Socorro Thome was a trained and experienced Customs and Border Protection Officer (CBPO) in the tough port of El Paso, Texas when she became pregnant in November 2010.  At that point, she began light duty work.  Following the birth and some FMLA leave, she returned to work in October 2011 approved to work without physical restrictions.  However, two weeks later she asked to be returned to light duty because she planned to breastfeed her child until he was one year old and his pediatrician “highly recommended” that the Officer continue on light duty while breastfeeding due to a concern that “she may be exposed to contaminants such as lead, drugs, or infectious diseases that may be transmitted to the child through breast milk.”  She backed that up with a note from her own doctor and in January 2012 email, an agency Labor and Employment Relations Specialist stated that she had determined that the appellant’s medical documentation was sufficient to support her request to remain on light duty while breastfeeding.  Three weeks later the Port Director gave her a letter insisting that she return to full duty or resign. When she refused to choose, he proposed to remove her on a charge of “Unavailability for Full Performance of Customs and Border Protection Officer Duties,” citing her “continued unwillingness or inability” to fully perform CBPO duties. The deciding official sustained the charge, noting that although Thome was medically able to fully perform her duties she chose to make herself unavailable.  He also stated that Thome’s demand to be isolated from lead, drugs, and infectious diseases was “literally impossible to fulfill” and pointe out that the National Institute for Occupational Safety and Health (NIOSH) had conducted a study which determined that “exposure for agency employees was within tolerable limits.” Do you see the error the agency made that guaranteed Thome would win the case?  (Hint: It has nothing to do with pregnancy discrimination.)

Here are some more facts. While the proposing official referred elsewhere in the notice to the appellant’s “unwillingness or inability” to perform full-time CBPO duties, he did not indicate that the action was based specifically on her unwillingness to return to full duty, as opposed to her unavailability per se. The deciding official also repeatedly testified at the hearing that the appellant was removed because she “refused” to return to full duty.  Finally, Thome’s reply addressed only the issue of her alleged “unwillingness or inability” to perform fulltime CBPO duties.  Got it yet?

Her private attorney, Deryn Sumner, of Silver Spring, Maryland did.  He claimed that CBP had removed her not because of an “unwillingness or inability” but because of a failure to follow instructions.  That is a different charge that turns on an entirely different body of case law than an unwillingness/inability question.  MSPB agreed stating, “…that the February 7, 2012 option letter, which offered the appellant the Hobson’s choice of returning to full duty or ending her employment with the agency, was tantamount to an order to return to full duty. The allegation that the appellant ‘refused’ to select the former option is indistinguishable from a charge of failure to follow instructions….we find the agency violated the appellant’s due process rights by failing to provide adequate notice of the charges against her.”   The ALJ who issued the initial MSPB decision would have reinstated her for a different reason.  He found that the agency failed to put the appellant on notice of the evidence on which it relied because the deciding official considered new and material information in the form of the NIOSH study. Both arguments seem legit to us and should be used in similar cases.  MSPB ordered the agency to reinstate Thome with back pay and interest. See Thome v. DHS,CBP, 2015 MSPB 27 (2015)

This case highlights the importance of closely reading the letter of charges and comparing it to the evidence of why the employee is REALLY being removed.  That evidence would be in the proposal or decision letter, evidence file or even in any statement the reply officer made. In this case, Thome’s attorney also used the hearing to drag some statements out of the proposing and deciding officials that betrayed the real reason.

The Board chose not to address Thome’s allegation of discrimination under the Pregnancy Discrimination Act.  But stay tuned because as the Board pointed out the Supreme Court is currently dealing with a nearly identical pregnancy discrimination claim.  If you represent a breastfeeding employee, read this case to see the distinction between alleging a Civil Rights Act violation versus a Pregnancy Discrimination Act claim.

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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