Reynaldo Alvara v. Department of Homeland Security

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.

2

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

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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

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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.

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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.

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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

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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