In Boots v. U.S. Postal Service, MSPB Docket No. AT-0752-03-0286-E-1 (2005), the Special Panel of Appeals resolved a “mixed case” appeal to the Merit Systems Protection Board (MSPB) and adopted the EEOC’s finding that the U.S. Postal Service discriminated against a commercial. truck driver in violation of the Rehabilitation Act.
“Mixed case” appeals to the MSPB occur when an employee alleges that the basis for an agency’s adverse action was due to prohibited discrimination. The jurisdiction for a “mixed case” begins at the MSPB, but the employee may appeal the MSPB administrative judge (“AJ”) decision to the EEOC Office of Federal Operations (“OFO”) if the employee asserts that the MSPB AJ incorrectly interpreted federal civil rights laws. If the EEOC disagrees with the MSPB AJ and finds that the agency violated an employee’s civil rights, the MSPB reviews the EEOC decision to determine whether the EEOC decision conflicts with federal civil service laws. If the MSPB believes that the EEOC decision conflicts with federal civil service laws, the case is then referred to a Special Panel to resolve the matter. The Special Panel is a three member committee comprised of a presidential appointee, a commissioner of the EEOC, and a member of the MSPB.
In Boots, the employee worked as a tractor-trailer operator for the Postal Service since 1998. When he began his employment with the USPS, Boots disclosed that he experienced a seizure episode in 1984 and was taking anti-seizure medication. Boots held a valid commercial driver’s license and had an accident-free driving record before and during his tenure with the USPS. Nonetheless, the USPS removed Boots from his position in December 2002. During a periodic medical evaluation, a USPS contract physician concluded that Boots was not qualified for the position because he was taking anti-seizure medication, a violation of Department of Transportation regulations that were voluntarily adopted by the USPS.
Boots appealed his removal to the MSPB, claiming disability discrimination. The MSPB AJ upheld Boots’ removal, finding that Boots was not considered a “qualified individual with a disability” because he did not satisfy DoT regulations for operating a commercial vehicle. Boots then appealed to the EEOC to review the MSPB AJ decision. The EEOC disagreed with the MSPB decision and concluded that the USPS discriminated against Boots on the basis of his disability because the USPS failed to engage in an “individualized assessment” of his medical condition. The EEOC found that for 15 years prior to his removal, Boots operated tractor-trailers without incident. The EEOC decided that USPS failed to consider his work history, the expert opinion of medical doctors, and the opinion of his personal physicians. The USPS did not seek any information concerning his medical condition, rather it solely relied upon DoT regulations in removing him.
Even though the DoT regulations prohibited people who took anti-seizure medication from operating a tractor-trailer, the USPS adopted the DoT regulations voluntarily. In fact the USPS was specifically exempt from the DoT regulations. The EEOC concluded that the USPS could not hide behind non-mandatory regulations to justify Boots’s removal. Because the EEOC decision differed from the MSPB decision the case was certified to the Special Panel to resolve the conflict. The Special Panel resolved the controversy in favor of Boots and declared that the USPS’s voluntary adoption of the DoT regulations did not implicate federal civil service law because Congress excluded the USPS from the regulations. The Special Panel concluded that the EEOC’s decision correctly based its decision upon the Rehabilitation Act.
The Boots case shows that an agency violates the Rehabilitation Act if it imposes adverse actions on the basis of stereotype, irrational fears, and patronizing attitudes. In addition to providing insight on the Rehabilitation Act, the case illustrates the procedural maze that employees encounter in “mixed cases.” For “mixed case” appeals, an attorney or union representative can provide guidance throughout this complex process.
* 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.
The attorneys at Passman & Kaplan, P.C, are also the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to https://www.fedweek.com/pub/index.php
