UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DALLAS REGIONAL OFFICE 

REYNALDO ALVARA,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

DA-0752-10-0223-I-1

DATE: December 1, 2010

Gary M. Gilbert, Esquire, Ari M. Wilkenfeld, 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

Anna M. Love

Administrative Judge

INITIAL DECISION

On January 26, 2010, Reynaldo Alvara filed an appeal from the decision of 

the Department of Homeland Security, United States Customs and Border 

Protection (CBP), which removed him from his Customs and Border Protection 

Officer (CBPO) position, effective January 7, 2010, for physical inability to meet 

the conditions of his employment due to a medical condition. The Board has 

jurisdiction over this timely filed appeal pursuant to 5 U.S.C. §§ 7511-7513. At 

the appellant’s request, a hearing was held.

Based on the following analysis and findings, the agency’s action is 

AFFIRMED. 
2

ANALYSIS AND FINDINGS

Background and undisputed facts 

Most of the facts in this case are not in dispute. See Appeal File (AF), 

Tab 21. 1

 From February 21, 2007 through January 7, 2010, the appellant held the 

position of CBPO, GS-1895-11, at the Port of El Paso, Texas.

2

 See AF, Tab 7b at 

80-88 (for the CBPO position description) and 89-102 (for the CBPO medical 

standards and physical requirements). According to the CBPO’s medical 

standards and physical requirements, a CBPO:

is a “frontline” uniformed border security weapon-carrying position. 

The primary function of the position is to detect and prevent 

terrorists and instruments of terror from entering the United States 

and to enforce customs, immigration and agriculture laws, while at 

the same time facilitating the orderly and efficient flow of legitimate 

trade and lawful travelers. . . . 

Due to the unique function of the job, the Officer may work extended 

or unscheduled hours including weekends and holidays and be 

required to rotate shifts, assignments and duty stations. . . . 

AF, Tab 7b at 89, 91 (emphasis added). The CBPO position description states 

that, one of the “Special Requirements” for the position is that the incumbent 

“[m]ust work on a shift and rotational basis and perform substantial amounts of 

overtime.” 3

 AF, Tab 7b at 84. 

 

1 The parties may stipulate to any matter of fact, and that stipulation satisfies the burden 

of proving that fact. 5 C.F.R. § 1201.63 (2010).

2 The Port of El Paso consists of four bridges that connect the U.S. with Mexico: 

Stanton Street Bridge, Bridge of the Americas (BOTA), Ysleta Bridge, and Paso Del 

Norte (PDN) Bridge. Hearing Compact Disk (HCD), AF, Tab 27 (William H. Molaski). 

3 Prior to sometime in 2009, CBPOs at the Port of El Paso were assigned to work one of 

five different shifts: 6:00 a.m. to 2:00 p.m., 8:00 a.m. to 4:00 p.m., 2:00 p.m. to 

10:00 p.m., 4:00 p.m. to 12:00 a.m. (midnight), and 12:00 a.m. (midnight) to 8:00 a.m. 

HCD (Michael John Brady). At the time of the hearing, Port of El Paso CBPOs were 

assigned to three shifts: 6:00 a.m. to 2:00 p.m., 2:00 p.m. to 10:00 p.m., and 10:00 p.m. 

to 6:00 a.m. Id. 
3

The appellant suffers from sleep apnea. See id. at 41-44. On February 15, 

2008, his physician opined that, due to his sleep apnea, the appellant could not 

work the graveyard shift. 4

 See id. at 41. On March 3, 2008, Acting Port Director 

Arthur Gonzales offered the appellant four options concerning his employment: 

return to full duty, request reasonable accommodation, apply for disability 

retirement, or resign. Id. at 38. On April 10, 2008, the appellant requested 

reasonable accommodation based on his sleep apnea.

5

 Id. at 30-31. In his 

request, he wrote the following in relevant part:

I am requesting that I not be assigned Mid-night Shift 2400-0800 due 

to the Fact that I have trouble Staying awake during the night shift. I 

am afraid that if I fall asleep During the shift I will stop breathing. I 

also have difficulty Driving after working a night shift.

Id. at 30 (capitalization, spacing and grammar as in the original). 6

The appellant submitted additional medical documentation, which reflected 

that he should not work the graveyard shift, he must use a Continuous Positive 

Airway Pressure (CPAP) machine while he sleeps for the rest of his life, and he 

should get at least eight hours of nocturnal sleep so that his performance during 

the day is not compromised. See id. at 22, 33. On July 21, 2008, Acting Equal 

Employment Opportunity (EEO) Manager Norma Martinez advised the Acting 

 

4 The 12:00 a.m. (midnight) to 8:00 a.m. shift is referred to as the graveyard shift. HCD 

(Brady). 

5 As a Federal employee, the appellant is covered by the Rehabilitation Act of 1973. 

However, the regulatory standards for the Americans with Disabilities Act (ADA) have 

been incorporated by reference into the Rehabilitation Act and the Board applies them 

to determine whether there has been a Rehabilitation Act violation. 29 U.S.C. § 791(g); 

Simpson v. U.S. Postal Service, 113 M.S.P.R. 346, ¶ 8 (2010). 

6 The appellant has also been diagnosed with Post Traumatic Stress Disorder (PTSD). 

AF, Tab 7b at 40. On June 20, 2008, the appellant informed Acting Equal Employment 

Opportunity Manager Norma Martinez that he also wanted to be reasonably 

accommodated because of his PTSD but, on July 18, 2008, he withdrew that request. 

See AF, Tab 7b at 3, 7, 29.
4

Port Director, William H. Molaski, 7 she had determined that the appellant had not 

shown he was disabled and, therefore, his request for a reasonable 

accommodation should be denied. Id. at 3-6. Thereafter, on August 9, 2008, 

Molaski denied the appellant’s request for reasonable accommodation. See AF, 

Tab 7a at 103-04. 

On September 29, 2008, Molaski recommended that a removal action be 

initiated against the appellant. Id. at 101. On January 5, 2009, Acting Port 

Director Norman A. Bebon proposed the appellant’s removal for physical 

inability to meet the conditions of his employment due to a medical condition.

8

 

Id. at 93-95. 

On January 30, 2009, the appellant again requested a reasonable 

accommodation. 9 Id. at 88-90. He asserted that his PTSD contributed directly to 

his sleep apnea, “which substantially limits the major life activity of sleeping.” 

Id. at 88. He stated that, with a reasonable accommodation, he would be able to 

perform all the essential functions of his CBPO position. Id. at 88. He further 

related the following in relevant part:

I, Reynaldo Alvara request that due to my disability and doctor’s 

restriction that I be afforded “at least 8 hours of nocturnal sleep,” the 

Agency modify my work hours to accommodate this restriction and 

my impairment. I would then be able to work regular hours and 

some overtime. This request entails I “be allowed at least two 

additional hours on each end” of the “8 hours for nocturnal sleep” to 

prepare daily for work, travel to work, travel home, and prepare to 

sleep. This modification could easily be accomplished through my 

 

7 Molaski was the Acting Port Director for the Port of El Paso from June 2008 until the 

early part of November 2008. He became the permanent Port Director on January 8, 

2009. HCD (Molaski). 

8 Bebon served as the Acting Port Director for the Port of El Paso for one or two weeks 

in January 2009. HCD (Bebon). 

9 The Americans with Disabilities Act Amendments Act of 2008, Pub. L. No. 110-325, 

122 Stat. 3553 (2008) (ADAAA) became effective on January 1, 2009.
5

being assigned to work daily shifts between the hours of 0600-1800 

hours or 0800-2000 hours or 1000-2200 hours. These suggested 

shifts coincide with existing shifts and still afford me the opportunity 

to obtain “8 hours of nocturnal sleep,” work, and even work some 

overtime without causing an undue hardship to the Agency. . . .

Id. at 89 (grammar and punctuation as in the original). In support of his request 

for reasonable accommodation, the appellant provided medical documentation 

that said he needed eight hours of nocturnal sleep and that his conditions of 

obstructive sleep apnea and sleeping disorders due to his PTSD are expected to 

last the rest of his life. See id. at 76-80. 

On February 10, 2009, the appellant responded both orally and in writing to 

the notice of proposed removal. See id. at 81-87. In his written reply, the 

appellant, through the National Treasury Employees Union (NTEU or the union),

reiterated his request that the agency modify his work hours. Id. at 83. He said 

that his requested job modification could be accomplished by assigning him 

permanently to work “daily shifts between the hours of 6 a.m.- 6 p.m. or 

8 a.m.- 8 p.m. or 10 a.m.-10 p.m. hours at any El Paso Field Office location.” Id.

at 83-84 (spacing as in the original). He also suggested that he could be 

reassigned to the “Bridge of the Americas Cargo Lot, [the] Dedicated Commuter 

Lane Enrollment Center, or the Dedicated Commuter Lane at Stanton Bridge.” 

Id. at 84. 

On March 24, 2009, Norma Martinez advised Molaski, who was the Port 

Director by then, that the appellant had shown he was disabled and she 

recommended that his request for an accommodation be approved. See id. at 

67-69. Martinez noted that the Job Accommodation Network (JAN) consultant 

had opined that the appellant’s medical restrictions precluded an accommodation 

in his current position and recommended that he be reassigned to another 

position. 10 Id. She stated that the agency must attempt to accommodate the 

 

10 JAN is a free consulting service provided by the Department of Labor’s Office of 

Disability Employment Policy. AF, Tab 7a at 69, n.4. JAN provides individualized 
6

appellant “by reassigning him to a vacant-funded position for which he is 

qualified to perform with or without reasonable accommodation.” Id. Martinez 

said a local job search would be performed to identify vacant, funded positions in 

the local commuting area and, if no such positions were identified, the appellant 

would be asked whether he wished the job search to be extended to other 

geographical areas. Id. 

On April 8, 2009, Molaski informed the appellant that the agency had 

approved his January 30, 2009 request for reasonable accommodation. See id. at 

64-66. Molaski noted, however, that the appellant’s CBPO position required him 

to work rotating shifts as well as to perform substantial amounts of overtime and, 

therefore, the agency could not approve the accommodation he was seeking. Id.

at 65. Rather, because his medical conditions precluded him from performing the 

essential functions of his CBPO position, either with or without accommodation, 

the agency would attempt to accommodate him by reassigning him to a vacant 

funded position. Id. Molaski advised the appellant that the agency would 

conduct a job search in the local commuting area and, if no job was found, he 

would be asked if he wanted the agency to extend the search. Id. The appellant 

was instructed to submit updated information regarding his qualifications to 

Mission Support Specialist Janice Lybarger. 11 Id. 

On April 27, 2009, the appellant asked Molaski to reconsider his request 

for accommodation in his current CBPO position. See id. at 62-63. On 

May 28, 2009, Molaski informed the appellant that the agency would not modify 

his current position’s schedule and work assignments to “specific special 

assignments.” Id. at 59-61. On or about July 28, 2009, Molaski advised the 

 

worksite accommodation solutions and technical assistance regarding the ADA and 

other disability related legislation. Id. 

11 See AF, Tab 7a at 54-58 for the appellant’s updated Optional Application for Federal 

Employment, OF-612.
7

appellant that no vacant, funded positions for which he qualified had been found 

in the local commuting area. Id. at 45. Molaski asked the appellant for 

permission to expand the job search for a vacant, funded position outside of the 

local commuting area. Id. The appellant denied the agency’s request to expand 

the search outside the local commuting area. See id. at 42. On September 1, 

2009, Molaski informed the appellant that the agency had discontinued 

processing his request for a reasonable accommodation. Id. 

In a letter dated January 5, 2010, Ana Hinojosa, the Director of Field 

Operations for the El Paso Field Office,

12 advised the appellant that she had 

decided to remove him from his CBPO position due to “physical inability to meet 

condition of employment due to a medical condition.” Id. at 39-41. Hinojosa 

informed the appellant that his removal would be effective upon receipt of the 

letter. Id. The appellant received a copy of Hinojosa’s letter on January 7, 2010. 

Id. at 41. His removal was effective on January 7, 2010. Id. at 38. 

The appellant filed the instant appeal. AF, Tab 1. He asserted that the 

agency discriminated against him when it failed to accommodate his disability. 

See AF, Tabs 20-21. The appellant also claimed that, in removing him, the 

agency retaliated against him for engaging in protected EEO activity when he 

requested accommodation. Id. 

Burdens of Proof

The agency has the burden to prove the merits of its case by preponderant 

evidence. 5 C.F.R. § 1201.56(a)(1) (2010). Preponderant evidence is that degree 

of relevant evidence that a reasonable person, considering the record as a whole, 

would accept as sufficient to find that a contested fact is more likely to be true 

than untrue. 5 C.F.R. § 1201.56(c)(2) (2010). In addition, the agency must show 

that the penalty it selected was within the bounds of reasonableness and promotes 

 

12 The El Paso Field Office encompasses El Paso, New Mexico, and parts of West Texas 

including Fort Hancock, Fabens and Presidio. HCD (Hinojosa). 
8

the efficiency of the service. See Douglas v. Veterans Administration, 5 M.S.P.R. 

280, 302 (1981). The appellant has the burden to prove his affirmative defenses 

by preponderant evidence. 5 C.F.R. § 1201.56(a)(2) (2010). 

The agency has shown that the appellant is physically unable to meet the 

conditions of his employment due to a medical condition.

A charge of inability to perform job duties is equivalent to a charge of 

medical incapacity, and it requires medical evidence showing that the employee is 

incapacitated for particular job duties due to a medical condition. Ellshoff v. 

Department of the Interior, 76 M.S.P.R. 54, 68-69 (1997). In a removal action 

for physical inability to perform, the Board must determine whether the employee 

was able to perform the functions of his position, and whether the agency 

considered accommodation. See Schoening v. Department of Transportation, 

34 M.S.P.R. 556, 561 (1987); D’Leo v. Department of the Navy, 53 M.S.P.R. 44, 

51 (1992). 

According to the medical standards and physical requirements, as well as 

the position description for a CBPO, the appellant was expected to work extended 

or unscheduled hours including weekends and holidays; was required to rotate 

shifts, assignments and duty stations; and was obliged to perform substantial 

amounts of overtime. See AF, Tab 7b at 84, 89, 91. Based on the medical 

evidence contained in the record as well as the undisputed facts, including the 

parties’ stipulations, I find that the appellant was unable due to his and sleep 

apnea 13 to work rotating shifts, specifically the graveyard shift. The parties 

stipulated during the hearing that no one is exempt from working the graveyard 

shift. HCD (Brady). I also find that the appellant was unable to work all of the 

overtime to which he might have been assigned. Accordingly, I find that the 

agency has proven by preponderant evidence that the appellant was physically 

 

13 The appellant claimed that his PTSD contributed directly to his sleep apnea. AF, 

Tab 7a at 88.
9

unable to meet the conditions of his employment due to a medical condition. 

Moreover, as will be discussed in detail below concerning the appellant’s 

disability discrimination defense, I find that the agency considered 

accommodation. See Schoening, 34 M.S.P.R. at 561; D’Leo, 53 M.S.P.R. at 51. 

Therefore, the agency’s charge is sustained. 

The appellant did not establish that the agency discriminated against him by 

failing to accommodate his disability. 

A removal action is unlawful if it is based on a prohibited personnel 

practice, including a violation of the Rehabilitation Act. 14 5 U.S.C. 

§ 7701(c)(2)(B); 5 U.S.C. § 2302; Lloyd v Small Business Administration, 

96 M.S.P.R. 518, ¶ 6, review dismissed, 110 F. App’x 127 (Fed. Cir. 2004). The 

appellant asserted that the agency discriminated against him by failing to 

accommodate his disability. To meet his burden of proof regarding this 

affirmative defense, the appellant must establish not only that he has a disability 

but he must also show that he was a qualified individual with a disability. In 

addition, the appellant 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. See

Combs v. Social Security Administration, 91 M.S.P.R. 148, 159 (2002). After the 

appellant has established a prima facie case of disability discrimination based on 

failure to accommodate, the burden shifts to the agency to demonstrate that 

reasonable accommodation would impose an undue hardship on its operations. If 

the agency meets its burden, the burden shifts back to the appellant to show that 

the agency’s reasons are a pretext for discrimination. Ultimately, the appellant 

has the burden of proving by preponderant evidence that he was denied 

 

14 As was discussed above, supra note 5, the regulatory standards for the ADA have 

been incorporated by reference into the Rehabilitation Act and the Board applies them

to determine whether there has been a Rehabilitation Act violation. 29 U.S.C. § 791(g); 

Simpson, 113 M.S.P.R. 346, ¶ 8. 
10

reasonable accommodation and, therefore, his removal was unlawful. See 

Simpson v. U.S. Postal Service, 113 M.S.P.R. 346, ¶ 16 (2010). An agency’s 

failure to reasonably accommodate a qualified disabled person constitutes 

disability discrimination. See Trammell v. Department of Veterans Affairs, 

60 M.S.P.R. 79, 85 (1993). 

Pursuant to the ADA, a disability means, with respect to an individual, a 

physical or mental impairment that substantially limits one or more major life 

activities; a record of such an impairment; or being regarded as having such an 

impairment. 42 U.S.C. § 12102(1)(A), 29 C.F.R. § 1630.2(g) (2010). The 

ADAAA, which became effective on January 1, 2009, did not change the 

definition of disability but it did express Congress’ intent to construe the 

definition in favor of broad coverage. P.L. 110-325, § 2(a)(7), (a)(8), codified at 

42 U.S.C. § 12101 Note. Here, the parties stipulated that the appellant satisfies 

the definition of a person with a disability. Moreover, after reviewing the record 

in its entirety, I find that the appellant has an impairment that substantially limits 

the major life activity of sleeping. 15 Hence, I find the appellant has met his 

burden of proving he has a disability. 

The ADAAA also did not change the statutory provision regarding 

reasonable accommodation. P.L. 110-325, § 6(h); Simpson, 113 M.S.P.R. 346, 

¶ 13. An agency must provide reasonable accommodation to the known 

limitations of a qualified individual with a disability unless to do so would create 

an undue hardship. 42 U.S.C. §§ 12112(a), (b)(5)(A); 29 C.F.R. § 1630.9; 

Simpson, 113 M.S.P.R. 346, ¶ 13. A qualified individual with a disability is a 

person with the skills, experience, education and other job-related requirements 

of the employment position such individual holds and who, with or without 

reasonable accommodation, can perform the essential functions of such position. 

 

15 The ADAAA added sleeping to the list of major life activities. See P.L. 110-325, 

§ 4(a), codified at 42 U.S.C. § 12102(2)(A). 
11

42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m) (2010); Simpson, 113 M.S.P.R. 346, 

¶ 13. Reasonable accommodation may entail modifications to the person’s 

current position or reassignment to a vacant position. 42 U.S.C. § 12111(9); 

29 C.F.R. § 1630.2(o) (2010); Simpson, 113 M.S.P.R. 346, ¶ 13. 

Here, the appellant has consistently asked that his disability be 

accommodated by allowing him to modify his CBPO work schedule so that he 

can get “at least 8 hours of nocturnal sleep.” He requested not to be assigned to 

the graveyard shift and that he only work a limited amount of overtime. The 

appellant did not testify at the hearing. 

Michael John Brady, CBP Chief Officer for the Port of El Paso, testified at 

the hearing that the Port of El Paso is a 24-hour, seven-day per week, operation. 

He related that, in order to run the Port, CBPOs are assigned to work around-theclock shifts. He said CBPOs change shifts every two weeks/pay period and that 

they are permitted to “swap” shifts. Brady noted that one of the shifts to which 

CBPOs are assigned is the graveyard shift. He indicated that shift assignments 

are made using the “base minimum” number of CBPOs expected to be needed on 

each shift. However, because CBPOs may be absent due to training, leave, or 

because of an emergency or unexpected need, additional CBPOs will be assigned 

to work overtime to meet the needs of the agency on any shift, including the 

graveyard shift. He added that CBPOs are often ordered to come back to work 

overtime even after they have gone home. HCD. 

Brady testified that working overtime is a “condition of employment” and,

in order for the agency to fulfill its mission, all CBPOs are expected to be 

available to work every shift and assignment, all the time. Brady explained that 

overtime is assigned starting with the first job going to the lowest earner, and so 

forth. He indicated that two to three times per pay period, a CBPO will be 

ordered to work overtime and that frequently CBPOs are ordered to work “on a 

double,” that is, 16 straight hours including eight hours of overtime. He stated 

that, if the appellant was only able to work two hours of overtime per shift, but a 
12

CBPO was needed for longer than two hours, the agency would have to call 

someone else in to replace the appellant. HCD. 

Brady pointed out that CBPOs are subject to a $35,000.00 annual overtime 

pay cap and, therefore, Congress requires the agency to make assignments in the 

most cost effective manner possible. Brady said that 25% of CBPOs reach the 

overtime cap and that the rest of them finish close to the cap. He related that, 

since he started with the agency in 1976, he has never seen a CBPO permanently 

exempted from working overtime or the graveyard shift. He added that he has 

seen it happen on a temporary basis but that was only when there was a 

reasonable expectation that the CBPO would eventually return to full duty. 

Brady opined that, if a CBPO was exempt from working overtime and the 

graveyard shift, the morale of the other CBPOs would be affected since they 

would have to “pick up the slack.” Brady noted that, if the appellant was not 

required to work the graveyard shift, a lot more CBPOs would have to be ordered 

to work overtime to fill the void. He said this would hurt the agency’s mission

since the agency can neither exceed its budget nor reduce services to the public. 

HCD. 

Brady testified that, if a CBPO is unable to work a particular overtime 

assignment, another CBPO will have to be assigned to work it. Brady opined that 

CBPO morale would be “destroyed” if some CBPOs were not required to work 

overtime. He said he receives complaints all the time from CBPOs about other 

CBPOs who are not working overtime because, for example, they are on light 

duty. He emphasized that working overtime is an essential function of a CBPO’s 

job and that CBPOs perceive it as unfair and resent it when they have to work 

more overtime than they think they should because someone else is not working. 

Brady related that, if all CBPOs were not required to work overtime, it would 

impair the agency’s ability to fulfill its duty to the nation, which includes 

managing its funds. HCD.
13

Molaski testified that there are approximately 640 to 650 non-supervisory 

CBPOs assigned to the Port of El Paso. Molaski remembered that, in June or July 

2008, the new Director of Field Operations, Ana Hinojosa, held a meeting where 

she expressed concern that so many CBPOs were on light duty. He said there 

were 90 CBPOs on light duty at that time. He indicated that this represented a 

significant number of employees who were unavailable to work. He opined that 

morale can be affected when so many officers are not capable of working the full 

range of duties because the work does not stop and, therefore, they have to back 

fill for the unavailable CBPOs, including assigning CBPOs to work more 

overtime. HCD. 

Molaski recalled that Hinojosa wanted to come up with a system to deal 

with and track the CBPOs who were on light duty. He said she assigned a person 

to monitor the light-duty situation and to report back to her. He indicated that 

they attempted to reduce the number of CBPOs on light duty by creating a matrix; 

tracking reporting requirements; and monitoring doctors’ notes. He testified that 

their goal was to make sure that CBPOs on light duty would not be forgotten. 

Molaski added that, to ensure they were properly accommodating the CBPOs on 

light duty, they requested doctors’ notes regarding each person’s restrictions. He 

remembered that, because CBPOs on light duty were not allowed to perform the 

full range CBPO duties, management attempted to find “non-officer” functions 

for each of them to perform until the matter was resolved. Molaski said EEO 

would identify whether the person had a disability and, if so, EEO would conduct 

a job search. He noted, however, that each CBPO’s situation was handled on a 

case-by-case basis. Molaski indicated that CBPOs with permanent restrictions 

that impinged on their ability to perform their CBPO duties were treated 

differently than those with temporary restrictions. He related that the decision 

whether a CBPO’s condition was permanent, and required accommodation, was 

made by the Port Director in conjunction with EEO after considering the 

limitations described by the person’s physician. HCD. 
14

Molaski recalled that he recommended that the agency propose the 

appellant’s removal because the appellant’s physician’s medical evaluation 

indicated that his condition was permanent and did not allow him to perform all 

the required functions of his position. He explained that due to the appellant’s 

sleep apnea and PTSD, he was permanently limited in the number of hours he 

could work each day and he also could not work the midnight shift. Molaski 

pointed out that, when he recommended that they propose the appellant’s 

removal, the appellant was on a light-duty status. HCD. 

Molaski remembered that the appellant requested to be accommodated by 

only working specific day shifts with limited overtime. He testified that he 

forwarded the appellant’s accommodation request to Martinez, the EEO Manager, 

and that he and Martinez discussed the appellant’s situation several times. He 

indicated that he also discussed what the essential functions of the job were with 

Labor and Employee Relations employees, Jeff Clay and Irene Ramirez. Molaski 

said they concluded that the appellant had a disability that would not allow him to 

work “24/7,” and that he could not be accommodated in his CBPO position. He 

explained that CBPOs are required to work shifts and unpredictable overtime and 

that these are essential functions of the position. Molaski opined that, if they 

granted the appellant his requested accommodation, it would affect the 

operational or mission requirements of the agency. He emphasized that it could 

also affect services and be detrimental to security because more work would be 

placed on the other CBPOs. He stated that, because the Port of El Paso is a 

“24/7” operation, all CBPOs must be available for all functions all the time. He 

indicated that, if one CBPO is put on a set schedule, it would impact how the 

other CBPOs are scheduled and, therefore, could also affect CBPO morale. HCD.

Molaski testified that no CBPOs in the El Paso Field Office are 

permanently exempt from working the graveyard shift or overtime and, to his 

knowledge, none are permanently exempt from the graveyard shift or overtime in 

Arizona, Miami, California, or at John F. Kennedy Airport in New York. He 
15

added that, although there are some CBPO assignments at the commercial cargo 

facilities in El Paso that are not “24/7,” those assignments last for only one year 

and then the CBPOs all bid again. Moreover, Molaski said there is no such thing 

as permanent light duty. HCD. 

On cross-examination, Molaski acknowledged that CBPOs are freely able 

to “swap” shifts and that he did not know how often they could do that. He said 

he would not know if a CBPO always swapped off of the graveyard shift and he 

added that this would not affect the agency’s mission or national security. 

Molaski conceded that, “from time to time,” some CBPOs are excused from 

working the graveyard shift. He agreed that a CBPO who is breast feeding may

be excused from working the graveyard shift for possibly two years and that this 

would not compromise the agency’s mission or national security. Molaski also 

acknowledged that a female CBPO who was pregnant and then breast fed her 

child could, with proper documentation, be excused from working the graveyard 

shift for years and this would not impact national security or the agency’s 

mission. Molaski further conceded that a CBPO could be temporarily excused 

from working the graveyard shift for “personal convenience,” such as to care for 

a sick family member. He indicated that, to his knowledge, the agency does not 

have a written policy regarding the maximum amount of time a person can be 

excused from the graveyard shift and that it was left to his discretion as the Port 

Director. Moreover, Molaski related that he was unaware of any studies that 

showed that CBPOs would leave in droves if other CBPOs were exempt from 

working the graveyard shift. HCD. 

Molaski testified that he ultimately made the decision that the appellant 

could not be accommodated and that he told Martinez this. He said he 

“misspoke” during his deposition when he said he was not involved in that 

process. 16 He related that, prior to his deposition, did not even know what the 

 

16 See AF, Tab 20, Exhibit C, page 21. 
16

ADA was. Molaski indicated that, in making the decision that the appellant could 

not be accommodated, he did not consider the number of CBPOs who were 

available to perform the same tasks. He further acknowledged that he did not 

consider asking the other CBPOs if anyone wanted to volunteer to swap shifts 

with the appellant and he added that it would not have been a burden to do so. 

He also conceded that there is nothing in the CBPO position description that says 

CBPOs must be available “24/7.” In addition, he agreed that there was nothing in 

the collective bargaining agreement that would affect his ability to exempt the 

appellant from working the graveyard shift. HCD. 

Norman A. Bebon testified that he was the Acting Port Director for several 

weeks in January 2009, and that he proposed the appellant’s removal because the 

appellant was unable to work all of the required shifts and overtime. Bebon 

opined that CBPOs must be available to work all shifts, assignments and 

overtime. He said he could not recall a CBPO who was permanently exempt from 

working overtime or the graveyard shift but he added that he had seen it happen 

for short periods of time. HCD. 

Janice Lybarger testified that she works as a Mission Support Specialist

and that, from July 2008 through August 2009, she was on detail to the Light 

Duty/Limited Duty Program. She recalled that, when the appellant requested a 

reasonable accommodation, she was involved in the job search process. She 

indicated that, when the appellant was approved for a reasonable accommodation, 

he was told to submit an updated OF-612 or a resume to be used during the search 

process. Lybarger recalled that the appellant submitted a new OF-612, 17 and that 

she forwarded it to the Minneapolis Hiring Center for them to conduct the job 

search. She stated that the Minneapolis Hiring Center subsequently advised her 

via email that there were no vacant positions for the appellant in the El Paso area. 

Lybarger said she personally verified that all of the CBP entities in El Paso were 

 

17 See AF, Tab 7a at 54-58.
17

checked and, thereafter, she prepared the letter for Molaski that indicated there 

were no vacancies. 18 She recalled that they asked the appellant in that letter if he 

wanted them to expand the search to other areas and gave him a deadline to do so. 

She said they advised the appellant that, if he did not respond by the deadline, 

they would assume he was not interested in an expanded search beyond the local 

commuting area. HCD. 

Lybarger testified that, during her detail, she placed eight to ten CBPOs in 

alternate positions. Specifically she recalled that, at about the same time they 

conducted the job search for the appellant, they got a negative search result for 

another CBPO. She added that, at that CBPO’s request, an expanded job search 

was conducted and a job was found for him in Dallas. Lybarger conceded that 

transfer to another position was an accommodation of last resort. She related that 

she has never seen a CBPO permanently exempted from overtime or the 

graveyard shift but that CBPOs on light duty had been temporarily exempted. 

HCD. 

Norma Martinez testified that she is currently employed by CBP as the 

Diversity and Civil Rights (DCR) Officer and when managers say they contacted 

“EEO,” they are talking about her. Martinez explained that the DCR Officer 

works for “Headquarters” and, therefore, is not physically located in the Field 

Office. She said her relationship with the “field” is that she gives advice, does 

counseling, and provides training. She indicated that in 2008, she was the Acting 

EEO Manager and was responsible for “emphasis programs,” handling reasonable 

accommodation requests, and collecting data. HCD. 

Martinez recalled that in late January 2009, she received a request from the 

appellant to reasonably accommodate his PTSD19 and sleep apnea by placing him 

 

18 See AF, Tab 7a at 45. 

19 The appellant asserted that his PTSD contributed directly to his sleep apnea. AF, 

Tab 7a at 88.
18

on a set schedule working 12-hour shifts and/or by assigning him to a specific 

work location. 20 She related that, as part of the “interactive dialogue,” she gave 

the appellant a copy of his position description along with a letter for his doctor 

that contained various questions that needed to be answered. 21 She stated that, 

after reviewing the appellant’s doctor’s answers, she concluded that the appellant 

had a disability. Martinez said she discussed the matter with Molaski and that 

Molaski indicated that the appellant could not be accommodated by assigning him 

to a specific shift or location because CBPOs are required to work rotating shifts

and assignments. She added that Molaski opined that to accommodate the 

appellant as requested would be detrimental to the operational and mission 

requirements of the agency as well as national security. 22 HCD. 

Martinez testified that, per the CBPO position description, the core/main 

duties of a CBPO require availability for shift work and substantial amounts of 

overtime. She explained that, because the appellant could not work the graveyard 

shift or extended overtime, he was not “qualified” to be accommodated in his 

CBPO position since he could not perform the essential functions of that position 

with or without accommodation. She, therefore, determined that he could only be 

accommodated by reassigning him from his CBPO position. Martinez further 

related that she contacted JAN concerning the appellant and that the JAN 

technical advisor also recommended that the agency reasonably accommodate the 

appellant by finding him another job. HCD. 

Martinez conceded that neither she nor anyone else from her office 

conducted an “undue hardship” analysis concerning the appellant and she did not 

take into account how many other CBPOs were available to perform the functions 

 

20 See AF, Tab 7a at 88-90.

21 See AF, Tab 7a at 78-80.

22 See AF, Tab 7a at 74-75.
19

the appellant could not. She acknowledged that she did not know how one 

employee not working the graveyard shift affected national security but she added 

that she left that up to Molaski. Martinez indicated that, other than not being able 

to work the graveyard shift and substantial amounts of overtime, 23 she was 

unaware of any other criticism regarding the appellant’s performance. She said 

she knew that the appellant was on light duty for approximately nine months and 

that, during that time, he was not required to work the graveyard shift. She 

acknowledged that she did not check to see whether national security was 

affected during those nine months. HCD.

Hinojosa testified that, when she became the Director of Field Operations 

for the El Paso Field Office in May 2008, the Field Office was in “a bit of 

turmoil.” She said she wanted to ensure that they were properly using their 

employees. She discovered that there were a large number of employees on light 

duty and the process they were using to manage those employees was not 

consistent. Hinojosa said she was concerned because a large of number of those 

employees had been on light duty for a very long time and management had not 

been following up on the employees’ progress. She further related that 

management also was not getting medically acceptable evidence from the 

employees. She added that, if an employee was never going to be able to return 

to full duty, then they needed to be reassigned and/or transferred. Hinojosa 

indicated that she changed the way the Field Office handled light duty. HCD. 

Hinojosa testified that, as the deciding official in the appellant’s case, she 

was aware that he requested accommodation by not being required to work the 

graveyard shift and extended overtime. She said it was not feasible to grant the 

appellant’s requested accommodation because it was a condition of employment 

that a CBPO work varying shifts and overtime in all sorts of inclement 

 

23 She recalled that the appellant said he could work 12-hour shifts but he did not want 

to have to work a 16-hour shift. HCD. 
20

conditions. She noted that those requirements went into the process of 

classifying and grading the CBPO position. Hinojosa opined that to grant the 

appellant’s accommodation would impose a significant burden on the agency; 

undermine the position itself; and impact every other officer’s classification. She 

added that, if those were not conditions of employment for a CBPO, the agency 

could not do its job. HCD. 

Hinojosa explained that it is an essential function of the CBPO position 

that the officer be able to work varying shifts and any overtime that the agency 

needs him to work. She testified that most ports of entry are “24/7” operations 

and that, to accomplish the agency’s mission, they have to be able to staff and 

schedule employees so that CBPOs are available to work all shifts at all border 

crossings. She indicated that CBPOs can be ordered to work overtime because of 

an unexpected increase in volume in border crossings; an increased number of 

enforcement actions; and employee absences. She opined that a permanent 

exemption from those essential functions would have a negative impact on the 

agency. She noted that employees can take leave and trade shifts but that 

controls were in place so that the agency can still accomplish its mission. 

Hinojosa recalled a union-hall meeting where the union expressed concern that 

some employees were being granted exemptions from working overtime and that 

other employees were being required to work overtime in their place. She opined 

that to grant the appellant’s requested accommodation would affect employee 

morale as well as the agency’s effectiveness. Hinojosa stated that, if the agency 

had to reduce the level of work because of a lack of manpower, the agency would 

not be able to accomplish its mission. HCD.

Hinojosa testified that the collective bargaining agreement imposes limits 

on how much overtime each employee can be ordered to work. She explained 

that, because there were not enough volunteers to work overtime, they needed to 

ensure that employees get some rest before having to come back to work again. 

Hinojosa stated that the appellant’s requested accommodation would circumvent 
21

the collective bargaining agreement since every other CBPO was subject to its 

provisions. On cross-examination Hinojosa conceded that she did not specifically 

mention the collective bargaining agreement in her decision letter because it was 

an “implied concept.” She also acknowledged that she did not mention it during 

her deposition. 24 Hinojosa added that she believed that the union would like the 

agency to modify a number of conditions of employment for CBPOs including 

overtime issues. HCD. 

Hinojosa related that she was unaware of any other CBPO anywhere in the 

agency who had been granted a permanent accommodation similar to the one 

requested by the appellant. She added that there was no such thing as permanent 

light duty. When Hinojosa was told what Molaski had testified concerning the 

breast-feeding CBPO, she said she disagreed with Molaski’s testimony. She 

indicated that pregnant CBPOs are placed on light duty until they deliver and may 

also remain on light duty for a short time after that. Hinojosa noted that women 

breast feed 24 hours a day and, therefore, she would not grant a blanket 

exemption from working the graveyard shift for a breast-feeding CBPO. She 

added, however, that, with proper medical documentation showing an expected 

end date, she might grant an exemption for a limited period of time. HCD. 

Hinojosa testified that any accommodation request is addressed on a caseby-case basis in light of the medical documentation provided. She said that every 

accommodation request is looked at individually and that in each case the agency 

considers how the request will affect its overall mission. Hinojosa related that 

temporary exemptions from working the graveyard shift are granted and she 

conceded that the agency “survives” when they are granted. She explained that 

the overtime assignment methodology allows for temporary exclusions from 

working overtime but there is always the expectation that the employee will 

return to working overtime and will have to make up the overtime he did not 

 

24 See AF, Tab 20, Exhibit A at 31-33. 
22

work. She noted that the lowest earners are the first to be assigned overtime. 

Hinojosa conceded that the appellant suggested that he be assigned to 12-hour 

shifts with overtime during the first and last two hours of each shift. She noted, 

however, that the appellant was assuming that overtime would always be needed 

during his suggested hours and that would not always be so. 

After considering the record in its entirety, I find that all of the witnesses 

testified that working rotating shifts and significant amounts of overtime were 

essential functions of the CBPO position. In addition, both the CBPO’s medical 

standards and physical requirements and the CBPO position description provide 

that CBPOs work rotating shifts and the position description clearly states that 

CBPOs perform substantial amounts of overtime. See AF, Tab 7b at 84, 89, 91. 

Moreover, the Equal Employment Opportunity Commission (EEOC) held in 

Bouffard v. Michael Chertoff, Secretary, Department of Homeland Security (U.S. 

Customs and Border Protection), EEOC Appeal # 0120065257 (Jan. 16, 2008), 

that the ability to work rotational shifts and overtime was an essential function of 

the CBPO position. Accordingly, I find that the ability to work rotational shifts 

and overtime was an essential function of the appellant’s CBPO position

Here, it is undisputed that the appellant could not work rotating shifts and 

unlimited overtime. I find that the accommodation the appellant requested, 

namely not having to work rotational shifts and overtime, is in essence a request 

to change the essential functions of his job as a form of reasonable 

accommodation. I find, therefore, that the appellant was not a qualified 

individual with a disability because he could not perform the essential functions 

of his CBPO position with or without accommodation. 25 

 

25 Although I need not reach the issue of whether providing the appellant’s requested 

accommodation would impose an undue hardship on the agency, in Cyr v. Michael 

Chertoff, Secretary, Department of Homeland Security, EEOC Appeal # 01A43015 

(July 13, 2005), the EEOC found that providing a permanent day shift to an 

Immigration Inspector would impose an undue hardship on the agency. 
23

That said, the reasonable accommodation of reassignment to a vacant 

funded position is an accommodation of last resort. Here, it is unquestioned that 

the agency conducted a search for a vacant funded position in the El Paso 

commuting area and that no vacancies were found. It is also undisputed that the 

agency asked the appellant if he wanted the job search to be extended outside of 

El Paso and that he did not agree to an expanded search. The appellant has the 

evidentiary burden to establish that it more likely than not there were vacancies 

to which he could have been assigned. The appellant failed to tender any 

evidence to that effect. Thus, I find that the appellant has failed to identify any 

reasonable accommodation that would have allowed him to continue working for 

the agency. Accordingly, the appellant has not shown that the agency engaged in 

disability discrimination and, therefore, this affirmative defense must be denied. 

The appellant did not establish that the agency retaliated against him for engaging 

in protected EEO activity. 

To establish a prima facie case of retaliation for engaging in protected 

activity, the appellant must show that: (a) he engaged in protected activity; 

(b) the accused official(s) knew of the protected activity; (c) the adverse 

employment action under review could, under the circumstances, have been 

retaliation; and (d) there was a genuine nexus between the protected activity and 

the adverse employment action. See Warren v. Department of the Army, 804 F.2d 

654, 656-58 (Fed. Cir. 1986); Cloonan v. U.S. Postal Service, 65 M.S.P.R. 1, 4 

(1994). To establish a genuine nexus between the protected activity and the 

adverse employment action, the appellant must prove that the employment action 

was taken because of the protected activity. Cloonan, 65 M.S.P.R. at 4, n.3. If 

the appellant meets this burden, the agency must show that it would have taken 

the action even absent the protected activity. See Rockwell v. Department of 

Commerce, 39 M.S.P.R. 217, 222 (1989).

Here, the appellant asserted that the agency retaliated against him because 

he requested an accommodation. Assuming arguendo that this was protected 
24

activity, that the proposing and deciding officials knew about his protected 

activity, and that his removal could, under the circumstances, have been 

retaliation, the appellant must also prove that there was a genuine nexus between 

the removal and his request for an accommodation. The appellant has failed to 

present any evidence to show that his removal was taken because he requested an 

accommodation. His mere assertion that his removal was taken in retaliation for 

his protected EEO activity is insufficient to constitute a prima facie case. See 

Romerov. Equal Employment Opportunity Commission, 55 M.S.P.R. 527, 539 

(1992), aff’d, 22 F.3d 1104 (Fed. Cir. 1994) (Table). 

Moreover, as with most appeals of adverse actions taken under 5 U.S.C. 

Chapter 75, such as in the instant case, the agency has articulated a 

nondiscriminatory reason for its action, i.e., the appellant’s physical inability to 

meet the conditions of his employment due to a medical condition. Accordingly, 

I find that the agency has done everything that would be required of it if the 

appellant had made out a prima facie case of retaliation. See Marshall v. 

Department of Veterans Affairs, 111 M.S.P.R. 5, ¶ 16 (2008). I find, however, 

that the appellant has not met his overall burden of proving illegal retaliation. 

See id. He failed to produce sufficient evidence to show that the agency’s 

proffered reason was not the actual reason for his removal and that the agency 

intentionally retaliated against him. See St. Mary’s Honor Center v. Hicks,

509 U.S. 502, 507-08, (1993); Marshall, 111 M.S.P.R. 5, ¶ 17. Therefore, this 

affirmative defense must fail. 

Efficiency of the service

An agency may take a disciplinary action only for such cause as to promote 

the efficiency of the service. 5 U.S.C. § 7512. The efficiency of the service is the 

ultimate criterion for determining whether any disciplinary action is warranted 

and whether the particular sanction may be sustained. Street v. Department of the 

Army, 23 M.S.P.R. 335, 342 (1984). Where an appellant was unable to perform 

the duties of his position because of a physical disability, the Board has found 
25

that the appellant’s removal promoted the efficiency of the service because a 

clear and direct relationship existed between the grounds for the action and the 

appellant’s ability to accomplish his duties satisfactorily. Marshall-Carter v. 

Department of Veterans Affairs, 94 M.S.P.R. 518 (2003), aff’d, 122 F. App’x 513 

(Fed. Cir. 2005); Woodhouse v. U.S. Postal Service, 29 M.S.P.R. 98, 100 (1985). 

In this case, I find the appellant is not able to perform the duties of a CBPO. 

Thus, I find that the agency’s action promotes the efficiency of the service. 

The penalty is reasonable.

The final matter that I must determine is the reasonableness of the penalty. 

The agency must show that the removal penalty was appropriate and reasonable 

under the circumstances. In this regard, the Board will review the penalty to 

determine whether it is clearly excessive, disproportionate to the sustained 

charge, or arbitrary, capricious or unreasonable. Douglas, 5 M.S.P.R. at 306. 

The Board will modify an agency’s penalty only if the Board finds that the 

agency failed to weigh the relevant factors or that the agency’s judgment clearly 

exceeded the limits of reasonableness. Howard v. U.S. Postal Service, 

72 M.S.P.R. 422, 427 (1996); Barry v. Department of the Treasury, 71 M.S.P.R. 

283, 285-87 (1996). 

The charge of physical inability to meet the conditions of his employment 

due to a medical condition has been sustained. The Board has held that an 

employee’s non-disciplinary removal based on such a charge is reasonable. See 

Casillas v. Department of the Air Force, 64 M.S.P.R. 627, 630, 633-34 (1994); 

Kimble v. U.S. Postal Service, 47 M.S.P.R. 251, aff’d, 945 F. 2d 417 (Fed. Cir. 

1991) (Table). Accordingly, I find the removal penalty is reasonable and the 

agency’s action is affirmed.
26

DECISION

The agency’s action is AFFIRMED.

FOR THE BOARD: /S/______________________________

Anna M. Love

Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on January 5, 2011, unless a 

petition for review is filed by that date or the Board reopens the case on its own 

motion. This is an important date because it is usually the last day on which you 

can file a petition for review with the Board. However, if you prove that you 

received this initial decision more than 5 days after the date of issuance, you may 

file a petition for review within 30 days after the date you actually receive the 

initial decision. You must establish the date on which you received it. The date 

on which the initial decision becomes final also controls when you can file a 

petition for review with the Equal Employment Opportunity Commission (EEOC) 

or with a federal court. The paragraphs that follow tell you how and when to file 

with the Board, the EEOC, or the federal courts. These instructions are important 

because if you wish to file a petition, you must file it within the proper time 

period.

BOARD REVIEW

You may request Board review of this initial decision by filing a petition 

for review. Your petition for review must state your objections to the initial 

decision, supported by references to applicable laws, regulations, and the record. 

You must file your petition with:
27

The Clerk of the Board

Merit Systems Protection Board

1615 M Street, NW.,

Washington, DC 20419

A petition for review may be filed by mail, facsimile (fax), personal or 

commercial delivery, or electronic filing. A petition for review submitted by 

electronic filing must comply with the requirements of 5 C.F.R. § 1201.14, and 

may only be accomplished at the Board's e-Appeal website 

(https://e-appeal.mspb.gov). 

If you file a petition for review, the Board will obtain the record in your 

case from the administrative judge and you should not submit anything to the 

Board that is already part of the record. Your petition must be filed with the 

Clerk of the Board no later than the date this initial decision becomes final, or if 

this initial decision is received by you more than 5 days after the date of issuance, 

30 days after the date you actually receive the initial decision. If you claim that 

you received this decision more than 5 days after its issuance, you have the 

burden to prove to the Board the date of receipt. You may meet your burden by 

filing evidence and argument, sworn or under penalty of perjury (see 5 C.F.R. 

Part 1201, Appendix 4) to support your claim. The date of filing by mail is 

determined by the postmark date. The date of filing by fax or e-mail is the date 

of submission. The date of filing by personal delivery is the date on which the 

Board receives the document. The date of filing by commercial delivery is the 

date the document was delivered to the commercial delivery service. Your 

petition may be rejected and returned to you if you fail to provide a statement of 

how you served your petition on the other party. If the petition is filed by e-mail, 

and the other party has elected e-Filing, including the party in the address portion 

of the e-mail constitutes a certificate of service.
28

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION REVIEW

If you disagree with the Board's final decision on discrimination, you may 

obtain further administrative review by filing a petition with the EEOC no later 

than 30 calendar days after the date this initial decision becomes final. The 

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20036

JUDICIAL REVIEW

If you do not want to file a petition with the EEOC, you may ask for 

judicial review of both discrimination and nondiscrimination issues by filing a 

civil action. If you are asserting a claim under the Civil Rights Act or under the 

Rehabilitation Act, you must file your appeal with the appropriate United States 

district court as provided in 42 U.S.C. § 2000e-5. If you file a civil action with 

the court, you must name the head of the agency as the defendant. See 42 U.S.C. 

§ 2000e-16(c). To be timely, your civil action under the Civil Rights Act, 

42 U.S.C. § 2000e-16(c) must be filed no later than 30 calendar days after the 

date this initial decision becomes final. If you are asserting a claim under the 

Age Discrimination in Employment Act, your claim must be filed with the 

appropriate United States district court as provided in 29 U.S.C. § 633a(c). In 

some, but not all districts you may have up to 6 years to file such a civil action. 

See 28 U.S.C. § 2401(a).

If you choose not to contest the Board's decision on discrimination, you 

may ask for judicial review of the nondiscrimination issues by filing a petition 

with:

The United States Court of Appeals

for the Federal Circuit

717 Madison Place, NW.

Washington, DC 20439
29

You may not file your petition with the court before this decision becomes final. 

To be timely, your petition must be received by the court no later than 60 

calendar days after the date this initial decision becomes final.

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.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review of this initial 

decision in accordance with the Board's regulations.