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The Trials and Tribulations of Federal Disability Retirement Paperwork

April 26, 2013 By

Filing for federal disability retirement benefits can be a daunting process, due in no small part to the copious amounts of paperwork an applicant faces.

If there is a theme I have noticed from applicants upon realizing how many steps are necessary to file an application, it is that their initial reactions ranges from frustration to bewilderment. When a Federal or Postal service employee opts to file for Federal Disability Retirement benefits, he or she is confronted with a wide array of “Standard Forms” – from SF 3107 (2801 for CSRS employees), to the 3112 series (which applies to CSRS & FERS employees).

Even worse, completing these standard forms is not the end of the story: Necessary documents include the provision of:

  • Basic personal and professional information;
  • The Applicant’s Statement of his or her disability in tandem with a description of how it impacted his or her ability to perform the essential elements of the position;
  • Supervisor’s Statement – a supervisor’s assessment of the employee’s performance in the job, and any impact of the employee’s performance on the agency’s operation;
  • Medical documentation as an attachment – the details on the medical condition should support the Applicant’s Statement and refute any contrary perspective put forward by the agency;
  • The Agency’s Statement – this will touch on whether the agency made an attempt to make a reasonable accommodation of the employee’s condition and whether this was possible. It may also address the issue of whether a reassignment was attempted; and
  • Addressing additional issues – including life insurance, health insurance and spousal survivor annuity.

Information on what to consider when applying for federal disability is provided by the OPM.

These initial steps may seem onerous, but they are not the end of the story. Aside from filling in the basic forms and including the above provisions, the applicant must recognize that an effective disability retirement application often involves delving into many statutes and case decisions as well as other legal issues.  There are specific presumptions that can assist them in having there application accepted by OPM that are case law specific, like the Bruner presumption available to those who are removed for Medical Inability to Perform.

You may encounter questions such as what to do if the agency is considering terminating you, or whether a supervisor’s statement should be challenged.

When these kinds of issues arise in a disability retirement claim it makes sense to contact an experienced federal employee attorney.

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The Law Offices of Eric L. Pines represents US Federal Employees before the EEOC, MSPB, FLRA, OSC and Union Grievances as well as assisting them with obtaining their disability benefits claims from OPM and the MSPB.  The Law Offices of Eric L. Pines, Esq. represents federal employees nationwide and wherever else they may be stationed.

Mr. Pines has a unique and special interest in assisting disabled federal employees in obtaining reasonable accommodations, freedom from discriminatory treatment and OPM Disability Benefits if necessary. Mr. Pines and his firm have experience drafting over 70 EEO Final Agency Decisions as well as representing 100’s of employees in navigating the EEO Reasonable Accommodation and OPM Disability landscape.

If you are a Federal Employee or former Federal Employee we believe it is very important that you consider hiring an attorney with specific experience handling such claims in the federal employee landscape.   The federal legal system is unique and unlike any other legal system as it has many procedural and legal differences from non-federal employment law. The time and money it takes to hire an attorney who does not have federal sector experience and have them get up to speed in the federal sector legal environment can often waste valuable time and financial resources for the unknowing federal employee.  It is often a much better value and much less frustrating to hire someone who solely practices in the federal employee labor and employment field.  Attorney Eric L. Pines has practiced solely in the federal employee field for over 17 years.  For a review of recent successful case decisions please see the following link.

No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice.

The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case.

It is very important that the Law Offices of Eric L. Pines, PLLC notes that each and every Federal Employee’s claim is different. Just because the Law Offices of Eric L. Pines, PLLC was able to secure substantial past-due benefits for one Federal Employee  does not mean or imply that we will be able to do so for you.   In some cases, the Law Offices of Eric L. Pines, PLLC may not be able to secure any financial compensation or past-due benefits due to the facts or law of your particular case.

It is best to consult with the Federal Employee EEO, MSPB and EEO Disability process to examine your particular case.  If you would like to discuss your claim with a federal employee law, contact the Law Offices of Eric L. Pines, PLLC, for a free consultation with a Federal Employee attorney at 832-533-3242 or eric@pinesfederal.com.

 

Filed Under: Federal Disability Blog, OPM Disability Tagged With: , , , , , ,

FMLA Leave and EEO Issues

April 12, 2013 By

Many employees approach me and say that they need some time off from working from working for the Federal Government for a serious medical condition for themselves or a family member.  The Family and Medical Leave Act provides that employees may substitute annual and/or sick leave for part of their entitlement to up to 12 weeks of leave without pay.  If an employee requests available annual leave for a purpose that qualifies under the FMLA, this leave must be approved. 5 CFR 630.1205 (FMLA Title II employees) and 29 CFR 825.301 (U.S. Postal Service and other Title I employees).

A regular full-time employee may substitute up to 26 administrative workweeks of sick leave for unpaid FMLA leave under 5 USC 6382(a)(3) for leave to care for a covered employee during a single 12-month period.  A part-time employee or an employee with an uncommon tour of duty, the employee may substitute an amount of sick leave equal to 26 times the average number of hours in her scheduled tour of duty each week. 5 CFR 630.403.

If an employee requests sick leave for a purpose that may qualify under the FMLA, this request should be  temporarily treated as an FLMA request.  Ellshoff v. Department of the Interior, 97 FMSR 5348, 76 MSPR 54 (MSPB 1997).  However, under Title II, employees cannot be forced to take FMLA leave, since under 5 USC 6382(d), the substitution of paid leave for unpaid FMLA leave is at the employee’s election. Employees may use annual and/or sick leave for purposes that would qualify for FMLA leave, and then take their FMLA entitlement as unpaid leave. This is known as “leave stacking.”

Agencies may request the rescheduling of FMLA leave for expected medical treatment because of agency work requirements, but rescheduling must be acceptable to the employee’s health care provider. 5 CFR 630.1206(b) (for Title II) and 29 CFR 825.302(e) (for Title I).

An employee may have a claim under EEO law where an agency improperly denies an annual and/or sick leave request which is requested as a reasonable accommodation of a disability (or of an employee’s religious beliefs or practices).  In fact, a denial of leave may be discriminatory under EEO law even when reasonable accommodation is not involved if the employee can show that similarly situated employees who were not members of the complainant’s protected group were treated more advantageously in approval of their leave requests.  In such cases, the employee must also rebut the agency’s explanation of its action. If have an FMLA issues or Federal Disability related contact the Law Offices of Eric L. Pines, PLLC at 832-533-3242.

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The Law Offices of Eric L. Pines represents US Federal Employees before the EEOC, MSPB, FLRA, OSC and Union Grievances as well as assisting them with obtaining their disability benefits claims from OPM and the MSPB.  The Law Offices of Eric L. Pines, Esq. represents federal employees nationwide and wherever else they may be stationed.

Mr. Pines has a unique and special interest in assisting disabled federal employees in obtaining reasonable accommodations, freedom from discriminatory treatment and OPM Disability Benefits if necessary. Mr. Pines and his firm have experience drafting over 70 EEO Final Agency Decisions as well as representing 100’s of employees in navigating the EEO Reasonable Accommodation and OPM Disability landscape.

If you are a Federal Employee or former Federal Employee we believe it is very important that you consider hiring an attorney with specific experience handling such claims in the federal employee landscape.   The federal legal system is unique and unlike any other legal system as it has many procedural and legal differences from non-federal employment law. The time and money it takes to hire an attorney who does not have federal sector experience and have them get up to speed in the federal sector legal environment can often waste valuable time and financial resources for the unknowing federal employee.  It is often a much better value and much less frustrating to hire someone who solely practices in the federal employee labor and employment field.  Attorney Eric L. Pines has practiced solely in the federal employee field for over 17 years.  For a review of recent successful case decisions please see the following link.

No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice.

The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case.

It is very important that the Law Offices of Eric L. Pines, PLLC notes that each and every Federal Employee’s claim is different. Just because the Law Offices of Eric L. Pines, PLLC was able to secure substantial past-due benefits for one Federal Employee  does not mean or imply that we will be able to do so for you.   In some cases, the Law Offices of Eric L. Pines, PLLC may not be able to secure any financial compensation or past-due benefits due to the facts or law of your particular case.

It is best to consult with the Federal Employee EEO, MSPB and EEO Disability process to examine your particular case.  If you would like to discuss your claim with a federal employee law, contact the Law Offices of Eric L. Pines, PLLC, for a free consultation with a Federal Employee attorney at 832-533-3242 or eric@pinesfederal.com.

 

Filed Under: Disability Discrimination, Federal Disability Blog Tagged With: , , , ,

Retaliation and Reprisal Are the Biggest Complaints Among Federal Employees

April 12, 2013 By

The Equal Employment Opportunity Office released a report last year, which revealed retaliation and reprisal as the number one complaint among federal employees. The number of complaints is staggering.  These cases are actually much easier to prove than most other types of EEO cases.

The report found federal employees filed 7,553 retaliation/reprisal complaints in the fiscal year 2011, followed by 5,105 complaints of age-related discrimination and 4,389 of race-related discrimination, the report stated.

Over the five years up to 2011 there had been steady upward trend in both reprisal and age discrimination claims, the report stated.

“Also in FY 2011, the number of complaints filed with allegations of race (Black/African American) once again exceeded those complaints filed with allegations of disability (physical),” the report said.

The law protects Federal employees who have participated in EEO activity from reprisal by their supervisors or a government agency.

Many retaliation and reprisal cases reach my desk. What many federal employees do not realize is when the federal employee claims reprisal, the adverse action they cite as retaliation need not be one that materially alters the terms and conditions of their employment. In other words, if an employee is demoted after filing a complaint to the EEOC, that’s a fairly blatant reprisal. But reprisals can be much more subtle than this.  In a case called Burlington Northern, the Supreme Court made it much easier for an employee to argue that the agency’s behavior made them not want to pursue a case in the EEO process.

According to Burlington, generally, retaliation is an adverse treatment based upon a retaliatory motive that is reasonably likely to deter the charging party or others from engaging in protected activity.

The Federal employee needs to show that:

  • He or she is engaged in EEO activity that is protected. This does not have to have reached the level of an actual complaint.
  • The agency was aware of that activity.
  • The employee was subjected to adverse treatment by the agency.
  • There was a connection between the protected activity and the retaliation.

Once a case for retaliation is made, the Agency must put forward a legitimate non-discriminatory reason for its actions, which the complainant will have an opportunity to refute.

If you believe you have been retaliated against for using the EEO process, you should contact The Law Offices of Eric L. Pines, PLLC for a free consultation.

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The Law Offices of Eric L. Pines, PLLC represents US Federal Employees before the EEOC, MSPB, FLRA, OSC and Union Grievances as well as assisting them with obtaining their disability benefits claims from OPM and the MSPB.  The Law Offices of Eric L. Pines, PLLC represents federal employees nationwide and wherever else they may be stationed.

Mr. Pines has a unique and special interest in assisting disabled federal employees in obtaining reasonable accommodations, freedom from discriminatory treatment and OPM Disability Benefits if necessary. Mr. Pines and his firm have experience drafting over 70 EEO Final Agency Decisions as well as representing 100’s of employees in navigating the EEO Reasonable Accommodation and OPM Disability landscape.

If you are a Federal Employee or former Federal Employee we believe it is very important that you consider hiring an attorney with specific experience handling such claims in the federal employee landscape.   The federal legal system is unique and unlike any other legal system as it has many procedural and legal differences from non-federal employment law. The time and money it takes to hire an attorney who does not have federal sector experience and have them get up to speed in the federal sector legal environment can often waste valuable time and financial resources for the unknowing federal employee.  It is often a much better value and much less frustrating to hire someone who solely practices in the federal employee labor and employment field.  Attorney Eric L. Pines has practiced solely in the federal employee field for over 17 years.  For a review of recent successful case decisions please see the following link.

No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice.

The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case.

It is very important that the Law Offices of Eric L. Pines, PLLC notes that each and every Federal Employee’s claim is different. Just because the Law Offices of Eric L. Pines, PLLC was able to secure substantial past-due benefits for one Federal Employee  does not mean or imply that we will be able to do so for you.   In some cases, the Law Offices of Eric L. Pines, PLLC may not be able to secure any financial compensation or past-due benefits due to the facts or law of your particular case.

It is best to consult with the Federal Employee EEO, MSPB and EEO Disability process to examine your particular case.  If you would like to discuss your claim with a federal employee law, contact the Law Offices of Eric L. Pines, PLLC, for a free consultation with a Federal Employee Attorney at 832-533-3242 or eric@pinesfederal.com.

Filed Under: EEO Tagged With: , , , ,

The Role of the Supervisor Statement in an Application for Federal Disability Retirement

April 12, 2013 By

If you are a federal employee seeking federal disability retirement, you’ll quickly discover the important part your supervisor plays in the process.

The supervisor statement is a requirement of any application for retirement on the grounds of disability.

In the statement, the federal employee’s supervisor will certify a number of important requirements. One key certification is that the federal employer is unable to provide reasonable accommodation for the employee’s disabilities.

The relevant question is how far a government agency has gone in attempting to accommodate the employee who has applied for federal disability retirement.

As a federal employee you are entitled to a reasonable accommodation if you are suffering from a condition that makes it difficult for you to perform the essential functions of your position.

To be eligible for disability retirement under the Civil Service Retirement System (CSRS) or the Federal Employees Retirement System (FERS), your federal agency or the postal service must certify that it has been unable to accommodate your disabling medical condition in your present position and has considered you for vacant positions within the same area at the same grade level.

Generally the accommodation required by a federal agency is the same consideration owed to an individual seeking accommodation under the Americans with Disabilities Act.

The reasonable accommodation may comprise adjustments to the work schedule, to your work duties, or to your working environment.

There are also accommodations of last resort when none of the three traditional categories are possible. Reassignment to a vacant job which the federal employee or postal worker is qualified for, is an example.

Where none of these reasonable accommodations is possible, your supervisor can certify he or she has tried to accommodate you, but it was not possible, in support of an application for federal disability.

For more information on OPM disability or other federal employment matters, contact The Law Offices of Eric L. Pines, PLLC for a free consultation.

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The Law Offices of Eric L. Pines, PLLC represents US Federal Employees before the EEOC, MSPB, FLRA, OSC and Union Grievances as well as assisting them with obtaining their disability benefits claims from OPM and the MSPB.  The Law Offices of Eric L. Pines, PLLC represents federal employees nationwide and wherever else they may be stationed.

Mr. Pines has a unique and special interest in assisting disabled federal employees in obtaining reasonable accommodations, freedom from discriminatory treatment and OPM Disability Benefits if necessary. Mr. Pines and his firm have experience drafting over 70 EEO Final Agency Decisions as well as representing 100’s of employees in navigating the EEO Reasonable Accommodation and OPM Disability landscape.

If you are a Federal Employee or former Federal Employee we believe it is very important that you consider hiring an attorney with specific experience handling such claims in the federal employee landscape.   The federal legal system is unique and unlike any other legal system as it has many procedural and legal differences from non-federal employment law. The time and money it takes to hire an attorney who does not have federal sector experience and have them get up to speed in the federal sector legal environment can often waste valuable time and financial resources for the unknowing federal employee.  It is often a much better value and much less frustrating to hire someone who solely practices in the federal employee labor and employment field.  Attorney Eric L. Pines has practiced solely in the federal employee field for over 17 years.  For a review of recent successful case decisions please see the following link.

No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice.

The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case.

It is very important that the Law Offices of Eric L. Pines, PLLC notes that each and every Federal Employee’s claim is different. Just because the Law Offices of Eric L. Pines, PLLC was able to secure substantial past-due benefits for one Federal Employee  does not mean or imply that we will be able to do so for you.   In some cases, the Law Offices of Eric L. Pines, PLLC may not be able to secure any financial compensation or past-due benefits due to the facts or law of your particular case.

It is best to consult with the Federal Employee EEO, MSPB and EEO Disability process to examine your particular case.  If you would like to discuss your claim with a federal employee law, contact the Law Offices of Eric L. Pines, PLLC, for a free consultation with a Federal Employee Attorney at 832-533-3242 or eric@pinesfederal.com.

 

Filed Under: Federal Disability Blog, OPM Disability Tagged With: , , , , ,

The Office of Personnel Management (OPM) Should Consider a Number of Factors When Considering Disability Retirement

March 24, 2013 By

As I federal employee attorney who specializes in reasonable accommodations and OPM disability retirement, I am often frustrated when OPM denies an employee’s application for OPM disability retirement on the ground that, “there is no evidence that the disability resulted in any deficiencies of performance, conduct, and/or attendance at work.”  Unfortunately, despite a requirement that OPM consider other factors in rendering its decision, OPM will often issue a denial only on that one basis. In actual fact, when processing a disability retirement application, OPM must also consider whether the employee has performed well in his or her job despite the disability.  Thus, one pertinent question OPM must ask is whether the employee’s medical condition is incompatible with useful and efficient service or retention in the worker’s former position.

A failure by the OPM to consider these two elements, may constitute grounds to appeal OPM’s decision to the Merit Systems Protection Board (MSPB). However, to succeed before the Merit Systems Protection Board, you will need to show evidence of a disability, which is not as simple as it may appear at first glance. Although the Rehabilitation Act of 1973 provides federal employees with protection from disability discrimination by federal agencies, it is actually the Americans with Disabilities Act (ADA) and the ADA Amendments Act that set forth the standards for determining whether an individual is disabled.

Thus, a federal employee is disabled if the employee can demonstrate one or more of the following applies to him/her:

  • A physical or mental impairment that substantially limits one or more of the major life activities of such individual;’
  • A record of such an impairment; or
  • Being regarded as having such an impairment. 42 USC 12102 (1).

There are many factors to consider when contemplating whether OPM disability retirement is right for you: you should consider the financial consequences (how OPM disability will affect your income, your benefits, and your retirement planning), and you should also consider the life consequences (how your daily routine will change and whether you will be able to work in a fulfilling position while receiving OPM disability retirement.  Helping disabled federal employees has been my passion for almost 20 years.  Whether you need help applying for OPM disability, obtaining a reasonable accommodation for your disability, or seeking remuneration for discrimination you have suffered as a result of your disability, my firm and I will be here with you every step of the way.  We will work closely with you and your healthcare provider to collect all of the necessary records and information to help you in preparing your case. Please feel free to contact me directly at 832-533-3242 or at eric@pinesfederal.com.

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The Law Offices of Eric L. Pines, PLLC represents US Federal Employees before the EEOC, MSPB, FLRA, OSC and Union Grievances as well as assisting them with obtaining their disability benefits claims from OPM and the MSPB.  The Law Offices of Eric L. Pines, PLLC represents federal employees nationwide and wherever else they may be stationed.

Mr. Pines has a unique and special interest in assisting disabled federal employees in obtaining reasonable accommodations, freedom from discriminatory treatment and OPM Disability Benefits if necessary. Mr. Pines and his firm have experience drafting over 70 EEO Final Agency Decisions as well as representing 100’s of employees in navigating the EEO Reasonable Accommodation and OPM Disability landscape.

If you are a Federal Employee or former Federal Employee we believe it is very important that you consider hiring an attorney with specific experience handling such claims in the federal employee landscape.   The federal legal system is unique and unlike any other legal system as it has many procedural and legal differences from non-federal employment law. The time and money it takes to hire an attorney who does not have federal sector experience and have them get up to speed in the federal sector legal environment can often waste valuable time and financial resources for the unknowing federal employee.  It is often a much better value and much less frustrating to hire someone who solely practices in the federal employee labor and employment field.  Attorney Eric L. Pines has practiced solely in the federal employee field for over 17 years.  For a review of recent successful case decisions please see the following link.

No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice.

The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case.

It is very important that the Law Offices of Eric L. Pines, PLLC notes that each and every Federal Employee’s claim is different. Just because the Law Offices of Eric L. Pines, PLLC was able to secure substantial past-due benefits for one Federal Employee  does not mean or imply that we will be able to do so for you.   In some cases, the Law Offices of Eric L. Pines, PLLC may not be able to secure any financial compensation or past-due benefits due to the facts or law of your particular case.

It is best to consult with the Federal Employee EEO, MSPB and EEO Disability process to examine your particular case.  If you would like to discuss your claim with a federal employee law, contact the Law Offices of Eric L. Pines, PLLC, for a free consultation with a Federal Employee Attorney at 832-533-3242 or eric@pinesfederal.com.

 

Filed Under: Federal Disability Blog, OPM Disability

The Law Offices of Eric L. Pines, PLLC Wins Reconsideration Appeal for Client Suffering from Severe Psoriasis and Psoriatic Arthritis

March 14, 2013 By

BRR began experiencing psoriasis of the groin/pelvic area and psoriatic arthritis of the joints in June 2009.  BRR’s health quickly deteriorated and he soon found himself confined to his bed 16+ hours per day as a result of the grueling symptoms associated with these medical conditions, including but not limited to, constant tearing and exacerbation of the skin in the affected areas, and severe inflammation and pain in all the major and minor joints of the body.  As a result, BRR remained in a non-duty status for over 2.5 years!

BRR was finally advised by his agency to consider applying for FERS disability retirement.  Unfortunately, BRR relied solely on the agency to guide him through the complicated application process, and as a result, his application was promptly denied by OPM.  BRR then sought assistance from this firm to help him prepare and submit his Reconsideration Appeal to OPM.  Immediately evident was the poor quality and abysmal organizational structure of the original application package.  The information contained within was fraught with discrepancies and inaccuracies.  It’s really no wonder that OPM denied the initial application.  In one section of the application, the agency actually informed OPM that BRR had been accommodated for his medical conditions, which was completely untrue!

With our work cut out for us, we scrutinized both the initial application and the denial letter from OPM, thus allowing us to identify and rectify all of the discrepancies, inaccuracies, and completely false information contained in the original application.  Where applicable, we provided additional medical evidence and documentation to support our claims/arguments.  We even included references to recent MSPB case law applicable to our client’s appeal.  In the end, we were able to clearly show that BRR met the legal requirements for FERS disability retirement, and OPM promptly issued BRR his acceptance letter!

The lesson?  You may want to think twice about relying on your agency to help you coordinate and submit your application for disability retirement.  Ironically, your human resources department is typically NOT the best resource to help you prepare a successful application J.  You may want to explore the possibility of hiring an experienced attorney to help you assemble and submit your application materials.  I know that BRR is glad he did!  If you are interested in working with an experienced law firm on your disability application please contact the Law Offices of Eric L. Pines, PLLC at 832-533-3242 or eric@pinesfederal.com.

 

Filed Under: Case Results, Federal Disability Blog, OPM Disability Tagged With: , ,

Houston V.A. Nurse Tech Gets Her 7 Day Suspension Removed, Over $10,000 Back Pay and Attorney Fees

March 11, 2013 By

The Law Office of Eric L. Pines, PLLC successfully litigated a Title 38 Veterans Administration Nurse Technologists grievance arbitration at the Houston V.A.  Attorney Eric Pines successfully litigated the seven day arbitration for a complete win.

The employee was suspended for seven days and taken off her weekend shift for taking a video of her co-worker who was allegedly sleeping on duty.  The V.A. subsequently used this video to suspend the allegedly sleeping employee.  In addition to the suspension the V.A. removed her from her weekend shift which caused her to lose substantial shift differential pay.  Arbitrator Sean Rogers held that the agency could not reap the benefits of the greivant’s video and punish her.  He ruled entirely for AFGE 1633 and the grievant ordering the agency to remove the suspension in its entirety and ordering the agency to place the employee back on her weekend shift with full back pay and interest totaling over $10,000.  Attorney Fees were awarded to the grievant and Union as well.

Filed Under: Case Results, Pines Federal Legal News Tagged With: , , , , ,

The Types of Damages Available in a Federal Discrimination Case

March 11, 2013 By

One of the first questions federal employees who believe they have been discriminated against often ask me as an experienced federal employment discrimination attorney, is how much they stand to receive in damages and what kind of damages are available.

Although these are pertinent questions, it isn’t easy to give straightforward answers given the complexity of the compensation equation.

Understanding damages for discrimination claims requires considerable research and there is a lot of misinformation out there among Federal employees.

For example, many Federal employees believe damages for discrimination are capped at $300,000. This is not true. Many employees are not aware of the fact that certain categories of damages are not capped.

When you are involved in a discrimination case it can be an emotive time for you and your family. It’s very easy to lose sight of the basics that can be the difference between a successful and an unsuccessful case.

There are two important rules of thumb to consider:

• You need to prove that the remedy you seek is connected to the discrimination. For example, if discrimination leads to illness the agency may be liable for all medical costs linked to that illness. It won’t be liable for medical costs that are not the result of the discrimination.

• You will also need to “prove-up” your damages to the Judge, and also to Federal agencies in settlement discussions. In other words you will need to submit evidence of damages from reliable and trustworthy sources as well their connection to the discrimination.

Generally there are four categories of damages in relation to discrimination claims.

1. Actual Compensatory Damages (not capped)

2. Equitable Relief

3. Non-Pecuniary Compensatory Damages (capped)

4. Attorneys’ Fees and Costs

1 Actual Compensatory Damages – These damages are direct out of pocket losses as a result of the discrimination you have suffered such as medical bills.

2 Equitable Relief – This is a non-financial form of damages. After a finding of discrimination, EEOC often orders that the agency publically post notice of its finding of discrimination. It may order the agency to retrain you or its managers. You may be given a different job or transferred to another location.

3 Non-Pecuniary Compensatory Damages – Non-Pecuniary damages can be hard for an EEOC or MSPB judge to quantify because they don’t come with a receipt to fix the dollar amount to. These are the damages that are capped at $300,000. They include physical pain and suffering, emotional distress, loss of consortium and loss of enjoyment in life.

4 Attorneys’ Fees and Costs – You will normally be able to recover your attorneys’ actual hourly rate and costs when there is a finding of discrimination. You should make sure not to overlook cost such as consultation fees, even if you did not retain an attorney.

This is a brief overview of the general categories of compensation available and should not be taken to constitute legal advice. If you are a Federal employee, and would like to speak with an attorney about potential damages available to you in the EEOC complaint process, you should contact a federal employment attorney.

Filed Under: Disability Discrimination, Federal Disability Blog Tagged With: , , , , , ,

Reasonable Accommodation Does Not Apply to Looking After a Disabled Spouse

March 4, 2013 By

When you are suffering from a condition that makes it difficult for you to perform the essential functions of your position you are entitled to a reasonable accommodation from a federal agency.

But that duty to make a reasonable accommodation doesn’t cover making an accommodation to look after the spouse of a federal worker, a recent Equal Employment Opportunity Commission hearing has reiterated.

On Feb. 12, 2013 the EEOC heard an appeal in the case of Rose Marie Davis, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.

The Complainant had filed an appeal from an Agency final decision, dated August 21, 2012, regarding an EEOC complaint claiming employment discrimination in violation of the Civil Rights Act of 1964.

She worked as the education program administrator at the Agency’s Turtle Mountain Education Line Office (ELO) in Belcourt, North Dakota. She was responsible for four schools, four principals, and a staff of approximately 30 employees.

“According to the Bureau of Indian Education Chief of Staff, accountability issues arose regarding how the funds from various sources were being managed. Complainant allocated $1.6 million for building repairs, a new boiler, security alarm system, and sidewalk repaving. However, some tribal council representatives wanted the Agency to re-issue the funds to the tribe,” stated the case notes.

The complainant was reassigned to another position, but she complained her reassignment was discriminatory.

She also stated she was entitled to a reasonable accommodation to allow her to care for her husband who had a disability. The Agency said the Rehabilitation Act does not require it to provide a reasonable accommodation to allow an employee to look after a spouse.

The EEOC did not find disparate treatment.

“Complainant has not established a nexus between her age, sex, and national origin and management’s decision to reassign her to Pine Ridge,” it stated.

The EEOC noted the Commission has held individuals with a relationship or association with a person with a disability are not entitled to receive reasonable accommodations under EEOC s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act.

The commission affirmed the Agency’s final decision finding no discrimination in the case.

Filed Under: Disability Discrimination

How Long Should An Application for Federal Disability Retirement Take?

February 25, 2013 By

As a federal employee attorney, I am often asked why an application for FERS disability retirement can take so long for OPM to process.

This is not a simple question to answer. The nicest way to put it is that the Office of Personnel Management (OPM) is a bureaucracy and like all bureaucracies the wheels of justice move very slowly.OPM is certainly no exception to this rule, especially when it comes to making decisions about whether a Federal employee should be given FERS or CSRS disability retirement.If you apply it is helpful to get in the mindset of expecting a long wait rather than a quick overnight decision.OPM’s typical turnaround for a disability retirement application is within 6-9 months. Additional delays are likely if you file during the holidays when employees of federal agencies are on leave. At the end of the year applications may be held up because OPM is handling more non-disability retirements.

I often see even longer delays with applicants who work for USPS and DHS.

The process was outlined recently by Reg Jones, writing in Federal Times in an answer to a question.

“If your agency offers you an opportunity to retire early and you accept it, it will forward your application to the Office of Personnel Management, which, after a few weeks, will put you in interim pay status until it can finalize your annuity. If you apply for disability retirement, it will take time for you to provide the medical evidence and for you and your agency to complete the paperwork.

“After your application is forwarded to OPM, it will take even longer for them to review your case and make a decision. If they decide in your favor, you will start receiving your full annuity. If they decide against you, you’ll be back to square one,” Jones wrote.

If your application has dragged on more than 8 months, OPM may be taking too long to decide and you have legal rights. Yet, two cases suggest the OPM’s failure to make a decision is effectively a denial which can actually benefit you by allowing you to appeal to MSPB and get your case heard before an Administrative Judge. Since, if OPM delays your application for too long, you can assume that this implies that they are denying the claim and immediately file an appeal with the Merit Systems Protection Board (MSPB).

You should take formal steps first. Make sure to make monthly status requests. Document times of phone calls and save emails or other correspondence. Note who you spoke with when you contact the agency. Then send OPM a letter giving them notice that you are treating their silence as evidence of denial of your claim, giving them sufficient time to respond.

Filed Under: Federal Disability Blog, OPM Disability Tagged With: , , , , , , , ,
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