damages and the income tax hit of receiving such a large check in one year.
The Agency stated that an individualized medical assessment of Complainant’s documents showed that his relapse of myasthenia gravis could result in muscle weakness; fatigue; and impaired vision, which disqualified him from the CPBO position. The Agency further found that Complainant’s “high likelihood” of relapse if his medication doses were missed or altered did not meet the Agency’s medical standards. However, the EEOC decision highlighted that, with safety requirements that screen out or tend to screen out individuals with a disability, an employer must demonstrate that the requirement is job-related and consistent with business necessity, which can be met by showing that the requirement satisfied the “direct threat” analysis set forth in 29 C.F.R. § 1630.2(r) and 29 C.R.F. § 1630 App. § 1630.15(b) and (c).
In this case, Complainant’s medical providers indicated that there were no contraindications for his work in law enforcement. They further confirmed that Complainant’s compliance and response to his medications were currently good, that his condition had been stable, and that he had no limitations in terms of using a firearm or otherwise performing the listed duties of a CBPO position. As such, the EEOC found that the Agency did not demonstrate a significant risk of substantial harm to the safety of Complainant or others. Indeed the Commission called the CBP management claim “was far too speculative and remote.” Nice shot, management.
CBP did include a direct threat analysis in the final decision, but it failed to explain how its qualification standard was job-related and consistent with business necessity. The standard for a direct threat is not to show that an applicant is “not medically qualified.” A person is a “direct threat” if he or she poses a “significant risk of substantial harm” to the health and safety of himself/herself or others, which cannot be eliminated or reduced to an acceptable level by reasonable accommodation. In determining whether an individual would pose a direct threat, the factors to be considered include:
1) the duration of the risk;
2) the nature and severity of the potential harm;
3) the likelihood that the potential harm will occur; and
4) the imminence of the potential harm. 29 C.F.R. § 1630.2(r).
There was no evidence in the record that the Agency considered these factors.
Essentially, management argued “Ah gee, we just don’t want a guy with a medical condition that sounds scary.” We can’t count how many times we have read decisions noting that CBP officialdom “failed to explain” something or lacked any evidence that [it] considered the criteria clearly spelled out in the law.
Aside from getting the job and a bundle of cash, the employee’s EEOC decision requires that the “Agency shall consider taking disciplinary action against the Medical Review Officer, Supervisory Nurse Consultant, and Supervisor Human Rights Specialist.”
This decision can be particularly helpful to union reps trying to help current employees rejected for promotion into higher level agency jobs because of a disability or medical condition. For more details, check out Levi P., v. Alejandro N. Mayorkas, Sec’y, DHS (CBP), EEOC Request No. 2023001817, EEOC Appeal No. 2021004021 (2023)