Failure To Go Health Take a look at Requirement Leads To Elimination

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The cast is Jaliwala versus Dept Homeland Security (CAFC No. 2021-1523 (without precedent) 09/10/2021). Mr. Jaliwala applied for a job as a detective with the Department of Homeland Security (DHS), Immigration and Customs Enforcement. The announcement specifically stated that the selected applicant may have to take a physical fitness test in accordance with the agency’s requirements in the future. Mr. Jaliwala was hired and began basic training. During his training, ICE set new requirements for the Personal Fitness Test (PFT) that everyone in their position had to meet in order to keep their job. Mr. Jaliwala met all requirements except for the requirement to run 1.5 miles in 14 minutes 25 seconds. His time was more than two minutes above the PFT requirement. (Opinion on p. 2)

After failing the PFT, Jaliwala dropped out of basic training and was sent home. He applied to the PFT for a waiver in accordance with the procedures of the Office for Personnel Management (OPM). This required that he provide “sufficient evidence that” [he] can perform the essential tasks of the job without affecting the health and safety of the [himself] or others. “(p. 3)

When Jaliwala’s request for a waiver was received by the Training Review Board, it recommended that the waiver not be granted; however, the board recommended giving Jaliwala one more chance to pass the test. The examining ICE officer accepted the board’s recommendation. However, when Jaliwala took the PFT a second time, he was still more than 2 minutes behind the time required for the 1.5 mile run. (P. 3)

At that point, the agency suggested removing him for failing to meet the required PFT. He was offered a third attempt to pass the PFT, but Jaliwala argued that the agency should have granted his waiver given that he previously held a law enforcement position and was thus fully qualified to keep his job. The agency ordered his removal and Jaliwala appealed to the Merit Systems Protection Board (MSPB).

He argued to the MSPB that the agency committed a harmful procedural error and failed to follow the required procedures in rejecting his request for a waiver. While the MSPB found procedural errors in the waiver process, it concluded that it was not a harmful error. The agency concluded that Jaliwala did not provide evidence that he “would be able to track down a person fleeing or in response to a dangerous situation, or assist another agent in a shootout, which are essential duties. ”(P. 5)

The MSPB concluded that if the procedural error had not occurred, it likely would not have led to a different conclusion regarding the removal of Jaliwala. In other words, he has not shown that it was a harmful error that would have affected the outcome of the selection board’s proceedings. (P. 6)

Regarding its argument that the procedures used to consider his request for a waiver were not in line with legal requirements, the MSPB concluded that it was not responsible for reviewing the process or deciding on the waiver. The court agrees with MSPB’s conclusions.

The court notes that Mr. Jaliwala had “numerous opportunities” to meet the PFT requirements and notes that his “dissatisfaction appears to be due to his disagreement with the authorities about running 1.5 miles in less than 14 minutes and 25 seconds is a necessary requirement ”. in order to adequately carry out the work. “(p. 7) The MSPB and now also the court of appeal have made it clear that these types of judgments are reserved for the agency and not be questioned in the appeal.

© 2021 Susan McGuire Smith. All rights reserved. This article may not be reproduced in any reproduction without the express written consent of Susan McGuire Smith.