The Alvara case posed an interesting question in MSPB appeals: is the inability to work overtime or a graveyard shift enough of a disability that it must be accommodated? The Merit Systems Protection Board did not think so.
Reynaldo Alvara v. The Department of Homeland Security. MSPB Docket No. DA-0752-10-0223-E-1.
In January of 2010, appellant Reynaldo Alvara filed a mixed case MSPB appeal. Mr. Alvara’s appeal took issue with him losing his job as a Customs and Border Protection Officer with the Department of Homeland Security, United States Customs and Border Protection. The reason was for a physical inability to meet the conditions of his employment which was due to a medical condition. The agency determined that the appellant could not perform all of the essential functions of his position.
Mr. Alvara suffers from a permanent condition called sleep apnea. As a result, he must get eight hours of sleep at night. Before he lost his job, Mr. Alvara asked that the agency make certain reasonable accommodations. He asked for a modified work schedule which would allow him to get sleep each night. This included proposing a schedule of 12-hour shifts (6:00 a.m. to 6:00 p.m.; 8:00 a.m.to 8:00 p.m.; and 10:00 a.m. to 10:00 p.m.).
This request would have exempted him from the agency’s graveyard or overnight shift (this was the midnight to 8:00 am shift). It would also have exempted him from any overtime which would make him to work during those hours.
In his MSPB appeal, Mr. Alvara said the agency discriminated against him in violation of Section 501 of the Rehabilitation Act. That was when it denied his request for accommodation. He said they also retaliated against him for engaging in protected equal employment opportunity activity.
In December of 2010, the MSPB administrative judge affirmed the agency’s removal for physical inability to meet the conditions of his employment because of a medical condition. The administrative judge determined that Mr. Alvara was not a qualified individual with a disability entitled to a reasonable accommodation under the Rehabilitation Act. This was because he could not perform the essential functions of his Customs and Border Protection Officer position whether or not he had accommodation.
In February of 2011, Mr. Alvara filed a petition for review of the administrative judge’s initial decision with the Board.
In his petition, Alvara argued that the administrative judge made an error. That error was in finding that the ability to work the graveyard shift and substantial overtime are essential functions of his position. So therefore his inability to perform those shifts would preclude him from being qualified. Alvara also argued that the agency failed to establish that his request for accommodation would pose an undue hardship.
In August of 2011, the Board affirmed, as modified, the administrative judge’s initial decision.
In September of 2011, appellant filed a petition to the EEOC. He sought review of the Board’s final order under 5 U.S.C. § 7702(b) (2).
Then in July of 2014, the Commission issued their decision. They differed with the Board’s finding that the agency did not discriminate against Mr. Alvara based on his disability. The Commission also determined the agency had failed to establish Mr. Alvara’s requested reasonable accommodation would pose an undue hardship.
The Commission then referred the matter to the Board for further consideration. This was because the EEOC’s decision had differed from the Board’s.
Was the removal of a Customs and Border Protection Officer proper? Did he prove disability discrimination because his request to be accommodated interfered with having to work overtime?
At the July of 2014 MSPB Special Panel, the Board ultimately rejected the Commission’s decision. Hence it certified the matter for the Special Panel. The Board felt that “under the mixed case system governed by 5 U.S.C. § 7702, the Board generally {had to defer} to the EEOC’s interpretation of discrimination law.” Alvara, 121 M.S.P.R. 453.
However, the Board also said:
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.
As a result, the Board reversed course from its original decision. That was where it had deferred to the EEOC’s interpretation of the anti-discrimination statute. The Board concluded it could not agree with the EEOC decision and therefore reaffirmed their earlier decision. The matter then went to a Special Panel. The majority of the Special Panel decided to defer to the EEOC and thereby adopted the EEOC’s decision as theirs.