UNITED STATES OF AMERICA

 MERIT SYSTEMS PROTECTION BOARD

 WASHINGTON REGIONAL OFFICE

 REYNALDO ALVARA v. DEPARTMENT OF HOMELAND SECURITY

 MSPB No. DA-0752-10-0223-E-1

 EEOC Petition No. 0320110053

 Washington, D.C.

 Monday, September 8, 2014
 2

 1 PARTICIPANTS:

 2 For MSPB:

 3 DENNIS P. WALSH, Chairman

 Special Panel

 4

 CHAI R. FELDBLUM, Commissioner

 5 Equal Employment Opportunity Commission

 6 ANNE M. WAGNER, Vice Chairman

 Merit Systems Protection Board

 7

 8 For Appellant:

 9 GARY M. GILBERT, ESQUIRE

 JULIE ROOK, ESQUIRE

 10 ERNEST HADLEY, ESQUIRE

 Gary M. Gilbert & Associates, P.C.

 11 1100 Wayne Avenue, Suite 900

 Silver Spring, Maryland 20910

 12 (301) 608-0880

 13 For Agency:

 14

 PETER P. ACURI, ESQUIRE

 15 LAMONT D. NAHRGANG, ESQUIRE

 Department of Homeland Security

 16 U.S. Customs and Border Protections

 Office of Assistant Chief Counsel

 17 9434 Viscount Boulevard, Suite 200

 El Paso, Texas 79925

 18 (915) 599-0149

 19

 20

 21

 22 * * * * *

 23

 24

 25
 3

 1 P R O C E E D I N G S

 2 (2:02 p.m.)

 3 MR. WALSH: Thank you, Bill. I would

 4 also like to add my thanks and the thanks of the

 5 Special Panel to the NLRB for their hospitality

 6 today and to Gary Shinners and staff for all their

 7 help in arranging this today.

 8 We are on the record. The Special Panel

 9 will now hear oral argument in the case, Reynaldo

 10 Alvara v. Department of Homeland Security, docket

 11 number DA0752100223E1 and EEOC petition number

 12 0320110053.

 13 This hearing is conducted pursuant to 5

 14 USC Section 7702(d) and 5 CFR 1201.171. I'm happy

 15 to welcome here to the NLRB the full Special

 16 Panel: MSBB Vice Chairman Anne Wagner and EEOC

 17 Commissioner Chai Feldblum. I am Dennis P. Walsh

 18 presiding as Chairman of the Special Panel.

 19 Welcome, everyone.

 20 The parties are present and represented

 21 by counsel. The Special Panel will first hear

 22 from counsel for Appellant Alvara. You are

 23 allotted 20 minutes with 10 minutes for rebuttal.

 24 So, Mr. Gilbert or Mr. Hadley?

 25 MR. GILBERT: May it please the Court.
 4

 1 My name is Gary Gilbert, and I'm here today on

 2 behalf of the petitioner, plaintiff, Appellant,

 3 Mr. Alvara. I'm going to take just a moment to

 4 introduce myself and my very dear colleague, Ernie

 5 Hadley, after which we are going to divide our 20

 6 minutes as we prearranged with the panel.

 7 Mr. Hadley is first going to address the

 8 first question of the extent to which this matter

 9 addresses a matter of interpretation civil service

 10 law, and then I'm going to address the remaining

 11 issues having to do with whether or not there was

 12 a reasonable basis for the decision by the EEOC.

 13 MR. WALSH: Okay.

 14 MR. GILBERT: I will say it's indeed a

 15 real pleasure for me to be here today. I am

 16 ticking off two of my major career goals: One is

 17 I always wanted to appear before the National

 18 Labor Relations Board.

 19 MR. WALSH: Yeah?

 20 MR. GILBERT: I think I can tick that

 21 one off. Mr. Hadley and I have spoken extensively

 22 for some 30 years in which we have talked about

 23 the unusual provision in the law for appearances

 24 before a Special Panel. We've always said that

 25 our careers would not be complete without
 5

 1 appearing before one, and I guess we have the

 2 ability to tick that one off our list of things to

 3 do; off our professional bucket list, so to speak.

 4 Again, my name is Gary Gilbert, and I am

 5 in private practice. I manage a law firm. I am

 6 the principal of a law firm of somewhere in the

 7 neighborhood of 22, 23 lawyers. We are, I

 8 believe, the largest law firm in the country that

 9 practice primarily focused on federal sector law.

 10 We've had many hundreds of cases before both the

 11 EEOC -- perhaps thousands -- and before the Merit

 12 Systems Projection Board.

 13 I had the great pleasure of being a

 14 member of the Commission staff from 1986 until

 15 2002. I was the administrative judge, mostly as a

 16 chief administrative judge, for the EEOC in the

 17 Baltimore District Office. I've had the pleasure

 18 when the ADA was passed in 1990 of being one of

 19 three individuals responsible for providing the

 20 training to EEOC lawyers and investigators with

 21 regard to the then-new Americans with Disabilities

 22 Act, and I've written several textbooks on the

 23 subject.

 24 Mr. Hadley, again a dear friend and

 25 colleague, is well-known for a variety of
 6

 1 different issues aside from his work in this field

 2 for some 35 years now. Mr. Hadley has written

 3 extensively, spoken extensively on the subject of

 4 employment discrimination law and other aspects of

 5 federal employment law. He is, perhaps, best

 6 known for a textbook he has authored, which I

 7 think most of us consider to be the bible for

 8 practice before the Equal Employment Opportunity

 9 Commission. With that, Ernie?

 10 MR. HADLEY: Thank you, Gary, and may it

 11 indeed please the Special Council. As Gary said,

 12 my name is Ernest Hadley. I have the privilege,

 13 along with Julie Rook and Gary Gilbert, of

 14 representing Mr. Alvara today.

 15 The critical and, indeed, the outcome

 16 determinative issue in this case is whether

 17 working a graveyard shift and substantial overtime

 18 are essential functions of being a Customs and

 19 Border Protection officer. The only reason that

 20 issue is critical and outcome determinative is

 21 because it is necessary to decide that in order to

 22 determine whether Mr. Alvara is a qualified

 23 individual with a disability entitled to

 24 reasonable accommodation under the Rehabilitation

 25 Act.
 7

 1 That is purely an issue of

 2 discrimination law, and no amount of window

 3 dressing by the MSPB changes that. In fact, I

 4 would like to draw the Special Panel's attention

 5 to the first decision in the Alvara case by the

 6 Board at 2011 MSPB 75, Paragraph 8, and I'll omit

 7 the citations.

 8 Before the EEOC directly addressed the

 9 dispositive issue presented in this case, we note

 10 the Board generally defers to the EEOC on issues

 11 of substantive discrimination law unless the

 12 EEOC's decision rests on civil service law for its

 13 support or is so unreasonable it amounts to a

 14 violation of civil service law. Accordingly,

 15 because the Bouffard decision involves an issue of

 16 substantive discrimination law, it is neither

 17 based on civil service law or is so unreasonable

 18 as to amount to a violation of civil service law,

 19 we will defer to the EEOC's determination.

 20 The only thing that changed between the

 21 Board's first decision in this case and the

 22 Board's second decision in this case is the

 23 outcome. The outcome is not determinative of

 24 whether or not this is a matter of civil service

 25 law or discrimination law.
 8

 1 MS. WAGNER: Mr. Chairman, may I ask a

 2 question at this point?

 3 MR. WALSH: Go ahead.

 4 MR. HADLEY: Yeah?

 5 MS. WAGNER: Mr. Hadley, but the fact is

 6 is that the question of whether rotational shifts

 7 and overtime was dispositive in terms of the

 8 initial determination as to whether your client

 9 was being reasonably accommodated. The fact is is

 10 that once the EEOC issued its decision -- that

 11 we're looking at and reviewing here -- and made

 12 the categorical determination that time and

 13 attendance were never going to be considered to be

 14 essential functions of a position, that it clearly

 15 implicated, if not explicitly, but clearly

 16 implicitly implicated fundamental principles of

 17 civil service law that are found throughout Title

 18 5 that essentially give agencies the primary

 19 authority in the first instance to determine the

 20 terms and conditions of employment that it deems

 21 necessary to reach and fulfill the critical

 22 mission of the agency. So, I think that's what's

 23 at issue here, and that clearly implicates civil

 24 service law.

 25 MR. HADLEY: The only reason we're
 9

 1 talking about essential functions is that's a term

 2 of the Rehabilitation Act, not civil service law.

 3 And to the extent that the Board, in its second

 4 decision, also again -- Paragraph 9 reemphasizes

 5 the fact that this issue is relevant to whether

 6 somebody's a qualified individual with a

 7 disability under the Rehabilitation Act, not under

 8 civil service law.

 9 MS. WAGNER: Yes, of course it is. But

 10 the question here is the categorical nature of the

 11 EEOC's determination at this point. They have

 12 categorically excluded time and attendance from

 13 ever being considered essential functions in a job

 14 position. So at that point, this isn't a

 15 case-by-case analysis. This is a categorical

 16 blanket determination that time and attendance can

 17 never be deemed essential functions because

 18 indeed, according to the EEOC, they're not

 19 functions at all.

 20 MR. HADLEY: That, Vice Chairman Wagner,

 21 doesn't appear the Board's decision has any

 22 rationale for its decision. What it says here in

 23 the first instance is that the EEOC's

 24 determination is an incorrect interpretation of

 25 civil service law.
 10

 1 What does the Board do to support that?

 2 It says, "The special nature of these jobs is why

 3 law enforcement officers are treated differently

 4 from other civil servants from everything from

 5 essential functions to retirement calculations,"

 6 Paragraph 13. The Board cites three statutes: 5

 7 USC 8331.2, which actually I think they mean 20; 2

 8 relates to members of Congress; 20 is law

 9 enforcement officers. 8401.17: Those have to do

 10 with defining law enforcement officers for

 11 purposes of retirement annuities, not for purposes

 12 of discrimination law. Nothing in those --

 13 MR. WALSH: But, Mr. Hadley, can I just

 14 interrupt you here? Isn't it relevant that this

 15 is a law enforcement position? Let's assume the

 16 truth of Vice Chair Wagner's point here, that

 17 attendance itself is not an essential function;

 18 that's what the EEOC was holding. Isn't

 19 attendance, in general, different from a

 20 requirement that a law enforcement officer has to

 21 work the overnight shift occasionally or else

 22 they're not going to be able to cover the

 23 functions of the job? I mean, it's law

 24 enforcement. They have to be able to rely on

 25 their people to be their overnight. Why isn't
 11

 1 that essential?

 2 MR. HADLEY: Chairman Walsh, I'm looking

 3 and looking in vain for a part of Title 5, a civil

 4 service law, rule, or regulation that actually

 5 says that that's a requirement of being a law

 6 enforcement officer. The statutes that I'm

 7 looking at list a range of duties -- job duties,

 8 not essential functions -- no mention of a

 9 graveyard or rotating shift, no mention of

 10 overtime. There are delineation of types of

 11 duties, functions, outcomes --

 12 MR. WALSH: Okay. Maybe my point goes

 13 more to the reasonableness here, but there

 14 certainly are provisions in the medical standards

 15 and the position description of this law

 16 enforcement that say that they must be ready to

 17 rotate into overnight shifts.

 18 MR. HADLEY: There is a difference of

 19 distinction, Chairman Walsh, between a

 20 qualification standard and an essential function

 21 of the job. In fact, one of the cases the Board

 22 cites in support of it, which is an EEOC case, has

 23 to do with qualification standards, which is

 24 actually a different part of the Rehabilitation

 25 Act than the essential functions part, which is a
 12

 1 requirement of reasonable accommodation. And --

 2 MR. WALSH: But it's in the job

 3 description too. The job description is not a

 4 qualification.

 5 MR. HADLEY: Right.

 6 MR. WALSH: A job description describes

 7 the job, and the DHS has said part of your job is

 8 you must be willing and ready to rotate.

 9 MR. HADLEY: A position description is

 10 simply one factor that goes into the determination

 11 of an essential function. That's been

 12 longstanding by Commission regulation, by policy

 13 guidance, by case precedent. There are other

 14 factors as well that go into the determination of

 15 an essential function.

 16 MS. FELDBLUM: So, Mr. Hadley, let me

 17 just follow up in terms of this issue of the

 18 categorical nature of the EEOC decision.

 19 MR. HADLEY: Okay.

 20 MS. FELDBLUM: So, in Alvara the EEOC

 21 held that the ability to work a graveyard shift

 22 was not, as a legal matter under the

 23 Rehabilitation Act, a function of the job

 24 essential or otherwise, and instead held that the

 25 job requirement, as Chairman Walsh just noted,
 13

 1 that CPBOs be available for graveyard shifts could

 2 be modified with respect to Mr. Alvara without

 3 imposing under hardship.

 4 So, my question to you is does the

 5 EEOC's holding in Alvara mean that the agency

 6 could never require workers to be available for

 7 significant overtime or would always be required

 8 to grant a request from an employee with a

 9 disability who wanted a permanent exemption from

 10 the graveyard shift? I mean, wouldn't the agency

 11 have the right to prove under hardship in these

 12 different scenarios?

 13 MR. HADLEY: You're absolutely correct,

 14 Commissioner Feldblum. The determination of

 15 reasonable accommodation and undue hardship, which

 16 are different from the essential function, is done

 17 by an individualized analysis on a case-by-case

 18 basis. It would take into account such things:

 19 Is the number of agents available to perform that

 20 function?

 21 We have seen, in fact, in one case that

 22 I believe the agency cited, the Cyr case, we had a

 23 very, very small outpost of immigration

 24 inspectors, and the Commission determined because

 25 of the small number -- not that it wasn't an
 14

 1 essential function -- it would be an undue

 2 hardship to accommodate that.

 3 It is always an individualized

 4 determination. I don't think the Commission says

 5 here in its decision, unlike what the Board says,

 6 is categorically it's always an essential

 7 function. The Commission says this is an

 8 individualized determination.

 9 MS. WAGNER: But isn't it the case that

 10 the fact that these factors can be considered an

 11 undue hardship, but not in terms of as essential

 12 functions, that's completing those two inquiries

 13 completely, and they're two separate elements of

 14 the statute.

 15 MR. HADLEY: That's correct, and the

 16 Commission has given more than a reasonable basis

 17 for that decision. If you factor attendance

 18 requirements into the qualification determination,

 19 you eliminate a disproportionate number of

 20 individuals with disabilities who will never even

 21 get considered for accommodation or whether it

 22 would be an undue hardship to accommodate because

 23 --

 24 MR. WALSH: Let's address that point,

 25 and maybe again this gets beyond your portion of
 15

 1 the argument, but on the undue hardship point why

 2 was that an unreasonable determination? Why isn't

 3 it arguably unreasonable? It's going to require

 4 other people to fill in here, right?

 5 This graveyard shift has to be covered.

 6 This is not like other jobs. This is a job where

 7 this time period has to be covered by qualified

 8 people. It's going to require other people to do

 9 it. Why wouldn't that be a burden? It's

 10 certainly going to be a burden to other officers,

 11 maybe many other officers.

 12 MR. HADLEY: May I yield to Mr. Gilbert

 13 on that question?

 14 MR. WALSH: Sure.

 15 MR. HADLEY: Thank you.

 16 MR. GILBERT: There's no question that,

 17 at some level, it might be on an individualized

 18 assessment and undue hardship for an employer to

 19 accommodate the needs for reasonable accommodation

 20 of an employee, and that's no different for a law

 21 enforcement officer. In some instances, law

 22 enforcement agencies may have an easier burden to

 23 show that, in fact, there is an undue hardship to

 24 provide an accommodation.

 25 But you have to understand this is a
 16

 1 factual inquiry. If this Panel were to set aside

 2 the Commission's decision, which I think is a very

 3 well-reasoned decision (inaudible), what the Panel

 4 would be doing under those circumstances is

 5 setting aside 40 years of guidance the Commission

 6 has given about essential functions under the

 7 Rehabilitation Act and some 20 years under the

 8 (inaudible) and in particular this case.

 9 MR. WALSH: You say "well-reasoned."

 10 What was the reasoning on the undue hardship claim

 11 that the EEOC --

 12 MR. GILBERT: The Commission's decision

 13 here rested upon the fact that other employees --

 14 and I'm skipping over the essential function

 15 argument -- the reason it's not an undue hardship

 16 in this instance is because of the fact that this

 17 is an agency that shows to excuse people routinely

 18 from working the graveyard shift (inaudible).

 19 MR. WALSH: But that's on a temporary

 20 basis, sir.

 21 MR. GILBERT: No, that's not --

 22 MR. WALSH: The case law is quite clear

 23 that we don't have to consider temporary;

 24 temporary's not the same as permanent.

 25 MR. GILBERT: The question is what were
 17

 1 the employees of the agency required to do, and

 2 testimony in the record established that there

 3 were some individuals who had never worked a

 4 graveyard shift at night; never.

 5 MR. WALSH: Are you referring to

 6 pregnancy and breast feeding?

 7 MR. GILBERT: There were three classes

 8 of individuals who were excused from working the

 9 graveyard shift. The first of those is the class

 10 that you just suggested; those are individuals who

 11 had a temporary medical condition.

 12 MR. WALSH: Right, that's temporary.

 13 MR. GILBERT: They were excused. It was

 14 temporary. The second class is individuals who

 15 were allowed to swap shifts. We believe there

 16 were an unidentified number because the agency

 17 made no effort to identify how many of their

 18 employees actually had never worked the graveyard

 19 shift. In fact, but for the fact that there was

 20 what, we think, may have been an unlawful inquiry

 21 into individuals with disabilities to clean out

 22 those individuals who were not working the full

 23 range of duties or otherwise being provided

 24 reasonable accommodation, other than the agency's

 25 decision to scrutinize those employees, our client
 18

 1 would have remained so-called "under the radar"

 2 forever swapping their shift --

 3 MR. WALSH: Are you saying that was an

 4 inappropriate inquiry to look into the fact that

 5 there were a lot of people on light duty and, in

 6 the agency's views, not enough coverage of their

 7 overnight shift?

 8 MR. GILBERT: That is not an issue

 9 before the Panel. That was not an issue before

 10 the Board. But, yes, frankly, I do believe that

 11 you cannot choose to scrutinize individuals with

 12 disabilities for improper purposes. We don't need

 13 to get there. That was not an issue before --

 14 MR. WALSH: Yeah, I'm just not so sure

 15 it's improper to determine whether you have

 16 sufficient coverage of your shifts.

 17 MR. GILBERT: That was not the purpose

 18 of the inquiry. At no time was the purpose of the

 19 inquiry to determine whether there was sufficient

 20 coverage for the shifts. In fact, the record has

 21 nothing to suggest that there was, at any time, a

 22 lack of appropriate coverage. On the contrary --

 23 MS. FELDBLUM: Mr. Gilbert, wasn't the

 24 fact that --

 25 MR. WALSH: I've distracted you, sorry.
 19

 1 MS. FELDBLUM: Wasn't the fact that

 2 there were almost 700 officers at that site a key

 3 issue in whether the EEOC's decision -- it wasn't

 4 undue hardship -- a reasonable interpretation of

 5 discrimination law?

 6 MR. GILBERT: That's absolutely correct.

 7 The Commission has some extensive guidance that

 8 has been adopted by every federal court. In fact,

 9 the Silk case, the case that the MSPB cited in its

 10 very decision, Silk involved a police officer in

 11 the City of Chicago who was unable, because -- a

 12 remarkable similarity in facts -- a police officer

 13 developed sleep apnea. After some period of time

 14 required reasonable accommodation. After several

 15 other forms of accommodation, ultimately requested

 16 and was granted an accommodation to be excused

 17 from the third shift, the graveyard shift.

 18 MS. WAGNER: Mr. Gilbert, can we please

 19 get back to -- the fact here is we're not really

 20 talking about undue hardship. We're talking about

 21 the much more foundational, fundamental element of

 22 this cause of action which is essential functions.

 23 It seems to me that the EEOC's

 24 regulations which say that an agency can consider

 25 that there are a limited number of employees to
 20

 1 perform a function and identifying that as an

 2 essential function doesn't necessarily made the

 3 converse true: That because there are a lot of

 4 people who can perform the function that the

 5 function therefore becomes nonessential, and that

 6 an agency shouldn't be able to require every

 7 person in that position to be able to perform that

 8 function.

 9 MR. GILBERT: To the best of my

 10 knowledge, there's not a federal court that has

 11 reviewed this position that has disagreed with the

 12 Commission policy on this matter.

 13 More importantly, this is not a question

 14 of whether the Commission interpreted the law

 15 correctly or not. The only question here before

 16 the panel is whether or not there was a reasonable

 17 basis for the Commission's decision. There is a

 18 reasonable basis, and every federal court that has

 19 addressed --

 20 MS. WAGNER: The Commission's decision

 21 ignored the employer's evidence that this was an

 22 essential function of this position. The EEOC's

 23 position ignored the position description, and

 24 these are pieces of evidence that the regulations

 25 themselves say the EEOC should consider.
 21

 1 MR. GILBERT: With all due respect, Vice

 2 Chair, I believe you're reading a different

 3 decision than I am. I believe the Commission's

 4 decision, again, well-reasoned, and all it does it

 5 validates, it regurgitates law that is well-

 6 established not just from the Commission but from

 7 federal courts as well. It explicitly addressed

 8 the question of whether or not this is an

 9 essential function, and it does address the

 10 question of other individuals, the Commission's

 11 guidance.

 12 MR. WALSH: Can you just go back a

 13 second and answer the question about the time and

 14 attendance being an across-the-board -- taking

 15 that off the table for essential functions? Why

 16 isn't that a problem? Isn't that unreasonable?

 17 Why isn't that a problem?

 18 MR. GILBERT: It is not unreasonable,

 19 but again, that is not the standard here. But

 20 nonetheless, if that were the standard -- I can

 21 read you the language from the Commission's

 22 decision in this matter. "There is a strong

 23 temptation among agencies to frame attendance or

 24 other measures of the time in which functions must

 25 be performed as essential functions. This
 22

 1 represents a flawed understanding of the

 2 requirements and structure of the Rehabilitation

 3 Act." The Commission goes on from there to

 4 explain why that is. But the fact is --

 5 MR. WALSH: But they say that attendance

 6 is not a duty, and so we're not going to look at

 7 it as a function.

 8 MR. GILBERT: That's correct.

 9 MR. WALSH: Isn't that an

 10 across-the-board; taking it off the table forever?

 11 MR. GILBERT: They are not going to look

 12 at it as an essential function in and of itself.

 13 It goes on to say that performing certain job

 14 functions sometimes requires a person's presence

 15 at the work site. But the fact that attendance

 16 can be a condition precedent to performing a

 17 function does not render it a job function in and

 18 of itself. I believe that is well-accepted law at

 19 this point in time.

 20 MR. WALSH: I'm afraid you're out of

 21 time.

 22 MR. GILBERT: Okay.

 23 MR. WALSH: Thank you very much.

 24 SPEAKER: Thank you.

 25 MR. WALSH: Who do we have? Mr. Acuri
 23

 1 first or --

 2 MR. ACURI: Yes, sir.

 3 MR. WALSH: Okay, it's all yours.

 4 MR. ACURI: May it please this special

 5 panel. Good afternoon.

 6 MR. WALSH: Good afternoon.

 7 MR. ACURI: Thank you. My name is Peter

 8 Acuri. I'm with Lamont Nahrgang. We represent

 9 the United States Customs and Border Protections

 10 Office of Assistant Chief Counsel in El Paso,

 11 Texas. We're here to talk to you about CBPOs as

 12 the law enforcement officers, front line uniformed

 13 border security badge wearing, gun toting law

 14 enforcement officers. They detect and prevent

 15 terrorists from entering the United States. They

 16 enforce customs and immigration and agriculture

 17 laws.

 18 MR. WALSH: Mr. Acuri?

 19 MR. ACURI: Yes, sir.

 20 MR. WALSH: I'm sorry to interrupt you

 21 so early, but I think that the Appellant may have

 22 raised a valid point here in terms of what we have

 23 the jurisdiction to do here. I believe all we --

 24 really the first question we have to answer is was

 25 there a specific civil service law, rule,
 24

 1 regulation, or policy directive that was

 2 incorrectly interpreted by the EEOC, something

 3 specific. Now I had a hard time finding that in

 4 the MSPB decision certifying to us. Maybe you

 5 could help me find it.

 6 MR. ACURI: The right to assign work.

 7 MR. WALSH: Where --

 8 MR. ACURI: Title 5.

 9 MR. WALSH: Where -- what's the law, the

 10 citation?

 11 MR. ACURI: It's Title 5.

 12 MR. WALSH: Title 5? There's -- that's

 13 a big title.

 14 MR. ACURI: Yes. Well, I think it's

 15 7106.

 16 MR. WALSH: Okay. Now so you're citing

 17 management rights under 7106 of the -- first of

 18 all I didn't see that cite in the MSPB decision as

 19 the specific rule. But secondly isn't an

 20 accommodation by its nature going to somewhat

 21 interfere with management's rights to assign work

 22 and all of management's right? I mean management

 23 rights under 7106 is a pretty broad concept. If

 24 accommodation is required it's going to somewhat

 25 cut into those rights isn't it, every time?
 25

 1 MR. ACURI: I think that you're going to

 2 see that -- I think the point generally speaking

 3 is fair, however I think in this situation it's

 4 dramatically different because of the nature and

 5 the function of the CBPO itself because --

 6 MR. WALSH: Where is that in 7106?

 7 MR. ACURI: Well, that's the overarching

 8 principle that we're saying is being violated

 9 here.

 10 MR. WALSH: All right. But our law

 11 doesn't say overarching principles, it says a

 12 specific civil service law, rule, regulation, or

 13 policy directive was incorrectly interpreted. I

 14 don't -- you haven't cited one yet.

 15 MR. ACURI: Well, I cited it in the

 16 brief and it cited as 5 U.S.C. 7106.

 17 MR. WALSH: Okay.

 18 MR. ACURI: And then the --

 19 MR. WALSH: I'm not convinced that's the

 20 one -- that that's a valid one because every

 21 accommodation is going to cut into management's

 22 rights.

 23 MS. WAGNER: Counsel if I might just

 24 jump in because it is the Board's decision that is

 25 in issue here.
 26

 1 MR. WALSH: That I am ripping apart.

 2 MS. WAGNER: And it is true that there

 3 weren't specific provisions cited because I think

 4 fundamentally it was -- there's almost an obvious

 5 assertion that -- and certainly implicit in the

 6 order that it is -- the agencies of -- the civil

 7 service law gives the agencies in the first

 8 instance the primary authority to identify what's

 9 essential functions in a position. And I think

 10 the provisions cited in the order were to

 11 substantiate the agency's claims that rotational

 12 shifts and overtime were essential, were not

 13 bogus. That, you know, these are law enforcement

 14 officers and there's a whole separate pay system

 15 and a whole separate retirement system designed to

 16 accommodate the fact that they're rotational

 17 shifts and overtime and what not. But the fact

 18 remains is that -- and I won't take everybody's

 19 time up here, but we could go through, you know,

 20 Chapter 51 of Title 5, Chapter 61 dealing with

 21 time and attendance, 51 dealing with

 22 classification, 43 dealing with performance

 23 management, some it be -- one dealing with labor

 24 relations that all essentially establish the

 25 agency's right in the first instance. I'm not
 27

 1 saying it's not reviewable but it's the agency's

 2 right and authority and duty in the first instance

 3 to establish the terms and conditions of

 4 employment subject to review certainly, but not

 5 preempted entirely by another Federal agency.

 6 MR. ACURI: Okay.

 7 MR. WALSH: Okay. And I guess -- yeah,

 8 but I guess part of my point though, and maybe you

 9 can answer this for me too, is that aren't we as a

 10 special panel, aren't we -- isn't our job here to

 11 review a written decision by the MSPB and if

 12 something's not in there how can we review it? I

 13 mean I -- as persuasive as Ms. Wagner's argument

 14 might be I didn't see it in the decision. How can

 15 we review that if it's not there?

 16 MR. ACURI: Well, consider it an

 17 omission or -- for lack of a better work.

 18 MR. WALSH: I would definitely consider

 19 it that.

 20 MR. ACURI: I will take the

 21 representation at face value in that respect but

 22 that does not negate the existence of the law

 23 itself. It's just like -- it's the same as not

 24 waiving an affirmative defense or waiving an

 25 affirmative defense. It's still out there in the
 28

 1 governing law and it does speak to not only the

 2 fundamentals and what the agency needs which is to

 3 be able to expect its employees to do certain

 4 things, but it also speaks to the nature of how

 5 unreasonable the consequences here are.

 6 MS. FELDBLUM: So actually assuming that

 7 that statute despite maybe not being explicitly

 8 stated in the opinion is relevant in terms of a

 9 violation, I'm curious whether you think that that

 10 statue, 7106(a)(2)(b), that says you can make

 11 management decisions, it is your decision that

 12 this statutory provision negates the statutory

 13 anti discrimination provision in the

 14 Rehabilitation Act?

 15 MR. ACURI: No, I don't think negates

 16 the EEOC's authority but I think that they need to

 17 align themselves properly and if they don't --

 18 MR. WALSH: Well, that's why were' here.

 19 To figure out why.

 20 MS. FELDBLUM: So just in terms Chairman

 21 Walsh's comment, that accommodations will sort of

 22 inherently affect management it seems like your

 23 argument is more that the second part of the

 24 standard, that the EEOC's decision is so

 25 unreasonable in terms of how it applied those
 29

 1 Rehabilitation Act standards such that it violated

 2 this provision. Is that correct? It's not --

 3 it's the second part of the standard about how

 4 unreasonable the EEOC's decision is, not the first

 5 part of the standard that EEOC's decision relied

 6 on and misapplied a civil service law? Is that

 7 correct?

 8 MR. ACURI: Yes, Your Honor. In fact, I

 9 think that when you look at the broader spectrum

 10 of what we have going on here it is what's

 11 reasonable and unreasonable. And we --

 12 MR. WALSH: Okay. Again, though I want

 13 to come back to the same point I was making though

 14 is where is that in MSPB decision? The MSPB

 15 decision for the most part covered the first

 16 question, inadequately in my view, but it covered

 17 it.

 18 MR. ACURI: Well --

 19 MR. WALSH: And then at the end it said

 20 we also think by the way that the EEOC's decision

 21 was unsupported by the evidence in the record and

 22 was unreasonable. Where is the specific reasoning

 23 in that decision for why the EEOC's decision was

 24 unreasonable?

 25 MR. ACURI: Well, I think that when you
 30

 1 look at the latter portion of the MSPB's decision

 2 you do see some citations to case law such as Silk

 3 where you're looking at law enforcement officers

 4 specifically and what they have to do and why an

 5 interference with things like overtime and shift

 6 work will make it unreasonable. Because again you

 7 are talking about assigning work and you are

 8 talking about very clearly accounted for

 9 obligations for CBPOs in particular. However,

 10 this isn't a hypothetical here. What we're

 11 talking about is CBPOs that get ordered lots of

 12 overtime. They could get ordered at the end of a

 13 shift. They can get ordered it for as much as the

 14 same amount that they've already service. So you

 15 can see --

 16 MR. WALSH: Isn't there a limit on how

 17 much they can get ordered in the collective

 18 bargaining agreement?

 19 MR. ACURI: There are mechanisms in

 20 place in the collective bargaining agreement that

 21 do address how things like -- sorry -- overtime

 22 and shift work are contemplated. And there are

 23 also caps on the amount of overtime that CPBOs can

 24 work. And that's one of the reasons why overtime

 25 and shift work are essential because you need your
 31

 1 work force to be able to accomplish these tasks.

 2 MS. FELDBLUM: So can I ask you the same

 3 question I asked appellant's lawyers, so does the

 4 EEOC's holding in Alvara meant that the Agency,

 5 DHS, could never require workers to be available

 6 for significant overtime as you just described, or

 7 would it always be required to grant a request

 8 from an employee with a disability who wants a

 9 permanent exemption? Do you read the EEOC's

 10 Alvara decision as concluding that?

 11 MR. ACURI: I see the EEOC's decision as

 12 making comparisons between the temporary

 13 accommodations and the one permanent accommodation

 14 that we have before us, and I see that being a

 15 dividing line. In other words --

 16 MS. FELDBLUM: Okay, so is that a yes or

 17 a no to the question?

 18 MR. ACURI: Well, it's a very long

 19 question to be honest with you; I'm trying to

 20 break it down.

 21 MS. FELDBLUM: Okay. I'm sorry. Let me

 22 just say it again. Do you understand the EEOC's

 23 Alvara decision as meaning that your agency, your

 24 agency could never require workers in some

 25 location to engage in significant overtime? Let
 32

 1 me just ask you that one first. Do you read that

 2 decision as meaning that your agency could never

 3 require workers in some location to always have to

 4 be available for significant overtime?

 5 MR. ACURI: I think that there are

 6 locations where significant overtime is not

 7 necessarily the largest issue. So it's not

 8 necessarily a yes or no question. And that gets

 9 to what we're talking about --

 10 MS. FELDBLUM: Well, I guess it's a

 11 legal question. So let me ask it on the graveyard

 12 shift, do you read the EEOC's Alvara decision as

 13 meaning that your agency, DHS, can never require

 14 workers in a certain location to always be

 15 available for graveyard shifts, on a temporary

 16 basis, on a permanent basis? Do you read the

 17 decision as meaning that your agency can never

 18 require that of your workers?

 19 MR. ACURI: I see it as opening the door

 20 to that, yes. I see us being forced into a

 21 position where if we have a lot of people who have

 22 the same type of accommodation -- now we have a

 23 situation where we can't order anybody --

 24 MS. FELDBLUM: Okay, does that mean that

 25 you do not understand the undue hardship analysis
 33

 1 as being cumulative? In other words that it might

 2 be that you have to make a certain accommodation,

 3 no graveyard shifts for five employees because it

 4 won't be an undue hardship, but actually when the

 5 sixth and seventh employee asks for it, that -- do

 6 you read the undue hardship analysis as not

 7 allowing an employer to then prove undue hardship

 8 for the sixth, seventh, eight employee?

 9 MR. ACURI: Well, actually the way that

 10 I read the decision is that it converts it into an

 11 undue hardship analysis when that shouldn't be the

 12 case.

 13 MR. WALSH: Well, why not?

 14 MR. ACURI: Because (inaudible) the

 15 function. Why shouldn't attendance and shifts and

 16 when you do the work be an undue hardship issue?

 17 I mean isn't it a class undue hardship? Is it too

 18 much of a hardship for us to accommodate this

 19 person's time on the job?

 20 MR. WALSH: And you could show it is. I

 21 mean factually isn't -- there's no reason you

 22 couldn't show it if you have that situation. Why

 23 isn't it classically an undue hardship issue and

 24 not an essential function issue?

 25 MR. ACURI: Well, I do think actually in
 34

 1 this situation you can show that it is an undue

 2 hardship, okay, but I think that --

 3 MR. WALSH: But that's not the question.

 4 MR. ACURI: I know.

 5 MR. WALSH: The question is was is it

 6 unreasonable for them to say it was?

 7 MR. ACURI: Right. And I'm with you.

 8 In my mind, you don't reach that tier because what

 9 you're looking at is the functions of the CBPO and

 10 the necessities of having them available for shift

 11 work and overtime. And so I don't in my mind come

 12 down to the undue hardship analysis.

 13 MR. WALSH: Well, but that's my

 14 question, why not? I mean why -- what's wrong

 15 legally with making it an undue hardship question?

 16 It seems like a classic undue hardship question.

 17 MR. ACURI: Because the Agency and the

 18 law contemplates a lot of different criteria that

 19 consider what an essential function is. If

 20 regulations that go towards position descriptions,

 21 you've got the incumbus of the position, you've

 22 got national bargaining agreements. You have a

 23 bargaining unit and concerns over whether or not

 24 you have a disparity in the treatment as between

 25 them and you want to make sure that they are all
 35

 1 obliged to do the same work. And --

 2 MR. WALSH: Yeah, but -- okay. But the

 3 -- I think the case law is pretty clear that EEOC

 4 can't consider whether other employees are upset

 5 by an accommodation or not.

 6 MR. ACURI: I think that it's a minor

 7 factor. I would concede that if you --

 8 MR. WALSH: I think it's not supposed to

 9 be a factor at all. I would refer to Commissioner

 10 Feldblum on that, but I think that that's not

 11 supposed to be a -- just because someone else is

 12 upset that I have to pick up the slack for an

 13 accommodation, that's not supposed to be an undue

 14 hardship.

 15 MR. ACURI: Looking at morale on its own

 16 I would imagine that you're correct but I don't

 17 think that we're supposed to be looking at morale

 18 alone, and I don't think the regulations permit

 19 that either.

 20 MR. WALSH: Right.

 21 MR. ACURI: I think you start looking at

 22 a lot bigger picture.

 23 MS. WAGNER: And is it the case to the

 24 Chairman's question, I mean is -- who can -- how

 25 many people you have to perform the function and
 36

 1 whether they can, you know -- how frequently they

 2 can perform the functions, are those -- those are

 3 factors that go to determining whether the

 4 function itself is essential?

 5 MR. ACURI: No, I see that more as the

 6 undue hardship analysis in that second tier, and I

 7 see that analysis in that case to be flawed in a

 8 couple of key ways. What we have here is a vision

 9 of the CBPO work force at an El Paso port where

 10 700 CBPOs are just sitting around doing nothing

 11 which isn't the case at all. What you have is

 12 four bridges, you have multiple different shifts,

 13 you have different individual responsibilities

 14 that include primary and secondary lanes, you have

 15 cargo functions, foreign trade zones. And when

 16 you take that large number and you break it down

 17 to the individual locations and the individual

 18 responsibilities what you get is the shorter

 19 worker force and then the ability to absorb this

 20 one loss becomes very difficult.

 21 MR. WALSH: But there was some empirical

 22 evidence though in the record on how many people

 23 actually work the overnight shift. I think it was

 24 like seven percent of the work force. That's not

 25 a large percentage that have to do it.
 37

 1 MR. ACURI: Well, I don't think it's

 2 simply about who works it at any one given time.

 3 I think it's about having the rotation through

 4 because what you have is you have bargained for

 5 terms where the CBPOs and the Union have said

 6 shifts go to certain people at certain times.

 7 There's an order involved here and so perhaps --

 8 I'll take your representation at face value that

 9 there's seven percent, but that seven percent is

 10 going to change. I don't remember the terms; it

 11 could be biannually.

 12 MR. WALSH: Right.

 13 MR. ACURI: Or it could be whatever, but

 14 it's availability to move.

 15 MR. WALSH: Right.

 16 MR. ACURI: And there's seniority

 17 considerations and there's a lot of -- there's

 18 some desirable shifts out there in El Paso.

 19 Sitting in the hot sun looking in primary at cars

 20 coming in from Mexico can be hard.

 21 MR. WALSH: I think there's evidence in

 22 the record though that there -- some of the

 23 officers actually desired the overnight shift.

 24 MR. ACURI: I think that you're probably

 25 right on that. Some people do because --
 38

 1 MS. FELDBLUM: Maybe so that they don't

 2 have to sit in the sun.

 3 MR. ACURI: Right, right.

 4 MS. FELDBLUM: So but let me ask you one

 5 other question. In the Bouffard opinion, in the

 6 beginning of the Bouffard opinion which we then

 7 overturned in one respect, the decision issued by

 8 our Office of Federal Operations stated, "As a CBP

 9 officer complainant's duties included inspecting

 10 travelers, examining selective applicants for

 11 various immigrations privileges and benefits,

 12 seizing suspect property and detaining people

 13 engaged in suspicious activity. Special

 14 requirements for the position included caring a

 15 firearm, possessing a valid state driver's

 16 license, working shifts on a rotating basis,

 17 performing substantial amounts of overtime, and

 18 undergoing a security clearance investigation."

 19 Would you agree with those two sentences?

 20 MR. ACURI: I'm going to take your word

 21 for it if that's what's in the decision.

 22 MS. FELDBLUM: No, no, no. That is

 23 what's in the decision. My question to you is

 24 would you agree that that's an accurate

 25 description of the duties of a CBP officer and the
 39

 1 special requirements for the position that CBP

 2 applies to that position?

 3 MR. ACURI: I think that maybe there's

 4 two different documents. I think that there's the

 5 position description itself and then there's the

 6 medical and physical requirements documents.

 7 MS. FELDBLUM: Okay.

 8 MR. ACURI: And perhaps -- I may be

 9 conflating the two, but I have duties in my mind

 10 as the position description and then in the

 11 special -- or I'm sorry, physical requirements I

 12 have the latter portion of what you're citing in

 13 my mind.

 14 MS. FELDBLUM: Okay. So, you know, the

 15 duties and the requirements. Do you see any legal

 16 differences for purposes of the Rehabilitation Act

 17 between the duties described in the first sentence

 18 and maybe perhaps put in the job description and

 19 the special requirements of the job that are

 20 described in the second sentence? For purposes of

 21 the Rehabilitation Act do you see any legal

 22 difference between those two?

 23 MR. ACURI: Yes, I do because I think

 24 that you don't simply focus on the descriptions

 25 themselves. And I think when you look to the regs
 40

 1 and you look to the law --

 2 MS. FELDBLUM: No, no. That's not the

 3 -- I'm not asking about the job description

 4 question, I'm saying as a legal matter under the

 5 Rehabilitation Act, does it matter that something

 6 is a duty of the job, something that has to be

 7 achieved in this job, you know, detaining people

 8 engaged in suspicious activity, and the

 9 requirements of the job? The requirements that

 10 you have to show you can meet in order to perform

 11 those essential functions, the requirement of

 12 being able to carry a firearm, work shifts on a

 13 rotating basis?

 14 MS. WAGNER: Commissioner, I think your

 15 question is getting at the part of the EEOC

 16 decision that differentiates between the "what" of

 17 a function and the "when" of a function. And

 18 essentially divorces those two in terms of

 19 determining what constitutes an essential

 20 function. Do you agree that it's permissible to

 21 -- or that it's permissible to divorce those two

 22 in categorical ways such as the EEOC has done

 23 here?

 24 MR. ACURI: No. And what I think that

 25 you should do is take a look at the position on a
 41

 1 case by case basis. That's exactly what I think

 2 and I think that that's what the law contemplates

 3 is taking a look at all of the testimony and

 4 evidence that's presented by the --

 5 MR. WALSH: I guess I go back to why

 6 can't you do that in the undue hardship party of

 7 the equation when it comes to when you're actually

 8 working the job?

 9 MR. ACURI: Well, I think that that was

 10 done in this case but I don't think that it was

 11 necessary in this case.

 12 MR. WALSH: Okay, your time is almost up

 13 but I did want to ask you a couple of more legal

 14 questions so I'll give you a little bit more time.

 15 Just legally, in its first decision the MSPB

 16 defers to the EEOC's interpretation of

 17 discrimination law in the Bouffard. Okay. They

 18 explicitly say we have to defer, but then in a

 19 second decision after the EEOC overturned

 20 Bouffard, okay, and then the MSPB certified it to

 21 us they seemed to no longer think they needed to

 22 defer. How can they -- I guess how can they have

 23 it both ways and how is that due deference? I

 24 mean out statute says we have to give due

 25 deference. Well, the MSPB seems to have given due
 42

 1 deference once and no deference the second time.

 2 How can they have it both ways?

 3 MR. ACURI: Well, you had a case right

 4 on point there that they were looking at from the

 5 EEOC. It was -- in 2010 when this hearing took

 6 place you had (inaudible) to take a look at -- it

 7 wasn't the only thing that the AJ did look at, but

 8 it was the law that was --

 9 MR. WALSH: It was pretty dispositive in

 10 the decision.

 11 MR. ACURI: It certainly was considered

 12 heavily, absolutely. And then what's happened is

 13 many years later after the fact finder had the

 14 ability to contemplate the testimony of the

 15 individual witnesses you have a reversal. And --

 16 MS. WAGNER: I'm sorry, can I jump in on

 17 this too?

 18 MR. WALSH: Which agencies do all the

 19 time.

 20 MS. WAGNER: Which is that -- if I can

 21 clarify perhaps the position of the Board in this.

 22 In the first instance the EEOC conducted a case by

 23 case analysis of whether the asserted functions

 24 that the Border Patrol was relying upon were

 25 essential and we would defer to that. But once
 43

 1 the EEOC issued a categorical exclusion of certain

 2 aspects of terms and conditions of employment and

 3 such fundamental ones as time and attendance from

 4 ever being considered to be essential, that was an

 5 encroachment on civil service law and that did not

 6 warrant deference by the Board to the EEOC's

 7 determination.

 8 MR. WALSH: I think she's answered your

 9 question for you.

 10 MS. WAGNER: I just wanted to help him.

 11 MR. ACURI: Thank you.

 12 MR. WALSH: So we can proceed to

 13 rebuttal. For the appellant.

 14 MR. HADLEY: Thank you. Very briefly,

 15 and then I'm going to turn this over to Mr.

 16 Gilbert. Chairman Walsh, I think you've hit on

 17 one of the principle points here, and it in fact

 18 is one that was referenced in page 4 of Peter

 19 Broida's amicus brief. Alvara and other litigants

 20 before the Board cannot be expected to guess at

 21 the Board's intent, quote, "defense with a

 22 phantom, raising arguments with himself, merely

 23 for the exercise of encountering those arguments,

 24 end quote, in Ray Terrella 1-MSPR-119, back from

 25 1979, that's what we've been forced to do in this
 44

 1 case, because there's never been an identification

 2 of a specific civil service law, rule or

 3 regulation that the EEOC incorrectly interpreted

 4 in its decision. As for 7106, that's the -- we're

 5 here -- this will be the fifth written decision in

 6 this case, and it's the first time that's been

 7 raised as an issue. I think that may be a

 8 question of due process, as to whether or not it

 9 can either be raised at this point. Second, the

 10 reason we defer to the commission or the board in

 11 these cases, is respective expertise -- 7106 falls

 12 within the jurisdiction of the Federal Labor

 13 Relations Authority, not the MSPB. And they're

 14 the primary authority on that. Now it's not an

 15 issue properly before this panel. I yield to Mr.

 16 Gilbert.

 17 MR. GILBERT: If my -- my apologies --

 18 if my client had been a probationary employee at

 19 the time that he requested the accommodation, we

 20 wouldn't be here, and that is as conclusive

 21 evidence that there can be that this does not

 22 involve an interpretation of civil service law.

 23 It would have gone to the commission because the

 24 board would have had no jurisdiction. The

 25 Commission has no authority to interpret civil
 45

 1 service laws, but the Commission would have been

 2 able to make a determination in this case.

 3 Chairman Walsh, I believe you actually hit the

 4 analysis of this case right on the nail here,

 5 echoing to some extent what Commissioner Feldblum

 6 commented, and that is that the question of

 7 whether my client could be accommodated in this

 8 job was a question of undue hardship. The

 9 government had every opportunity to present

 10 evidence of that fact at trial. They presented

 11 their evidence. It was, by my view, fairly

 12 meager. It is true that the Commission has

 13 repeatedly said that one of the things we look at

 14 is the number of persons available to perform a

 15 task to determine whether it's an essential

 16 function of the job and just by comparison, the

 17 Board, the Commission has said multiple times as

 18 an example, if you have a small post office, my

 19 colleague Ernie Hadley lives in an area that has a

 20 post office with two employees. Lifting 70 pounds

 21 may well be an essential function of the job, the

 22 ability to lift itself, lifting 70 pounds, may be

 23 essential to that job. But here in Washington,

 24 D.C. we have a post office that has over a

 25 thousand postal employees and the ability for an
 46

 1 individual who possibly never lifts 70 pounds

 2 during the course of a month, they can turn to a

 3 colleague and say, can you lift this bag. That is

 4 exactly the ready why, from the very beginning of

 5 its enactment in 1973, the Rehabilitation Act was

 6 required a case by case analysis, not just of the

 7 individual's disability, but also of the position

 8 itself to determine what are essential functions.

 9 MR. WALSH: Okay I know Commissioner

 10 Feldblum has a question, but I just wanted to just

 11 clarify one thing factually very quickly and that

 12 is, can you just tell, for my benefit, what

 13 exactly was the accommodation that Mr. Alvara was

 14 seeking?

 15 MR. GILBERT: Yes, the accommodations he

 16 requested was to group his overtime, generally

 17 speaking so it was in blocks of four hours and

 18 also to be excused from working the graveyard

 19 shift. There is nothing in the record, by the

 20 way, there is nothing in the record as to whether

 21 on a particular occasion, we had a 9-11, we had a

 22 Katrina, or something of that nature, there is

 23 nothing in the record that indicates whether on a

 24 single occasion, or multiple occasions, whether he

 25 could or not. This was an accommodation to allow
 47

 1 him to have a regular sleep cycle that is an

 2 accommodation requesting that he have a regular

 3 schedule. And the agency would have indeed been

 4 able to do that. And you raised a comment.

 5 MR. WALSH: You had a question.

 6 MS. FELDBLUM: Yes.

 7 MR. GILBERT: Yes.

 8 MS. FELDBLUM: Isn't it true that the

 9 issue of how many other employees exist occurs at

 10 two parts in the statue. If you're trying to

 11 figure out whether something is an essential

 12 function or a marginal function, then how many

 13 employees are available, is just right there in

 14 the regulation or something that you look at,

 15 correct?

 16 MR. GILBERT: That's correct.

 17 MS. FELDBLUM: And, but if, as the EEOC

 18 has said, I believe since 2002 in its enforcement

 19 guidance, that when a particular job duty is

 20 performed, that is dealt with as whether it's a

 21 valid job requirement or a qualification standard,

 22 and then the question is, is modifying that

 23 requirement an undue hardship and there again,

 24 whether it's an undue hardship or not, the number

 25 of people that would be involved would be taken
 48

 1 into account. Is that correct? That it's

 2 imposed?

 3 MR. GILBERT: I think not surprisingly,

 4 that is precisely the Commission's guidance,

 5 that's correct.

 6 MS. FELDBLUM: Okay, so then on the

 7 question of the radical aspect as of the EEOC

 8 dealing with things like actually either timing or

 9 lifting requirements, isn't it true then in a case

 10 that was cited in both briefs, complainant versus

 11 USPS, the Todd case, the Agency tried, argued that

 12 a 70 pound lifting requirement was an essential

 13 function --

 14 MR. GILBERT: That's correct.

 15 MS. FELDBLUM: And the EEOC in its

 16 decision said, actually both the Agency and the

 17 Complainant argued in that way, and isn't it true

 18 that the EEOC said, based on their long standing

 19 guidance, that's not the correct legal way to

 20 analyze this. The question is, is lifting 70

 21 pounds a valid qualification standard?

 22 MR. GILBERT: That's correct. That

 23 case, there were qualification standards, that's

 24 correct. It did not address the question of an

 25 essential function of that particular job, that's
 49

 1 correct.

 2 MS. WAGNER: Mr. Gilbert, can I, again,

 3 looking to the EEOC regs, it talks about, under

 4 essential functions, and it says, a function may

 5 be essential because the limited number of

 6 employees available among whom the performance of

 7 that job function can be distributed, but it

 8 doesn't, again, the converse isn't there, which is

 9 that if you have a lot of employees able to

 10 perform the function, it doesn't necessarily make

 11 it not essential.

 12 MR. GILBERT: Sure, it is true that just

 13 because -- merely because of the fact that there

 14 are other individuals that can perform the job, I

 15 would agree with you Vice Chair Wagner, that does

 16 not necessarily mean -- I'll give you the example.

 17 Firing a weapon -- firing a weapon is essential to

 18 law enforcement position, and whether there's

 19 other people to fire it or not, that's different

 20 than the fact that I'm here. And in fact, let me

 21 just correct the record, because I think counsel

 22 misstated the record here. Nothing in the job

 23 description of the position vacancy requires that

 24 an individual in fact work the graveyard shift.

 25 In fact the language says, the document says, due
 50

 1 to the unique functions of the job, the officer

 2 may work extended or unscheduled hours including

 3 weekends and holidays and be required to rotate

 4 shifts, assignments and duty stations. May, it

 5 doesn't say that they will. In addition to that,

 6 the Agency could, if they -- the Agency certainly

 7 could have done the following. They could have

 8 had three separate shifts, and they could have

 9 hired people for each of the three shifts and if

 10 they wanted to change shifts, they could have had

 11 them compete. And then the job description would

 12 be unique to those shifts. There is no civil

 13 service law that would have precluded them from

 14 doing that. And in those circumstances --

 15 MS. WAGNER: No but there is the civil

 16 service law that says it's the agency has

 17 authority and prerogative to devise shifts as he

 18 or she sees fit, right?

 19 MR. GILBERT: They have the right to

 20 assign work that's correct. But the point is that

 21 if they had done that, that certainly would have

 22 been permissible in the law and this issue would

 23 never have arisen. But there's also the issue

 24 that in this instance, the agency excuse -- you

 25 know either a job task is an essential function or
 51

 1 it's not. And if you -- if the agency took other

 2 individuals and said for a period of two years and

 3 nine months, which the agency conceded and I think

 4 has been the well cited examination I did of the

 5 deciding official here, they conceded that some

 6 women are excused from working graveyard shift for

 7 nine months while they're pregnant and two years

 8 -- two years after that.

 9 MS. WAGNER: But Mr. Gilbert, I'm really

 10 saying that agency's flexibility in applying terms

 11 and conditions in employment should be used as

 12 evidence that they don't necessarily consider

 13 those terms and conditions to be essential.

 14 MR. GILBERT: I'm sorry, but that's

 15 precisely what the law says, and every Federal

 16 court that has addressed that has said that. The

 17 fact is that is we -- if you defer, the

 18 interpretation of the Board, the Board's decision

 19 in this case, would negate in its entirety the

 20 Commission's guidelines on this matter. It would

 21 say that the question of what the essential

 22 functions are should not be determined as the

 23 Commission has said in its well-reasoned decision

 24 by a series of considerations, including only as

 25 one, the employer's judgment, which is given
 52

 1 consideration but which is not determinative, and

 2 you would have an interpretation --

 3 MS. WAGNER: But it's categorically

 4 being --

 5 MR. GILBERT: The Board's determination,

 6 the Board's decision, it would negate that in its

 7 entirety, and it would say that employers can

 8 determine what the essential functions are, and

 9 that those are not able to be challenged. That's

 10 not what the statute says.

 11 MS. WAGNER: No that's not what the

 12 Board said.

 13 MR. WALSH: I'm not sure what the Board,

 14 it's not what the Board said.

 15 MS. WAGNER: But what I think the EEOC's

 16 decision said is that they're essentially writing

 17 out the employer's identification and the position

 18 description which are in its regulations as being

 19 bases for finding that function is essential.

 20 MR. GILBERT: Not at all, in this

 21 particular instance, the Commission's decision

 22 says that under the facts of this particular case,

 23 under the facts as presented in this particular --

 24 MS. WAGNER: It says time and attendance

 25 shall never be considered.
 53

 1 MR. GILBERT: That's not with the

 2 Commission decision says, it's not -- it says that

 3 it's not determinative of the essential functions

 4 in and of itself. The fact is that the

 5 Commission's decision says that under the facts of

 6 this case, the evidence shows that it was not an

 7 essential function of the position. Now the only

 8 question is, could the employer have accommodated

 9 our client in the manner that was discussed? And

 10 the Commission found that there was evidence that

 11 it could have --

 12 MR. WALSH: I'm not sure, but what Vice

 13 Chair Wagner has a point though that the

 14 Commission effectively removed it from the

 15 essential functions category and shifted it over

 16 to the undue hardship category.

 17 MR. GILBERT: Under the facts of this

 18 case.

 19 MR. WALSH: I'm not sure that's the

 20 case. I mean they were pretty categorical.

 21 MR. GILBERT: About attendance in

 22 general.

 23 MR. WALSH: Right.

 24 MR. GILBERT: Yes, but the guide -- the

 25 Commission's decision clearly says that you should
 54

 1 not consider attendance in an of itself as an

 2 essential function. It says that does a

 3 disservice and that is our -- and this is within

 4 the purview of the EEOC and again the issue before

 5 this panel --

 6 MR. WALSH: Maybe that's what

 7 Commissioner Wagner is saying the Board objects

 8 to.

 9 MR. GILBERT: It may object to it, but

 10 it's a reasonable interpretation and the only

 11 issue before the panel here, is whether there is

 12 evidence whether the Commission's decision is

 13 supported by the record, nothing more.

 14 MR. WALSH: Thank you. Thank you.

 15 MR. GILBERT: Thank you.

 16 MR. NAHRGANG: Good afternoon. May it

 17 please the special panel, my name is Lamont

 18 Nahrgang with Peter Acuri, I represent the Agency

 19 in this matter and have from the very beginning.

 20 What's being completely ignored here today in all

 21 the argument and I think it's being ignored by the

 22 Commission as well as the appellant for a reason

 23 is ordered over time. Everybody wants to focus on

 24 whether or not we can -- well he doesn't have to

 25 work, it's only one of shifts, there's only seven
 55

 1 percent of the people that work these shifts,

 2 therefore how can it be essential and this is

 3 flawed logic, and it's so flawed that --

 4 MS. FELDBLUM: So let me just ask in

 5 terms of the reasonableness of the EEOC's dealing

 6 with this under the undue hardship analysis. So I

 7 want to ask you this same question. Do you agree

 8 that special requirements of the CBO position

 9 include carrying a fire arm, and presumably firing

 10 it, possessing a valid state driver's license,

 11 working shifts on a rotating basis, performing a

 12 substantial amount of overtime? So would you

 13 agree that these are part of the requirements of

 14 the job?

 15 MR. NAHRGANG: I do but --

 16 MS. FELDBLUM: Okay, so do you also

 17 agree that since 2002 the EEOC in its enforcement

 18 guidance have said that requirements of a job,

 19 such as being physically present or presumably

 20 working overtime, the requirements of a job,

 21 should never be viewed as an essential function,

 22 but rather should be viewed as job requirements of

 23 a job? Do you agree that that's what the EEOC has

 24 said since 2002?

 25 MR. NAHRGANG: I believe that's what
 56

 1 they have said. I think that what the EEOC would

 2 like to --

 3 MS. FELDBLUM: Okay, I just want to go

 4 to in terms of what the reasonableness of where we

 5 place this. So you agree that since 2002 the EEOC

 6 has made a distinction between the duties of a

 7 job, the essential duties, and do you also agree

 8 that under the law, once something is determined

 9 to be an essential function, that cannot -- no

 10 employee can ask as a reasonable accommodation

 11 that that essential function be removed. Do you

 12 agree that as a matter of law, once something is

 13 decided to be an essential function, that's the

 14 end of the story? You cannot ask as a reasonable

 15 accommodation to remove that essential function.

 16 Do you agree that that's the law?

 17 MR. NAHRGANG: That they would not be a

 18 qualified individual if they cannot --

 19 MS. FELDBLUM: Correct, they would not

 20 be qualified if what they were asking for is --

 21 MR. NAHRGANG: Do essential functions,

 22 yes.

 23 MS. FELDBLUM: Correct, okay. So are

 24 you also aware that into, again, this is just to

 25 the reasonableness of the fact that the EEOC is
 57

 1 deciding this undue hardship and making the

 2 individual assessment. What do you make of

 3 decisions like Tah, the postal service where the

 4 Agency argued very vigorously that being able to

 5 lift 70 pounds was an essential function, such

 6 that if you couldn't do it, that was it or Nathan,

 7 which was a law enforcement case, where the FBI

 8 argued very strenuously that being able to see 20

 9 20 was an essential function and in both cases

 10 that the EEOC decided it under an undue -- under,

 11 either was it justified, was it this job

 12 requirement justified in the first place, or even

 13 if it was, like in the Vision standard, was there

 14 an accommodation. So again, this is all towards

 15 the reasonableness of the EEOC deciding Alvarez it

 16 did.

 17 MR. NAHRGANG: I think the EEOC split an

 18 unbelievable hair because the essential function

 19 is not the ability. It's working substantial lobe

 20 types, actually protecting the border at night is

 21 not an ability. It's something that they do. And

 22 that's the essential function -- protecting the

 23 border in the middle of the night, and then back

 24 to my original -- ordered overtime was completely

 25 ignored by everybody. These folks get ordered to
 58

 1 stay 8 hours. So even if Mr. Alvara can work the

 2 two to ten shift, because that's an available

 3 shift for him, he can't be ordered to stay and to

 4 work 8 hours.

 5 MR. WALSH: He offered to work a

 6 substantial amount of overtime though, he offered

 7 to work twelve hour shifts, I mean, as part of his

 8 accommodation, I think that's what I just

 9 clarified, that he offered to work four hours of

 10 overtime a day.

 11 MR. NAHRGANG: However, again, Your

 12 Honor, these things -- ordered overtime is not

 13 done that way, or ordered overtime is done at the

 14 end of a shift, often times for either very, very

 15 big reasons or very mundane reasons, that they

 16 have to order folks to work two hours, four hours

 17 and eight hours --

 18 MR. WALSH: As I understand under his

 19 accommodation though, the only ordered overtime he

 20 would not be willing to accept would be between 12

 21 AM and 6 AM.

 22 MR. NAHRGANG: Well I would posit that

 23 the eight hour -- what he's really required and

 24 was factually not correct in the EEOC's decision

 25 was -- we was requiring eight hours of sleep every
 59

 1 night, and he's disabled, therefore the Agency has

 2 to give this to him. You know, he's disabled. He

 3 cannot work that eight hours.

 4 MR. WALSH: Between 12 and 6.

 5 MR. NAHRGANG: That's not eight hours.

 6 That's six hours, hence, he has to have eight

 7 hours of nocturnal sleep, he has to have travel,

 8 he has to have --

 9 MR. WALSH: Maybe I have the hours

 10 wrong, but he can't work the overnight shift.

 11 MR. NAHRGANG: Right, so if he's working

 12 the two to ten, he can't work --

 13 MR. WALSH: So if he's working eight

 14 hours --

 15 MR. NAHRGANG: He can't work

 16 additionally beyond that.

 17 MR. WALSH: That's right, so it's just

 18 -- he wouldn't be able to take overtime during the

 19 overnight shift.

 20 MR. NAHRGANG: That's correct.

 21 MR. WALSH: Okay.

 22 MR. NAHRGANG: And when everybody else

 23 would, or when he was ordered and when management

 24 needed him to be there for very important reasons

 25 that --
 60

 1 MR. WALSH: They needed someone to be

 2 there.

 3 MR. NAHRGANG: That's correct.

 4 MS. WAGNER: Counsel, they OPM

 5 regulations provide that the head of an agency

 6 shall schedule the work on his or her employees to

 7 accomplish the mission of the agency. So are you

 8 -- are you saying that scheduling overtime or

 9 ordering unscheduled overtime is part of that

 10 authority to schedule the work of employees within

 11 your agency?

 12 MR. NAHRGANG: Yes, that is the agency's

 13 position. Additionally, the position is that the

 14 EEO's decision in this case is so flawed, so

 15 flawed in the outcome, that it does in and of

 16 itself violate civil service law, which is one of

 17 the two standards.

 18 MR. WALSH: Let me ask you that in terms

 19 of the legal question. We have to look at

 20 reasonableness here. And that's really our

 21 guidepost. If we get beyond the first question we

 22 have to answer about whether there's a civil

 23 service law that's even being misinterpreted.

 24 Second question is we have to say, is was it

 25 reasonable. Well in making this decision, the
 61

 1 EEOC relied on its own policy guidance, as guided

 2 by Federal case law. I mean, I've read the

 3 guidance, we've all read the guidance. They have

 4 very capable staff people. They've all looked

 5 into the case law and they looked at what they've

 6 done and what the cases they've seen. They

 7 clearly relied on their policy guidance. Why

 8 isn't that reasonable? Why isn't that enough for

 9 us? We have to give due deference to the EEOC.

 10 Why isn't that enough?

 11 MR. NAHRGANG: The Agency's position is

 12 they didn't rely on their own guidance at all. In

 13 their decision they said, they simply said, we

 14 don't have to follow what the Agency puts in the

 15 position description, so since we don't have to,

 16 then we're going to do something different, and in

 17 the --

 18 MR. WALSH: With all due respect that's

 19 not accurate that they didn't rely on their

 20 guidance. They said that the Bouffard decision

 21 was clearly antithetical to their guidance, so

 22 they relied on their guidance.

 23 MR. NAHRGANG: However they did give --

 24 what could the Agency have done Chairman Walsh?

 25 They give guidance on the things to be considered,
 62

 1 all of the different things to be considered in

 2 1614, or excuse me, 1630, of how to determine it.

 3 And then they only look at one thing and they say,

 4 in this case, you know, we're going to look at one

 5 thing and since we don't agree with it, we don't

 6 have to; we're going to move on.

 7 MS. FELDBLUM: No, but this was my

 8 question again. All that stuff about how to

 9 decide whether something was an essential

 10 function, I mean isn't it -- wouldn't it be

 11 obvious that the EEOC wouldn't be looking at all

 12 those factors if they've already said, starting

 13 from their 2002 guidance, as well as in more

 14 recent cases, that's the wrong place in this

 15 statute to be looking.

 16 MR. WALSH: Right.

 17 MS. FELDBLUM: It's not inherently an

 18 essential function, because you can never as an

 19 accommodation remove that, so it would mean by

 20 inherently, someone who couldn't do what is really

 21 a job requirement under the law must be modified

 22 unless it would impose an undue hardship. I mean,

 23 why would the EEOC be looking at a part of this

 24 statute and regulations that it's already said is

 25 not relevant to this question and has said that
 63

 1 for some time.

 2 MR. NAHRGANG: Because it's not because

 3 they split the hair and they say, ability is not

 4 outcome, and they can forget about their also

 5 guidance on duty and the duty is to protect the

 6 border at night. If you use the analogy of a

 7 weapon, it says the ability to carry a weapon. In

 8 the situation, you can do the identical analysis

 9 that's been done and a person goes in and says, I

 10 cannot go in and carry a weapon anymore, because

 11 my doctor says that I can't, and but carrying a

 12 weapon is not an outcome, that's not a thing, but

 13 --

 14 MS. FELDBLUM: I think in the sentence I

 15 read that carrying a weapon and firing a weapon

 16 would be part of the job requirements, not -- the

 17 essential duty is to protect people, the essential

 18 outcome right?

 19 MR. NAHRGANG: Right.

 20 MS. FELDBLUM: So I think with all due

 21 respect to Mr. Gilbert that firing a weapon would

 22 certainly be a job requirement and that it's hard

 23 to see how it wouldn't be an undue hardship to

 24 take that away.

 25 MR. NAHRGANG: Actually it wouldn't,
 64

 1 because if there's enough people, they could

 2 simply absorb that and they do and

 3 non-permanently.

 4 MS. FELDBLUM: The person is on the job?

 5 While the person is on the job, to give that over

 6 to someone else?

 7 MR. WALSH: Yeah, I think that's a

 8 little different.

 9 MR. NAHRGANG: The Agency's position is

 10 that it's not. They do it non-permanently all the

 11 time. They take away people's weapons and they

 12 find things for them to do.

 13 MS. WAGNER: Again, if I could just, I

 14 mean, the idea isn't that any given case, that

 15 might not be true, but that to categorically

 16 divorce the when of the, when the activity has to

 17 be performed, from the activity, seems artificial

 18 at best, and I'm not sure if it is reasonable.

 19 MR. WALSH: Yeah, it may be artificial,

 20 but I still don't understand why -- it's not

 21 categorical in the sense that you can never get

 22 out of this, okay? You get out of it by showing

 23 an undue hardship. I mean, that's your out. So

 24 it's not categorical, it's not never. You know,

 25 if you show an undue hardship because you have to
 65

 1 accommodate someone's shift desire, it's not

 2 categorical, it's --

 3 MR. NAHRGANG: But the --

 4 MR. WALSH: You had the opportunity to

 5 show it and you didn't.

 6 MR. NAHRGANG: There was tons --

 7 actually there was evidence in the record, tons of

 8 evidence that was ignored in the Commission's

 9 decision, evidence of everything that hit

 10 essential function as well as evidence that this

 11 wasn't a hypothetical that it was an undue

 12 hardship. The reason they had the meeting in the

 13 first place was because it was a hardship. They

 14 had a percentage of the population out and that

 15 was causing a hardship and so now, that's why they

 16 had the meeting in the first place.

 17 MR. WALSH: But seeing that

 18 accommodation is always going to be a hardship on

 19 someone. The question is, have you proven it was

 20 an undue hardship? The question for us is, was it

 21 unreasonable for the EEOC to say you didn't prove

 22 it?

 23 MR. NAHRGANG: Again, the Agency's

 24 position is that it is an essential function

 25 that's needed for law enforcement officers to do.
 66

 1 MR. WALSH: Okay, thank you. I believe

 2 all the time has been expired but we have

 3 something that we have to kind of spring on you

 4 now I'm afraid. No that's okay, this is for

 5 everyone. And I'm going to defer to Vice Chair

 6 Wagner on this, but there has been an issue that

 7 the folks at the MSPB have raised sua sponte that

 8 you have no reason to know about because they

 9 raised it sua sponte and we only learned about it

 10 ourselves in the last couple days. And we're

 11 going to need probably some briefing on it. It's

 12 kind of a -- it's not -- it's an issue that's

 13 somewhat peripheral to the issues we've been

 14 talking about today, so I'm going to let Vice

 15 Chair Wagner talk about it.

 16 MS. WAGNER: Thank you Chairman Walsh.

 17 In preparing for this proceeding, we were

 18 undertaking an extensive review of the record of

 19 the case and became aware of the fact, that when

 20 the presiding official testified at the hearing,

 21 she testified to some degree at length about the

 22 fact that she had considered the collective

 23 bargaining agreement in deciding that the

 24 appellant failed to meet the physical requirements

 25 of the position and therefore sustained the charge
 67

 1 of removal. Under Stone vs. FDIC which is

 2 controlling authority decision of the Federal

 3 Circuit, a deciding official's consideration of

 4 information without notifying the appellant that

 5 the information is being considered and giving the

 6 appellant an opportunity to respond to that

 7 information, is a due process violation, and the

 8 Board has uniformly ordered reversal of an adverse

 9 action if the appellant was not provided adequate

 10 notice and an opportunity to respond. So at this

 11 juncture, we're reviewing the decision in this

 12 process to see what the impact, if in fact we do,

 13 upon examination of the record and legal analysis

 14 conclude that the appellant was denied due

 15 process, we will consider vacating the initial

 16 decision. What impact that has on this proceeding

 17 is in question, so it -- Chairman, if you want to

 18 --

 19 MR. WALSH: We really need some briefing

 20 on this because I have some serious questions

 21 about the MSPB's jurisdiction to take the case

 22 back at this point and I'd like your view about

 23 that. Also, does -- if they do have the authority

 24 and that goes in a question of whether there is an

 25 MSPB final decision yet, that can be taken back,
 68

 1 and also your view on what would be the effect of

 2 this? What's the consequence if they should -- if

 3 they do have that authority, and if they exercise

 4 it to vacate the decision, does that mean that the

 5 panel, we as a panel, don't need to make our

 6 decision or can both decisions exist at the same

 7 time? I mean, these are all kind of uncharted

 8 territory. And so we need your views on the

 9 jurisdictional question and I guess on the merits

 10 of the Board's view of this. It's not in my view;

 11 it's not the panel's job to determine this due

 12 process issue. It would have to be taken back by

 13 the MSPB, in order for it to be determined. This

 14 is not under 7702; this is not in our purview to

 15 make such a decision. So we need to know whether

 16 the MSPB can take it back and what's the effect of

 17 taking it back if they can. And we would like

 18 briefing on this, in an hour if possible.

 19 (Laughter)

 20 MR. WALSH: Actually, we do have a tight

 21 time frame and the whole panel intends to meet our

 22 statutory time frame of getting this decision out

 23 in 45 days, so we will expect a briefing on this

 24 issue in a week, a week from today, and

 25 electronically if you could. And I think -- yes
 69

 1 --

 2 MR. GILBERT: Can you clearly state the

 3 issues exactly? I apologize.

 4 MR. WALSH: I wish I could.

 5 MR. GILBERT: So we know what we're

 6 briefing exactly and what you're expecting or

 7 something?

 8 MR. WALSH: Excuse me?

 9 MR. GILBERT: Or can we get an order?

 10 Sorry.

 11 MR. WALSH: Well I will clearly as I can

 12 state the jurisdictional question. The

 13 jurisdictional question for the special panel is

 14 -- is there a less than final decision of the MSPB

 15 that the MSPB has the authority to take back and

 16 to vacate if they so -- if they deem appropriate.

 17 And if so, what does that mean for, in terms of

 18 what we need to do next, the special panel,

 19 whether we should go forward and issue our

 20 decision. Those are what I would like to see

 21 briefed. Is that okay?

 22 MS. WAGNER: That's -- yes.

 23 MR. WALSH: Okay. I believe that,

 24 unless there's other questions from the panel, I

 25 believe that concludes our session today. Again,
 70

 1 I want to thank the NLRB and I want to thank the

 2 parties for a very interesting argument.

 3 MS. WAGNER: Thank you.

 4 MR. WALSH: Thank you very much.

 5 (Whereupon, at 5:44 p.m., the

 6 PROCEEDINGS were adjourned.)

 7 * * * * *

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 1 CERTIFICATE OF NOTARY PUBLIC

 2 I, Jay C. Anderson, as the reporter, hereby

 3 certify that the attached proceeding

 4 before

 5 the Panel of the U.S. Merit Systems Protection

 6 Board, in the matter of

 7 REYNALDO ALVARA v. DEPARTMENT OF HOMELAND SECURITY

 8 MSPB No. DA-0752-10-0223-E-1

 9 EEOC Petition No. 0320110053

 10 Washington, D.C.

 11 September 8, 2014

 12 was held as herein appears and that this is the

 13 original transcript thereof and that the

 14 statements that appear in this transcript were

 15 stenographed by me to the best of my ability. I

 16 also certify that this transcript is a true and

 17 accurate record of the proceedings.

 18

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