UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2014 MSPB 63

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

EEOC Petition No. 0320110053

Reynaldo Alvara,

Appellant,

v.

Department of Homeland Security,

Agency.

August 13, 2014

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

Maryland, for the appellant. 

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

the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

OPINION AND CERTIFICATION ORDER

¶1 The Equal Employment Opportunity Commission (EEOC) has referred this 

appeal of the appellant’s removal to the Board for further consideration pursuant 

to 5 U.S.C. § 7702 (b)(5)(B) because the EEOC’s decision differs from the 

Board’s decision in this case. For the following reasons, we conclude that, as a 

matter of law, the EEOC’s decision is based upon an incorrect interpretation of 

civil service law, rule, or regulation. In the alternative, we find that the evidence 

in the record does not support the EEOC decision and that the EEOC decision is 
2

so unreasonable that it amounts to a violation of civil service law, rule, or 

regulation. Thus, the Board cannot agree with the EEOC’s decision. We 

therefore REAFFIRM our prior decision. See 5 U.S.C. § 7702(c)(2); 5 C.F.R.

§ 1201.162(a)(2). 

BACKGROUND

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

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

hours of sleep and which he claims precludes him from working the graveyard 

shift or performing substantial amounts of overtime, both essential functions of 

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

informally 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, and 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 alleged disability discrimination, arguing that the 

agency failed to reasonably accommodate his disability by not allowing him to 

work a stable schedule. Id., Tab 1. The appellant’s request for relief included, 

inter alia, a claim for compensatory damages. Id. at 2. 

¶4 In her initial decision affirming the agency’s action, the administrative 

judge sustained the charge. Id., Tab 28, Initial Decision (ID) at 8-9. In 
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addressing the appellant’s claim of disability discrimination, she found that he is 

disabled, ID at 10, but that he failed to 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. Finding that 

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

overtime, was a request to change the essential functions of his job, the 

administrative judge relied on Bouffard v. Department of Homeland Security, 

EEOC Appeal No. 0120065257, 2008 WL 276452 (E.E.O.C. Jan. 16, 2008) (the 

ability to work rotational shifts and overtime is an essential function of the CBPO 

position, and 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. The administrative judge found that 

no vacant position was available within the appellant’s commuting area and that 

he had not agreed to the agency’s offer of 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 at 23. She then 

found 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. 

¶5 On petition for review, the appellant argued that the administrative judge 

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

overtime are essential functions of his position and that his inability to perform 

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

Petition for Review File, Tab 5 at 13-29. The appellant also argued that the 

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

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

¶6 The Board upheld the administrative judge’s decision, finding that she 

properly determined that the appellant could not perform the essential functions 
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of a CBPO. Alvara v. Department of Homeland Security, 116 M.S.P.R. 627, 

¶¶ 7-13 (2011). The Board concurred with the EEOC’s determination in Bouffard 

that the ability to work rotational shifts and overtime were essential functions of 

the job, and that, because the appellant could not perform those functions with or 

without accommodation, he did not establish that he is a qualified individual with 

a disability. Id., ¶¶ 8-10. Based on this finding, the Board found it unnecessary 

to consider the next level of inquiry, namely, whether providing the appellant a 

modified work schedule would pose an undue hardship. Id., ¶ 14. 

¶7 The appellant filed a petition for EEOC review of the Board’s findings. 

See 5 U.S.C. § 7702(b)(1); 5 C.F.R. § 1201.157. The EEOC found that Bouffard

did not adhere to the EEOC’s Enforcement Guidance and precedential federal 

sector cases in its analysis of the essential functions of a CBPO, and that it was 

wrongly decided on that point. Alvara v. Department of Homeland Security, 

EEOC Petition No. 0320110053 at 6 of 12 (July 10, 2014). As such, the EEOC 

overturned that portion of Bouffard. Because the Board relied on Bouffard in 

finding that the essential functions of a CBPO include working rotational shifts 

and significant amounts of overtime, the EEOC found that the Board’s analysis 

was in error and that its decision constituted an incorrect interpretation of 

applicable policy directives and Enforcement Guidance, id., and it concluded that 

the appellant is qualified and can perform the fundamental job duties of a CBPO, 

id. at 7. Although the Board had not made a finding on undue hardship, the 

EEOC found that it could do so, given that the record was adequately developed. 

Id. The EEOC then found that the agency failed to show that modifying the 

appellant’s work schedule would cause undue hardship, and it concluded that the 

agency erred in denying the appellant’s reasonable accommodation request to 

work between the hours of 6:00 a.m. and midnight and in removing him. Id. at 8. 

The EEOC thus differed with the Board’s decision, which found no disability 

discrimination. Id. at 1. 
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ANALYSIS

¶8 The EEOC decision, to which we are asked to defer, is unreasonable both 

from a legal and a management/operational perspective. At its core, the EEOC 

decision fundamentally addresses not an interpretation of discrimination law, but 

rather an agency’s ability to determine the essential functions of any given 

position, in this case, a law enforcement officer position. 

¶9 To recapitulate, a unanimous Board held in Alvara v. Department of 

Homeland Security, 116 M.S.P.R. 627 (2011), that the ability to work the 

graveyard shift and significant overtime was an essential function of the CBPO 

position for purposes of the relevant disability discrimination regulation defining 

a qualified individual with disability.

¶10 We did so based on the well-reasoned decision of the EEOC in Bouffard v. 

Department of Homeland Security, EEOC Appeal No. 0120065257, 2008 WL 

276452 (E.E.O.C. Jan. 16, 2008), which held that the ability to work rotational 

shifts and overtime are essential functions of the position, and the 

accommodation of not having to work rotational shifts and overtime is, in 

essence, a request to change the essential functions of the job, which the agency 

is not required to do. 1 The EEOC has now determined that Bouffard, or at least 

the portion heavily relied upon by the Board in finding that “the essential 

functions of a Customs and Border Protection Officer include working rotating 

shifts and significant amounts of overtime,” was wrongly decided. Alvara, EEOC 

Petition No. 0320110053 at 6 of 12. 

 

1 Both the Board and the EEOC agree that, in order to reasonably accommodate an 

individual, the agency need not restructure a job to eliminate its essential functions. 

See Burch v. City of Nacogdoches, 174 F.3d 615. 621 (5th Cir. 1999) (the Americans 

with Disabilities Act “does not require an employer to relieve an employee of any 

essential functions of . . . her job, modify those duties, reassign existing employees to 

perform those jobs, or hire new employees to do so”); Johnson v. U.S. Postal Service, 

120 M.S.P.R. 87, ¶ 10 (2013); see also EEOC Enforcement Guidance: Reasonable 

Accommodation and Undue Hardship Under the Americans with Disabilities Act at 13, 

19. 
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¶11 More importantly, we based our decision on our knowledge of civil service 

law. Under the mixed case system governed by 5 U.S.C. § 7702, the Board 

generally must defer to the EEOC’s interpretation of discrimination law. E.g.,

Hooper v. Department of the Interior, 120 M.S.P.R. 658, ¶ 6 (2014); Wingate v. 

U.S. Postal Service, 118 M.S.P.R. 566, ¶ 7 (2012). Likewise, when the EEOC 

has reasonably interpreted a point of discrimination law, the Board cannot 

properly apply a different interpretation merely because the Board’s 

interpretation is also reasonable. Cf. Fulman v. United States, 434 U.S. 528, 

534-36 (1978) (a reasonable interpretation of a statute by the agency primarily 

charged with its administration is entitled to deference, even when there is a 

competing interpretation that is also reasonable). 

¶12 However, the Board need not defer to the EEOC’s interpretation of what 

constitutes a civil service law, rule, or regulation, the interpretation of which falls 

squarely within the purview of the Board’s area of expertise. 2

 Archerda v. 

Department of Defense, 2014 MSPB 49, ¶ 28 (citing Southerland v. Department 

of Defense, 119 M.S.P.R. 566, ¶ 20 (2013) (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)); Miller v. Department of the Army, 121 M.S.P.R. 

189, ¶ 13 n.4 (2014) (same). The relationship between the Board and the EEOC 

is reflected in the statutory due deference a Special Panel should give to the

respective expertise of the Board and the EEOC. 5 U.S.C. § 7702(d)(2)(B); see 

King v. Lynch, 21 F.3d 1084, 1088 (Fed. Cir. 1994) (the court distinguished

between discrimination laws and civil service laws by comparing

section 7702(b)(3)(B)(i), which references the discrimination laws set out in 

 

2 See generally Bain v. Office of Personnel Management, 978 F.2d 1227, 1231-32 (Fed. 

Cir. 1992) (because the court traditionally upholds an agency’s reasonable construction 

of a statute it administers, the court deferred to the Board’s affirmance of the Office of 

Personnel Management’s classification of petitioners as intermittent employees). 
7

subsection (a)(1)(B), with section 7702(c)(2), which references the “civil service 

laws, rules, regulations, and policy directives”). 

¶13 Under civil service law, CBPOs are classified as law enforcement officers.

They are charged with the safety and security of the American people, protecting 

the country’s borders from terrorism, intercepting the smuggling of humans, 

drugs and other contraband, preventing illegal migration and the entry of 

agricultural pests, and facilitating the flow of legitimate trade and travel. The 

special nature of these jobs is why law enforcement officers are treated 

differently from other civil servants in everything from essential functions to 

retirement calculations. See, e.g., 5 U.S.C. § 8331(2); 5 U.S.C. § 8401(17) 

(definitions of “law enforcement officer” for retirement purposes under the Civil 

Service Retirement System and the Federal Employees’ Retirement System, 

respectively); 5 U.S.C. § 3307 (providing that agencies may set a maximum age 

limit for an original appointment to law enforcement officer positions such 

as CBPOs). 

¶14 As with any law enforcement officer organization, exigent circumstances 

obviously will require the occasional performance of duties during the graveyard 

shift and/or during overtime. For every officer who cannot perform these 

essential functions, others will be required to meet these responsibilities. See, 

e.g., Silk v. City of Chicago, 194 F.3d 788, 796-97 (7th Cir. 1999) (coworkers 

were angry at a police officer who was allowed to work only day shift and light 

duty assignments due to severe sleep apnea, especially given that he also was able 

to work a night job teaching classes at a local university). 

¶15 The EEOC now asks us to second guess the employing agency in what is an 

essential function of this position. We refuse to do so. To that end, we note that 

the Americans with Disabilities Act does not define the term “essential 

functions.” Regulations interpreting the Act, however, provide that “essential 

functions” means “the fundamental job duties of the employment position the 

individual with a disability holds or desires,” as distinguished from “marginal 
8

functions.” 29 C.F.R. § 1630.2(n)(1). Determining whether a particular function 

is “essential” or not is generally a factual inquiry, reserved for the finder of fact 

on a case-by-case basis. Bartee v. Michelin North America, Inc., 374 F.3d 906, 

915 (10th Cir. 2004); Turner v. Hershey Chocolate U.S., 440 F.3d 604, 612 (3d

Cir. 2006). Absent evidence of discriminatory animus, the Board “generally 

give[s] substantial weight to the employer’s view of job requirements.” Ward v. 

Massachusetts Health Research Institute, Inc., 209 F.3d 29, 34 (1st Cir. 2000).

“In other words, [the Board’s] inquiry into essential functions ‘is not intended to 

second guess the employer or to require the employer to lower company 

standards.’” Mulloy v. Acushnet Co., 460 F.3d 141, 147 (1st Cir. 2006) (quoting

Mason v. Avaya Communications, Inc., 357 F.3d 1114, 1119 (10th Cir. 2004)).

¶16 The practice of second guessing also runs contrary to the EEOC’s recent 

case law suggesting that it is an agency’s ultimate responsibility to determine 

what an essential function of a job is. According to the EEOC, in ***, 

Complainant v. U.S. Postal Service, EEOC Appeal No. 0120080613, 2013 WL 

8338375 (Dec. 23, 2013): 

The essential functions are the duties of a job - i.e., the outcomes 

that must be achieved by the person in the position. Once an agency 

identifies the essential functions for a position, the agency can then 

put in place qualification standards, selection criteria, or employment 

tests that are designed to determine whether an employee or 

applicant can perform those essential functions. 

Id. (italics added). 

¶17 Based on the foregoing, we find no compelling reason to defer to the 

EEOC’s decision. See Garcia v. Department of Homeland Security, 437 F.3d 

1322, 1347 n.5 (Fed. Cir. 2006). Accordingly, we conclude that as a matter of 

law the EEOC decision is based upon an incorrect interpretation of civil service 

law, rule, or regulation. In the alternative, we find that the evidence in the record 

does not support the EEOC decision, and the EEOC decision is so unreasonable 

that it amounts to a violation of civil service law, rule, or regulation. Thus, the 
9

Board cannot agree with the EEOC decision. We therefore REAFFIRM our prior 

decision. See 5 U.S.C. § 7702(c)(2); 5 C.F.R. § 1201.162(a)(2). 

CERTIFICATION

¶18 Having found as a matter of law that the decision of the EEOC in this 

appeal constitutes an incorrect interpretation of civil service law, or in the 

alternative, that the evidence in the record does not support the EEOC decision or 

that the EEOC decision is so unreasonable that it amounts to a violation of civil 

service law, we hereby CERTIFY this case to the Special Panel under 5 U.S.C. 

§ 7702(d)(1). See Ignacio v. U.S. Postal Service, 30 M.S.P.R. 471, 477 (Spec. 

Pan. 1986).

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.