Removal of CBP Officer Unable to Work Graveyard Shift and Overtime was Proper

A Customs and Border Patrol Officer (CBPO) who was unable to work the graveyard shift or substantial overtime could not prove disability discrimination, and the agency's removal action was proper, the U.S. Merit Systems Protection Board (MSPB) ruled earlier this month.

In this case, the CBPO suffered from sleep apnea, a permanent condition that requires him to get 8 hours of nocturnal sleep, thereby preventing him from working the graveyard shift or performing substantial amounts of overtime, both features of his position. Although the agency accommodated the CBPO for a time by not requiring that he work the graveyard shift or substantial amounts of overtime, this accommodation ended when a new Port Director was appointed. Soon after her appointment, the Port Director began examining the workload assignment situation, focusing on the number of CBPOs who, for a variety of reasons, were on light duty.

The new Port Director determined that the CBPO could not perform the full range of his duties, and found that not requiring him to work the graveyard shift and substantial overtime on a permanent basis was not a reasonable accommodation. The Port Director directed that the agency undertake a search for other suitable positions within the CBPO's commuting area that he could perform, but none were found. She offered to extend the search outside the CBPO's commuting area, but he declined. She then removed him from his job for physical inability to perform.

On appeal to the MSPB, the administrative judge (AJ) found that the agency showed that the CBPO is physically unable to meet the conditions of his employment due to his medical condition. Addressing the CBPO's claim of disability discrimination, the AJ found that he is disabled, but that he did not establish that he is a qualified individual with a disability because he did not show that he can perform the essential functions of his position with or without accommodation. In his petition for review, the CBPO argued that the AJ erred in finding that the ability to work the graveyard shift and substantial overtime is an essential function of his position.

Ultimately, in a decision released earlier this month, the MSPB upheld the agency's removal action, finding that the CBPO failed to prove his claim of disability discrimination. In its decision, the MSPB explained that "a qualified individual with a disability" is "a person with the skills, experience, education, and other job-related requirements of the position he holds and who, with or without reasonable accommodation, can perform the essential functions of the position." The MSPB stated that evidence of whether a particular function is "essential" includes, but is not limited to: (1) the employer's judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; (5) the terms of a collective bargaining agreement; (6) the work experience of past incumbents in the job; and/or (7) the current work experience of incumbents in similar jobs.

In finding that working the graveyard shift and substantial overtime was an "essential function" of the CBPO's position, the MSPB determined that the AJ considered these seven factors, including testimony from several witnesses that CBPOs are assigned to work overtime to meet the needs of the agency on any shift, including the graveyard shift; that overtime is necessary in order for the agency to fulfill its mission; that no CBPO has ever been permanently exempted from working overtime or the graveyard shift; that morale would be adversely affected if certain CBPOs were never required to work overtime; that 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; and that the CBPO's requested accommodation would circumvent the collective bargaining agreement because it imposes limits on how much overtime each employee can be ordered to work.

The MSPB went on to say that the AJ properly relied upon the EEOC's decision in Bouffard v. Department of Homeland Security, Appeal No. 0120065257 (E.E.O.C. Jan. 16, 2008), which held that: (1) the ability to work rotational shifts and overtime is an essential function of the CBPO position; and (2) the accommodation of not having to work rotational shifts and overtime is, in essence, a request to change the essential function of the job, something the agency is not required to do.

Lastly, the MSPB noted that it generally defers to the EEOC on issues of substantive discrimination law, unless the EEOC's decision rests on civil service law for its support or is so unreasonable that it amounts to a violation of civil service law. However, in this case, neither of those exceptions applies.

Accordingly, the MSPB ruled that the CBPO could not prove disability discrimination and that his removal was proper.

The case is Alvara v. Department of Homeland Security, 2011 MSPB 75, August 17, 2011.

Posted in Case Law Update

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