Performance of Essential Duties

The Merit Systems Protection Board (MSPB) recently upheld the decision of an administrative judge (AJ) affirming the removal of a GS-11 Customs and Border Patrol Officer (CBPO) for physical inability to perform, finding that the employee did not establish that the Department of Homeland Security discriminated against him on the basis of disability. Alvara v. Dep't of Homeland Sec., 2011 MSPB 75 (Aug. 17, 2011).

Alvara suffers from sleep apnea, a permanent condition which requires him to get 8 hours of nocturnal sleep per night and thereby precludes him from working a night shift or performing substantial amounts of overtime. Upon the appointment of a new agency port director, the agency found that Alvara could not perform his full range of duties. Alvara requested to not work a night shift and substantial overtime on a permanent basis due to his disability, but the agency denied his request, finding that it was not a reasonable accommodation. The agency effected Alvara's removal after a search for suitable positions within his commuting area was unsuccessful.

The AJ found that Alvara is not a qualified individual with a disability because he cannot perform the essential functions of his position with or without reasonable accommodation. The AJ held that working night shifts and significant overtime is an essential function of the position since overtime is necessary for the agency to fulfill its mission, no CBPO had ever been permanently exempted from working overtime or the graveyard shift, the CBPO position description included requirements for performing "substantial amounts of overtime," and the requirement that CBPOs be able to work the graveyard shift and significant overtime was a factor in the classifying and grading of the position, among other reasons. The AJ also took into account in making her decision an EEOC case, Bouffard v. Dep't of Homeland Sec., EEOC Appeal No. 0120065257 (Jan. 16, 2008), which found that the ability to work rotational shifts and overtime is an essential function of the CBPO position and the accommodation of not having to work rotational shifts and overtime is in essence a request to change the essential function of the job, which the agency is not required to do.

The removal was in response to the new port director's finding that an unusually large number of employees were working on light duty and management had not been following up on their progress. Despite arguments that the agency did not consider the availability of other CBPOs to work the graveyard shift and that the agency had exempted him from working the graveyard shift for a period of time with apparently no adverse affects on the agency's mission, the MSPB agreed with the AJ's determination that the removal was not discriminatory and that it promoted the efficiency of the service.

*This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com.