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Developments at the MSPB: Special Panel Rebuffs MSPB and Finds For Employee

Developments at the MSPB:  On September 29, 2014, a split Special Panel issued its decision in Alvara v. Dept. of Homeland Security, 2014 MSPB 77.  As previously analyzed in this blog, the Alvara case involved a dispute between the Merit Systems Protection Board (MSPB) and the Equal Employment Opportunity Commission (EEOC) over whether Mr. Alvara's removal for medical inability to perform should be overturned due to the agency's failure to reasonably accommodate Mr. Alvara with a modified schedule.  The Special Panel found in favor of the EEOC, with the case remanded to an administrative judge to order Mr. Alvara's reinstatement and to award compensatory damages and other relief.

Under its precedent, the Special Panel defers to the EEOC on issues of discrimination law and to the MSPB on issues of civil service law, so the first question in its analysis is what law is the crux of the dispute.  The Special Panel majority (Chair Dennis P. Walsh and EEOC Commissioner Chai Feldblum) found that the issue of Mr. Alvara's reasonable accommodation turned on a question of discrimination law rather than one of civil service law, and as a result deferred to the EEOC's decision that Mr. Alvara's removal was the result of a failure to reasonably accommodate him.  The majority faulted the MSPB's decisions below as failing to adequately articulate which civil service laws it contended were being violated by the EEOC's decision, and for failing to adequately articulate what facts in the record the EEOC misconstrued.  The majority also found that the issue of what constitutes an 'essential function' in a particular job which cannot be modified as part of a reasonable accommodation is ultimately a question of discrimination law, although the agency structures the job in the first instance.  Based on this analysis and on its finding that the EEOC's reasoning was not unreasonable overall, the majority deferred to the EEOC.

MSPB Vice Chair Wagner dissented from the Special Panel majority's decision.  She argued that the Special Panel's standard of review was itself fundamentally flawed.  Vice Chair Wagner contended that the issue of setting schedules was a clear matter of civil service law, citing MSPB and Federal Circuit precedent for attendance-based adverse actions.  She also criticized the EEOC's reliance on its own Enforcement Guidance in its decision below, noting certain unfavorable Supreme Court decisions which rejected that Enforcement Guidance.

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.

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