On September 29, 2014, in Alvara v. Department of Homeland Security, (MSPB Docket No. DA-0752-10-0223-E-1; EEOC Petition No. 0320110053), the rarely convened Special Panel adopted a July 10, 2014 decision of the EEOC which had found that attendance and timing are not essential functions of a position under the Rehabilitation Act.The Special Panel majority found that the agency was under an obligation to provide a reasonable accommodation to the Customs and Border Protection officer.

Alvara had requested an accommodation to not work the overnight shift and substantial overtime due to sleep apnea.The agency removed him for physical inability to perform his position, and on appeal to the MSPB the AJ found that Alvara failed to show that he could perform the essential functions of his position, which included working the overnight shift and overtime, with or without an accommodation.The MSPB full board upheld the AJ’s initial decision, finding that the ability to work rotational shifts and overtime was an essential function of the position and requesting to not work rotational shifts and overtime was in essence a request to change the essential functions of the job.

On a petition for review at the EEOC, the EEOC found the Board was in error, that Alvara could perform the essential functions of his job, and that the agency erred in denying his reasonable accommodation request.Alvara v. DHS/CBP, EEOC Petition No. 0320110053 (July 10, 2014).The Board, however, subsequently reaffirmed its prior decision.The Board found that 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 EEOC.Alvara, 121 MSPR 453.

Under 5 U.S.C. §7702(d), the tie-breaker for disputes between the EEOC and the MSPB in mixed cases is a three-member Special Panel which in this case consisted of Dennis P. Walsh (Chair of the Special Panel and Regional Director of the NLRB in Philadelphia), EEOC Commissioner Chai R. Feldblum, and MSPB Vice Chair Anne M. Wagner.The Special Panel found that EEOC’s determination that the agency did not meet its burden in substantiating its undue hardship argument was reasonable, the Board failed to clearly explain why it was unreasonable for the EEOC to decide the case through the lens of undue hardship instead of an essential functions analysis, and remanded the case to an MSPB administrative judge for a hearing on compensatory damages.Additionally, the Special Panel ordered the agency to take appropriate action, including cancellation of Alvara’s removal and payment of all benefits to which such he is entitled.MSPB Vice Chair Wagner issued a dissenting opinion strongly opposing the majority decision.

* 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 http://www.passmanandkaplan.com.

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