Developments at the MSPB: A recent case has placed the Merit Systems Protection Board (MSPB) and the Equal Employment Opportunity Commission (EEOC) into conflict over reasonable accommodations involving modified work schedules to disabled employees.
The case involves the Department of Homeland Security's removal of Reynaldo Alvara from his position as a Customs and Border Patrol Officer. Mr. Alvara's sleep apnea limited his ability to work the graveyard shift or to perform overtime. After accommodating Mr. Alvara for a time, the Agency cancelled his reasonable accommodation. After finding no alternative positions, the Agency removed Mr. Alvara for medical inability to perform. Mr. Alvara appealed his removal to the MSPB as a mixed case, alleging disability discrimination(failure to reasonably accommodate). Relying on the EEOC's decision in Bouffard v. Dept. of Homeland Security, EEOC Appeal No. 0120065257 (Jan. 16, 2008), the MSPB administrative judge and the MSPB itself both sustained the removal. In its decision (116 M.S.P.R. 627 (2011)) , the MSPB noted that under Bouffard, an agency is not required to modify schedules as a reasonable accommodation where the ability to work rotational shifts or overtime is an essential function of the position.
Mr. Alvara then appealed the MSPB's decision to the EEOC, alleging that the MSPB erred in deciding his disability discrimination claims. The EEOC reversed the MSPB (EEOC Petition No. 0320110053 (July 10, 2014)). In doing so, the EEOC overruled Bouffard. In its place, the EEOC held--consistent with its Enforcement Guidance and other decisions--that the schedule for Mr. Alvara's position was not itself an essential function of his particular position. The EEOC held that it was not an undue hardship for the Agency to reasonably accommodate Mr. Alvara with a stable schedule. The EEOC thus found the MSPB's decision erred in terms of discrimination law, and remanded the case to the MSPB.
In most mixed cases where the EEOC overrules the MSPB on an issue of discrimination law, the MSPB defers to the EEOC. However, in this rare instance, the MSPB refused to do so. In an August 13, 2014, decision (2014 MSPB 63), the MSPB rejected the EEOC's decision. The MSPB found that, despite the EEOC overruling Bouffard, Mr. Alvara's removal should be sustained. In doing so, the MSPB argued that the decision over what constitutes an essential function of a position is a matter of civil service law in which the EEOC should defer to the MSPB, and not a discrimination issue in which the MSPB should defer to the MSPB.
This conflict sets the stage for the rare use of the Special Panel. Under 5 U.S.C. 7702(d), the 'tiebreaker' for disputes between the EEOC and the MSPB in mixed cases is the three-member Special Panel, consisting of A. one member of the EEOC designated by the EEOC Chair, B. one member of the MSPB designated by the MSPB Chair, and C. the Chair of the Special Panel appointed by the President (currently Dennis P. Walsh, the current Region 4 regional director for the National Labor Relations Board). The Special Panel issues its decision within 45 days.
If you are a federal employee faced with an adverse action and/or possible discrimination, and wish to discuss your rights, consider contacting Passman & Kaplan, P.C. to request an initial consultation.