After reading a couple recent MSPB decisions, I thought it might be helpful to briefly address a less than well-known case in MSPB jurisprudence – the Bruner presumption. Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed.Cir.1993).
When a Federal agency removes an employee for “medical inability to perform the essential functions of the job”, that employee is presumed to be eligible for disability retirement upon timely application to OPM.
Now, that doesn’t mean the employee’s disability retirement is automatically approved – instead, it means that if OPM is going to deny disability retirement, the burden is on OPM to show that the employee is not eligible for that benefit.
Normally, it’s the other way around – the employee carries the burden of proving his or her eligibility for disability retirement.Why is this important?
A couple of reasons.
The big one is this: Bruner is good fodder for pre-appeal settlement discussions with an Agency.
Sometimes, when an employee is able to show that there is a connection between a medical condition they have and specific performance/conduct deficiencies, then the employee might be able to persuade the Agency to substitute an AWOL or other misconduct/performance removal with the “unable to perform the essential functions” removal.
This early action benefits the Agency – by settling the case pre-appeal (on grounds of removal that the employee will agree to), they save the time of litigation and the risk of having the employee reinstated.
This usually benefits the employee – if they truly cannot perform the essential functions of the job because of the medical condition, then the employee typically can secure disability retirement through OPM.
A word of caution to employees: before you make this negotiation on your own, get sound legal advice from a lawyer who knows the regulations and case law in the area of federal employee representation. A less than well-intentioned (or less than knowledgeable) Agency representative may take advantage of a pro-se employee and you could end up with neither an MSPB appeal of your removal nor disability retirement benefits.