UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2011 MSPB 75 

Docket No. DA-0752-10-0223-I-1 

Reynaldo Alvara, 

Appellant, 

v. 

Department of Homeland Security, 

Agency. 

August 17, 2011 

Gary M. Gilbert, Esquire, and Julie E. Rook, Esquire, Silver Spring, 

Maryland, for the appellant. 

Lamont D. Nahrgang, Esquire, and Peter Arcuri, Esquire, El Paso, Texas, 

for the agency. 

BEFORE 

Susan Tsui Grundmann, Chairman 

Anne M. Wagner, Vice Chairman 

Mary M. Rose, Member 

OPINION AND ORDER

¶1 This case is before the Board on the appellant’s petition for review of the 

initial decision that affirmed his removal, finding that he did not establish his 

claim of disability discrimination. For the reasons set forth below, the Board 

AFFIRMS the initial decision as MODIFIED, still AFFIRMING the agency’s 

action. 
2

BACKGROUND

¶2 The appellant, a GS-11 Customs and Border Patrol Officer (CBPO), suffers 

from sleep apnea, a permanent condition which requires him to get 8 hours of 

nocturnal sleep and which thereby precludes him from working the graveyard 

shift or performing substantial amounts of overtime, both features of his position. 

Initial Appeal File (IAF), Tab 7b at 41, 80-88, 89-102. The agency 

accommodated him for some time, but when a new Port Director was appointed, 

she began to examine the workload assignment situation, specifically, the number 

of CBPOs who, for a variety of reasons, were on light duty. Compact Disc (CD), 

testimony of Ana Hinojosa. She found that the appellant could not perform the 

full range of his duties. In response to his request for accommodation, she found 

that not requiring him to work the graveyard shift and substantial overtime on a 

permanent basis was not a reasonable accommodation. Id. She directed the 

agency to undertake a search for other suitable positions within the appellant’s 

commuting area that he could perform, but none were found. She offered to 

extend the search outside the commuting area, but the appellant declined. IAF, 

Tab 7a at 65, 41-42. Accordingly, she effected his removal for physical inability 

to perform. Id. at 39-41. 

¶3 On appeal, the appellant renewed his claim of disability discrimination, 

arguing that the agency failed to reasonably accommodate his disability by not 

allowing him to work a stable schedule. Id., Tab 1. And, he claimed that the 

agency’s action constituted retaliation for his protected equal employment 

opportunity (EEO) activity, specifically, requesting reasonable accommodation. 

Id., Tab 21. 

¶4 After conducting the requested hearing, the administrative judge issued an 

initial decision in which she sustained the charge, finding that the agency showed 

that the appellant is physically unable to meet the conditions of his employment 

due to his medical condition. Id., Tab 28, Initial Decision (ID) at 8-9. She then 
3

addressed his claim of disability discrimination.1

 She found that he is disabled, 

id. at 10, but, after reviewing all of the hearing testimony, 2 id. at 10-22, she 

found 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. Id. at 22. She found that the 

accommodation he requested, not having to work rotational shifts and overtime, 

was a request to change the essential functions of his job. Id. She considered 

whether the agency could accommodate the appellant’s condition by reassigning 

him to a vacant position but found that none was available within his commuting 

area and that he had not agreed to an expanded search. Id. at 23. The 

administrative judge concluded that the appellant had failed to identify any 

reasonable accommodation that would have allowed him to continue working and 

that he therefore did not establish disability discrimination. Id. She then found 

that he did not establish that the agency retaliated against him for engaging in 

 

1 In setting out the appellant’s burden of proof regarding his claim of disability 

discrimination in the initial decision, the administrative judge stated that he must 

establish not only that he has a disability, but that he is a qualified individual with a 

disability, and that he must also articulate to the extent possible a reasonable 

accommodation under which he believes he could perform the essential duties of his 

position or of a vacant funded position to which he could be reassigned. ID at 9. The 

administrative judge’s stated approach was not appropriate. At the time of issuance of 

the initial decision, the record was complete and both parties had had an opportunity to 

submit evidence on the discrimination issue. At that stage of the proceedings, the 

proper inquiry was whether the appellant proved, by preponderant evidence, that the 

agency committed discrimination. Paris v. Department of the Treasury, 104 M.S.P.R. 

331, ¶ 23 (2006). He could not prevail merely by “articulating” a reasonable 

accommodation. Id., ¶ 24. The administrative judge properly found, however, after 

reviewing the evidence, that the appellant did not prove that he was a qualified 

individual with a disability because he did not prove that he was denied reasonable 

accommodation and that therefore his affirmative defense must be denied. ID at 22-23. 

Thus, while the administrative judge set out the incorrect standard of proof, she applied 

the correct standard and so did not prejudice the appellant’s substantive rights. Panter 

v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984). 

2

 The only witnesses who testified were six agency managers, all called by both parties. 

Although approved to testify, the appellant did not do so. IAF, Tab 21 at 7, Tab 27. 
4

protected EEO activity, id. at 23-24, and that the agency showed that its action 

promoted the efficiency of the service and that removal was a reasonable penalty 

for the sustained charge. Id. at 24-25. As such, she affirmed the agency’s action. 

The agency has responded in 

opposition to the appellant’s petition. Id., Tab 7. 

Id. 

¶5 In his petition for review, the appellant argues that the administrative judge 

erred in finding that the ability to work the graveyard shift and substantial 

overtime is an essential function of his position and that his inability to perform 

those tasks precludes him from being a qualified individual with a disability. 

Petition for Review (PFR) File, Tab 5 at 13-29. The appellant also argues that 

the agency failed to establish that his requested accommodation would pose an 

undue hardship for the agency. Id. at 29-32. 

ANALYSIS

¶6 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 such position. 29 C.F.R. § 1630.2(m). The term “essential 

functions” means the fundamental job duties of the position, not the marginal 

functions. 29 C.F.R. § 1630.2(n)(1). Evidence of whether a particular function is 

essential includes, but is not limited to, the employer’s judgment as to which 

functions are essential; written job descriptions prepared before advertising or 

interviewing applicants for the job; the amount of time spent on the job 

performing the function; the consequences of not requiring the incumbent to 

perform the function; the terms of a collective bargaining agreement; the work 

experience of past incumbents in the job; and/or the current work experience of 

incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3)(i) – (vii). 

¶7 Although the administrative judge did not, in her analysis, specifically cite 

to the latter regulation of the Equal Employment Opportunity Commission 
5

(EEOC), she nevertheless considered the appropriate factors in determining that 

the ability to work the graveyard shift and significant overtime is an essential 

function of the appellant’s position. She considered, as evidence of the 

employer’s judgment on the issue, testimony from the Customs and Border Patrol 

Chief Officer for the Port of El Paso where the appellant was employed, ID at 11-

12, the several individuals who served for various portions of time as Acting Port 

Director (one of whom was the proposing official), id. at 13-16, the Mission 

Support Specialist who was detailed to the Light Duty/Limited Duty Program, id.

at 16-17, the Diversity and Civil Rights Officer, id. at 17-19, and the Director of 

Field Operations (the deciding official), id. at 19-22. All of these witnesses 

provided reasons why, in their view, the ability to work the graveyard shift and 

significant overtime is an essential function of the CBPO position. Those reasons 

included the fact 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, although it 

has been done on a temporary basis, such as to accommodate pregnant or breastfeeding CBPOs, 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 appellant’s requested accommodation 

would circumvent the collective bargaining agreement because it imposes limits 

on how much overtime each employee can be ordered to work. In addition, the 

administrative judge considered the CBPO position description which includes, 

among its Special Requirements, that the incumbent “must work on a shift and 

rotational basis and perform substantial amounts of overtime.” ID at 8; IAF, Tab 

7a, Subtab 4oo. And, the administrative judge considered the CBPO’s Medical 

Standards and Physical Requirements which provide that the incumbent “may 

work extended or unscheduled hours including weekends and holidays and be 
6

required to rotate shifts, assignments and duty stations.” ID at 8; IAF, Tab 7a, 

Subtab 4pp at 3. Finally, the administrative judge relied upon the EEOC’s 

findings, in Bouffard v. Department of Homeland Security, Appeal No. 

0120065257, 2008 WL 276452, at *5 (E.E.O.C. Jan. 16, 2008), 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 which 

the agency is not required to do. ID at 22. 

¶8 In Bouffard, the EEOC directly addressed the dispositive issue presented in 

this case. We note that the Board 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. See, e.g., Schwartz v. Department of Education, 113 M.S.P.R. 601, 

¶ 12 (2010); Parks v. U.S. Postal Service, 110 M.S.P.R. 64, ¶¶ 6-7 (2008); Evans 

v. Department of Homeland Security, 107 M.S.P.R. 484, ¶ 9 (2007); Kimble v. 

Department of the Navy, 70 M.S.P.R. 617, 622 (1996); Ignacio v. U.S. Postal 

Service, 30 M.S.P.R. 471 (Spec. Pan. 1986). Accordingly, because the Bouffard

decision involves an issue of substantive discrimination law and is neither based 

on civil service law or is so unreasonable as to amount to a violation of civil 

service law, we will defer to the EEOC’s determination that the agency is not 

required to accommodate a disabled CBPO by granting a request not to work 

rotational shifts and overtime. 

¶9 As noted above, the EEOC, in Bouffard, addressed the dispositive issue in 

this case. Moreover, the appellant’s challenge to the administrative judge’s 

findings is unavailing. Specifically, the appellant disputes the way in which she 

analyzed the appropriate factors in considering whether the ability to work the 

graveyard shift and substantial overtime is an essential factor in the CBPO 

position. For example, the appellant argues that other CBPOs, namely females 

who have recently given birth, are exempted from the graveyard shift indefinitely 
7

without any impact to the agency’s mission. As noted, the administrative judge 

considered such evidence but did not find it dispositive of the issue of whether 

the ability to work the graveyard shift and substantial overtime is an essential 

function of the CBPO position because, as the agency witnesses explained, the 

females’ condition and their related exemption is temporary whereas the 

appellant’s condition and requested exemption is permanent. ID at 12-16, 19-22. 

The appellant has failed to show that such a distinction is not a reasonable one. 

He also challenges the administrative judge’s reliance on the CBPO’s Medical 

Standards and Physical Requirements as requiring incumbents to work rotational 

shifts and significant overtime on the basis that the document provides that the 

Officer “may” work extended or unscheduled hours and “may” be required to 

rotate shifts, assignments, and duty stations. Reading this document in 

conjunction with the position description supports the administrative judge’s 

finding. The use of “may” (along with “required”) in the Standards and 

Requirements does not provide a basis to disregard the position description, 

which is, on this point, wholly consistent with other evidence, including all of the 

testimony, that the ability to work the graveyard shift and significant overtime is 

an essential function of the CBPO position. 

¶10 The appellant argues that the administrative judge ignored the fact that the 

agency exempted him from working the graveyard shift for a period of time with 

apparently no adverse effect on the agency’s mission. As the administrative 

judge found, the new Port Director who took that position in May 2008 found an 

unusually large number of employees on light duty and an inconsistent process 

used to manage them. ID at 19. She also found that a significant portion of those 

employees had been on light duty for a very long time and that management had 

not been following up on their progress. For these reasons, the new Port Director 

undertook to change the way the agency handled light duty. Id. The work 

experience of past incumbents in the job is a factor for consideration under the 

EEOC’s regulations on “essential functions.” However, to the extent that the 
8

agency accommodated the appellant for a period of time by eliminating essential 

functions, it was not obligated to do so indefinitely. Comerford v. Department of 

the Navy, Appeal No. 01A44524, 2006 WL 2096269, at *5 (E.E.O.C. July 21, 

2006). 

¶11 The appellant argues that the administrative judge erred in failing to 

consider the availability of other CBPOs to work the graveyard shift. The 

EEOC’s regulations provide that a job function may be essential for any of 

several reasons, one of which is that there are a limited number of employees 

available among whom the performance of that job function can be distributed. 

29 C.F.R. § 1630.2(n)(2)(ii). By its language, that provision does not require that 

a function must be considered essential if there are a limited number of such 

employees. While there was testimony that substantially more CBPOs routinely 

work at the Port than CBPOs who are required to work the graveyard shift on any 

particular night, CD (testimony of Acting Port Director William Molaski), there 

was also testimony that budget and morale implications arise when CBPOs are 

ordered to work more overtime than their fair share. Id. (testimony of Michael 

Brady, Chief Port Officer). Moreover, the administrative judge's failure to 

mention all of the evidence of record does not mean that he did not consider it in 

reaching his decision. Marques v. Department of Health & Human Services, 22 

M.S.P.R. 129, 132 (1984), aff'd, 776 F.2d 1062 (Fed. Cir. 1985) (Table). 

¶12 The appellant also argues that neither Molaski’s testimony, nor deciding 

official Ana Hinojosa’s testimony, was credible and that the administrative judge 

should have afforded no weight to it. The appellant refers to Molaski’s 

deposition testimony that he did not know what “ADA” stood for and had not, at 

the time in question, received training on the Rehabilitation Act. IAF, Tab 21, 

Appellant’s Exhibit C at 22, 42. The administrative judge acknowledged 

Molaski’s deposition testimony, ID at 15-16, but did not find him incredible 

based upon it. The appellant also refers to Hinojosa’s testimony that she was not 

involved in the processing or denying of the appellant’s request for reasonable 
9

accommodation. CD. While the administrative judge did not make any specific 

credibility determinations, she did find that all of the witnesses testified that 

working rotating shifts and significant amount of overtime were essential 

functions of the CBPO position. ID at 22. Because that is the dispositive issue in 

this appeal, the appellant has not by his claims shown that the administrative 

e earlier time. See Burton v. U.S. Postal 

judge erred in arriving at her determination on that issue. 

¶13 The appellant next argues that the agency failed to conduct an analysis of 

the essential functions of the CBPO position before denying him an 

accommodation. Even if so, the issue before the administrative judge, with 

regard to the appellant’s defense of disability discrimination, was whether he 

established that he was disabled and, if so, whether he demonstrated that he was a 

qualified individual with a disability. To the extent that that analysis included 

consideration of whether the appellant showed that he could perform the essential 

functions of his position with or without accommodation, that issue was for the 

administrative judge to decide de novo and did not depend on whether the agency 

had conducted a proper analysis at som

Service, 112 M.S.P.R. 115, ¶ 8 (2009). 

¶14 Finally, the appellant asserts that, although the agency never argued that 

exempting the appellant from the graveyard shift would pose an undue hardship, 

the administrative judge referred to undue hardship in her initial decision, 

implying that she would find that the appellant’s request to be exempted from the 

graveyard shift would pose an undue hardship on the agency. The appellant goes 

on to challenge that alternative finding. Based on the administrative judge’s 

finding that the appellant did not establish that he was a qualified individual with 

a disability because he could not perform the essential functions of his CBPO 

position with or without reasonable accommodation, the administrative judge 

found that she need not reach the issue of whether providing his requested 

accommodation would impose an undue hardship on the agency, although she 

noted that the EEOC found, in Cyr v. Department of Homeland Security, Appeal 
10

No. 01A43015, 2005 WL 1714414, at *2 (E.E.O.C. July 13, 2005), that providing 

a permanent day shift to an Immigration Inspector would impose an undue 

hardship on the agency. ID at 22 n.25. As noted, the administrative judge found 

that the appellant failed to prove that he was a qualified individual with a 

disability and that he therefore did not establish his claim of disability 

discrimination. ID at 25-26. Because we agree with the administrative judge’s 

findings, it is unnecessary to address the agency’s challenge to her alternative 

finding as to undue hardship, which is essentially dicta. 

ORDER

¶15 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision. 

Discrimination Claims: Administrative Review

You may request the Equal Employment Opportunity Commission (EEOC) 

to review this final decision on your discrimination claims. See Title 5 of the 

United States Codes, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). You must send 

your request to EE

Equal E ission 

Office of Federal Operations 

eipt by your representative. If you choose to 

file, be very careful to file on time. 

OC at the following address: 

mployment Opportunity Comm

P.O. Box 77960 

Washington, DC 20036 

You should send your request to EEOC no later than 30 calendar days after your 

receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after rec
11

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 

the district court no later than 30 calendar days after your receipt of this order. If 

you have a representative in this case, and your representative receives this order 

before you do, then you must file with the district court no later than 30 calendar 

days after receipt by your representative. If you choose to file, be very careful to 

file on time. If the action involves a claim of discrimination based on race, color, 

religion, sex, national origin, or a disabling condition, you may be entitled to 

representation by a court-appointed lawyer and to waiver of any requirement of 

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f); 

29 U.S.C. § 794a. 

Other Claims: Judicial Review

If you do not want to request review of this final decision concerning your 

discrimination claims, but you do want to request review of the Board’s decision 

without regard to your discrimination claims, you may request the United States 

Court of Appeals for the Federal Circuit to review this final decision on the other 

issues in your appeal. You must submit your request to the court at the following 

address: 

United States Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, DC 20439 

The court must receive your request for review no later than 60 calendar days 

after your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with the court 

no later than 60 calendar days after receipt by your representative. If you choose 
12

to file, be very careful to file on time. The court has held that normally it does 

not have the authority to waive this statutory deadline and that filings that do not 

comply with the deadline must be dismissed. See Pinat v. Office of Personnel 

Management, 931 F.2d 1544 (Fed. Cir 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703). You may read 

this law, as well as review the Board’s regulations and other related material, at 

our website, http://www.mspb.gov. Additional information is available at the 

court's website, www.cafc.uscourts.gov. Of particular relevance is the court's 

"Guide for Pro Se Petitioners and Appellants," which is contained within the 

court's Rules of Practice, and Forms 5, 6, and 11. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C.