Attig Law Firm P.L.L.C

In the course of your Merit Systems Protection Board (MSPB) or Equal Employment Opportunity (EEO) hearing, you should be told, by the Judge, of your “burdens of proof”.  This phrase is a legal term of art.  If you can understand your “burden of proof”, you will really have a good advantage.  You can structure your case on arguing that you met your burden of proof, or that the Agency failed to meet its burden of proof.

The Burden of Proof is made up of two separate burdens: the Burden of Production and the Burden of Persuasion.  The Burden of Production is the duty to produce factual evidence - whether documentary or testimonial - to the finder of fact (in this case, the Adminstrative Judge).   The Burden of Persuasion is the duty to convince the finder of fact to view the facts that were produced in a certain way.

Here are the legal standards for several legal burdens that you will run into in the MSPB and the EEOC - be forewarned, however, there are more than those listed here.   You can read more about Burdens of Proof at 5 C.F.R. 1201.56

Clear and Convincing Evidence: Here is the definition the MSPB uses: that degree of evidence that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established.  Essentially, this means that it is substantially more likely than not that the disputed fact is true.  The Agency typically has this burden of proof in a whistleblower reprisal case.  Once an Appellant has shown, by a preponderance of the evidence, that the Appellant’s whistle-blowing was  a contributing factor in the personnel action at issue, the Agency can only prevail by showing clear and convincing evidence that it would have taken the adverse action at issue regardless of the Appellant’s whistle-blowing.  You can imagine how difficult this is for an Agency - since you have already convinced the Judge that it is more likely than not that your whistleblowing contributed to the personnel action, it is going to take an awful lot of evidence to convince a Judge to break that connection.

Preponderance of the Evidence:  That degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient o find that a contested fact is more likely to be true than untrue. This is usually the Agency’s burden in any adverse action case before the MSPB.  It is the Appellant’s burden in any discrimination claim before the EEOC or MSPB (in a mixed case), and the Appellant’s burden in any affirmative defense (whistle-blower reprisal, etc).

Substantial Evidence: That amount of evidence that a reasonable mind would accept as adequate to support a particular conclusion - even though other reasonable minds could reach the opposite conclusion.   This is the Agency’s burden in a performance removal/demotion case.  It is a relatively light burden - the Agency doesn’t have to show that their conclusion is right, and you won’t win if you show that the Agency’s conclusion is wrong.  The Agency need only show that their conclusion was reasonable.  Notice the difference between preponderance and substantial - substantial evidence has nothing to do with whether or not the Agency’s conclusions were true or untrue - only whether they were reasonable. Preponderance, on the other hand, has nothing to do with the reasonableness of the Agency’s conclusion - only whether it is more likely than not true or untrue.  Your defense in a substantial evidence case should be designed in such a way as to persuade the Judge that the Agency’s conclusion is unreasonable.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals or a lawyer familiar with Federal employee EEO complaints to discuss the facts and law of your particular case. If you have questions about the burdens of proof in your MSPB appeal or EEO Complaint, contact an EEO and MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

This is the final post in a series: “Five Ways to Establish Service-Connection” for a disease, injury or other medical condition that is used as the basis of a veteran’s claim for VA benefits. You can read the first entry by clicking here. You can read the second entry by clicking here. You can read the third entry by clicking here. You can read the fourth entry by clicking here. You can read the fifth entry by clicking here.

This post - indeed, any post on this website - is not legal advice, is not meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the veteran, some power. This information is not widely or easily accessible to Veterans. It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case.

This post will discuss the final way to establish service-connection: “Connection due to injury caused by treatment in the VA healthcare system”.

This is a pretty straightforward issue.  38 U.S.C. 1151 states that if a veteran is injured because of VA hospitalization, treatment, rehab or therapy that is not the fault of the veteran, the injury is treated as service-connected.  You will have  to show fault, whether that fault is through negligence, lack of proper skill, carelessness, error in judgment, etc.  To show fault, you will need a medical expert opinion.  Medical experts can charge very high rates for their services.  In addition, to prove an “1151 claim”, you will need to show:

1. Additional disability or death.  The VA will compare your condition immediately prior to treatment to your condition immediately after treatment by the VA to determine the existence of an additional disability.
2. VA Hospital Care, Medical treatment, surgery, or examination.  The term Hospital Care is narrow - prior to 1997, an 1151 claimant needed only show “hospitalization” which could have included anything that occurred general experience during the course of VA treatment.  Now, the tighter showing of Hospital Care is necessary.
3. Proximate Cause.  This is a legal term that establishes the “bridge” between the VA treatment and the additional disability.  Proximate cause is a legal term, and the VA defines it as such: “the action or event that directly caused the disability or death, as distinguished from a remote contributing cause.”  Additionally, you will need to show “actual cause”.  The good news is that the burden of proof for this element is the “balance of the evidence” - which lies somewhere between substantial evidence and preponderance of the evidence.

Most veterans we have talked to that have been injured by for the above reasons want to talk to us about suing the VA for medical malpractice?  The answer is generally, yes.    This type of lawsuit is permitted under the Federal Tort Claims Act (FTCA).  The FTCA is a separate matter entirely, and will be the subject of a future post.

A section 1151 claim is a straightforward, but fact and law intensive, means to service-connect a disability.  Often times, you will need the assistance or guidance of a Veteran Service Organization or a VA Benefits lawyer to help you establish the requisite degree of proof.  If you would like to consult with legal counsel regarding your VA disability compensation or other VA benefits claim, contact a VA Benefits attorney at the Attig Law Firm to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.

One of the most challenging aspects of Federal employee employment law is the concept of the “mixed case”.    The rules and procedures governing a “mixed case” are so complicated that this post does not seek to explain the “ins and outs” of every situation that could arise in a mixed case.  This post only seeks to explain generally what a mixed case is and how a mixed case should be handled.

So let’s start there. What is a “mixed case”?   A “mixed case” occurs when you have the statutory right to challenge an Agency action in two forums with overlapping jurisdiction - the Equal Employment Opportunity Commission (EEOC) and the Merit Systems Protection Board (MSPB).  If an Agency takes an adverse action which is appealable to the MSPB, and you want to allege that action was motivated by improper discrimination or reprisal for protected EEO activity, then you have a mixed case.  In a mixed case, you have the right to choose which forum you want to raise your claim in first - the MSPB or the EEOC.   If you first challenge the mixed-case action in the EEOC, you have what is called a “mixed-case complaint”.  If you first challenge the mixed-case action in the MSPB, you have what is called a “mixed-case appeal”.  The only difference in the two processes is the path they take to get to a ruling by the appropriate judge. Let’s discuss that in more detail.

Mixed Case Complaint -  MD 110, Chapter 3, defines a “mixed case complaint” as a “…complaint of employment discrimination filed with a Federal agency based on race, color, religion, sex, national origin, age, handicap, or reprisal related to or stemming from an action that may be appealed to the Merit Systems Protection Board (MSPB). The complaint may contain only an allegation of employment discrimination or it may contain additional non-discrimination allegations that the MSPB has jurisdiction to address.  If you file a mixed case complaint, the agency must process the complaint in the same manner as it would any other discrimination complaint.  However, there are a few differences:

• The Agency must tell you, when you file a complaint, that if a Final Agency Decision (FAD) is not issued within one hundred and twenty (120) days after you file your mixed case complaint, you may appeal the matter to the MSPB at any time thereafter or you can file a civil action in certain federal courts. N.B. - Be wary of leaving the administrative process to file in any federal court - this can prove to be a very dangerous proposition. There will be a post on this matter soon.
• When you file a mixed-case complaint, the Agency must tell you that if you are dissatisfied with the Final Agency Decision (FAD) on the mixed case complaint, you may appeal the matter to the MSPB  - not the EEOC - within 20 days of receipt of the FAD;
• The Agency must issue a FAD within 45 days after the date the investigation is completed.
• When the Agency issues a FAD in a mixed case complaint, the Agency must tell you that you have a right to appeal the matter to the MSPB (not EEOC) within 20 days after you received the FAD - this is different from the typical time to appeal to the MSPB, which is 30 days from the date of the adverse action.

Mixed Case Appeal - A “mixed case appeal” is an appeal filed directly with the MSPB that alleges that an appealable agency action was effected, in whole or in part, because of discrimination on the basis of race, color, religion, sex, national origin, handicap, or age.  The MSPB will process your appeal in the exact same manner that it processes any appeal, and you will carry the burden of proof on your discrimination claims.

The biggest issue with mixed cases involves the dual filing of the matter in the EEOC and the MSPB.  This often occurs when the Agency fails to identify and process your EEO complaint as a mixed case complaint, or when you file a mixed case appeal and the Agency wants to argue that your EEO complaint was filed first.

Another issue that arises with mixed cases is determining which forum is better to initiate you claim in - the EEOC or MSPB.  This is a question that cannot be answered in a blog, as it depends entirely on the particular facts of your case.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals or a lawyer familiar with Federal employee EEO complaints to discuss the facts and law of your particular case. If you think that you have a mixed case, or if you have questions about how to handle your mixed case complaint or mixed case appeal, contact an EEO and MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

Click on the link below to view a Message Board Forum for VA Benefits. While I can’t and won’t endorse the accuracy of anything posted there, I will say that there appears to be quite a bit of information about VA benefits, claims, procedures, etc.:

Click here to go to the  Veterans Benefits Forum

As always, no message board and no blog - including this one - can substitute for personal legal advice. It is always advisable to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine the particular facts and law of your case.

If you would like to consult with legal counsel regarding your VA disability compensation or other VA benefits claim, contact a VA Benefits attorney at the Attig Law Firm to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.

Another type of benefit to which some federal employees injured on the job are entitled is called a schedule award.  Surprisingly, many employees that call our office to discuss their OWCP case are not familiar with, or have never heard of, a schedule award.

A schedule award is payment by OWCP for a permanent loss (or loss of use) of certain body parts.  (OWCP calls the body parts “members”).  Payment is made for a specified time period based on the degree of the impairment.   (The time period is initially defined by a statutory schedule, hence the term ’schedule award’).

Here are some examples of the time period of payment for certain “members” - i.e., body parts:

• Arm - 312 weeks
• Leg -  288 weeks
• Eye -  160 weeks

So, if because of an on-the-job injury, you suffer total loss of use of your arm, you may be entitled to a payment of 2/3 (or 3/4) of your pay for 312 weeks.  Click on this link to see the full schedule which is listed in 5 U.S.C. 8107.

Not everybody will suffer a total loss of use of a body part.  Some people experience only a partial loss of use that will be permanent.  This occurs very commonly with certain injuries such as carpal/cubital tunnel, and other joint or musculo-skeletal injuries or diseases.  How does OWCP calculate the schedule award benefit?

First, you will need to tell OWCP that you have reached what is called MMI - Maximum Medical Improvement.   Only your doctor can make this determination.

After you reach MMI, you will want to have your doctor prepare a report assessing your impairment rating.  To do this, your doctor MUST use the AMA Guide to the Evaluation of Permanent Impairments (5th Edition), and must make specific references to the pages, tables and charts that (s)he relied on in reaching her conclusions about the degree of your permanent impairment. This impairment rating must also fix the date that your loss of use became permanent, and sufficiently describe the character and degree of the impairment so the claims examiner can visualize the permanent loss or loss of use.

Very few doctors are familiar with OWCP’s somewhat onerous requirements for an impairment rating.  In fact, many doctors run screaming when they hear the phrase “Federal Workers’ Compensation” (wouldn’t you, if you could?).   It is advisable to consult with a lawyer familiar with OWCP claims if you need an impairment rating for a schedule award.

Once you have this “impairment rating”, send it to OWCP - not your Agency - with your application for a schedule award (use form CA-7).  If OWCP denies your request, you will have the same appeal rights that you have for any other denied benefit - 30 days to request a hearing and 1 year to request reconsideration.

That’s a schedule award in the proverbial nutshell.  You should know that you cannot get a schedule award for permanent loss of use to your back, brain or heart.  Congress has specifically excluded these parts of your body from schedule award compensation.

It is also worth noting that you cannot receive a schedule award payment at the same time you are receiving disability benefits (wage loss compensation) from OWCP.  If you accept a schedule award, your wage-loss will stop while the schedule award is paid. If there is still a loss in earning capacity after the schedule award is paid out, then you will be entitled to request wage-loss compensation again.

While you cannot accept disability benefits (wage loss compensation) from OWCP and OPM disability retirement benefits at the same time, you can receive a schedule award at the same time as you are receiving OPM disability retirement benefits.   This may leave you in a quandry about which benefits to apply for and when.

If you have questions about your eligibility for a schedule award, whether your doctor’s impairment rating will pass OWCP muster, or just questions about which benefits to apply for and when, you can consult with a lawyer familiar with OWCP claims by contacting an OWCP attorney at  the Attig Law Firm.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and this information is not widely or easily accessible to Federal Employees. We are providing this information to give you, the federal employee, more information, more knowledge and more power. However, we are not providing you with legal advice by giving you access to this information.

 Here’s a link to a video that shows that Benazir Bhutto was shot, not killed by a suicide bomber.  The report shows the shooter, the shots, which you can clearly hear.

http://www.alternet.org/blogs/video/72350/

It also discusses the likely possibility of the Pakistani government’s involvement, given the potential cover-up and Musharraf’s denial of Bhutto’s earlier request to allow private British and American bodyguards to protect her.

I’m not sure why a government would want to perpetuate the idea that Bhutto was not killed by an assassin’s bullet, unless….they have something to hide (or gain) from a death by a suicide bomber.

When are you entitled to take Family and Medical Leave Act (FMLA) leave? That answer depends in large part on the particular Agency you work for. Many Agencies have internal rules and procedures implementing FMLA - while they differ slightly from Agency to Agency, they can never be more strict than the requirements that appear below.

Under the Family and Medical Leave Act of 1993 (FMLA), most Federal employees are entitled to a total of up to 12 workweeks of unpaid leave during any 12-month period for the following purposes:

• the birth of a son or daughter of the employee and the care of such son or daughter;
• the placement of a son or daughter with the employee for adoption or foster care;
• the care of spouse, son, daughter, or parent of the employee who has a serious health condition; or
• a serious health condition of the employee that makes the employee unable to perform the essential functions of his or her positions.

Your Agency may define the 12 month period in one of two ways. It can either be a calendar year or, in some situations, Agencies can use a “rolling 12 months”. Your 12 months would start on the first day you are granted any FMLA leave. Some Agencies do this to prevent employees from taking 12 weeks off in October-December of one year, and then January to March in the subsequent year.

Under certain conditions, an employee may use the 12 weeks of FMLA leave intermittently. An employee may elect to substitute annual leave and/or sick leave, consistent with current laws and OPM’s regulations for using annual and sick leave, for any unpaid leave under the FMLA.

When making the request, you need only two things: a request and a medical certification.

Although Agencies will often prefer that you use an SF-71 or its equivalent, the request for FMLA need not be on any particular form. In fact, an employer is supposed to provide you information about your rights and responsibilities under FMLA if the employer becomes aware of any circumstances which might qualify for FMLA. We recently settled a case with an Agency that fired an employee because she didn’t use SF-71 to request the leave. Needless to say, our client appealed the decision to the MSPB and was restored to the Agency rolls (although it took a day of a hearing before the MSPB to convince a very stubborn Agency to settle the appeal). The request should indicate the dates you would like to take off, that you are taking the time off for one of the qualifying events listed above, and should - if possible - give 30 days notice to the employer. The 30 day notice does not apply in all situations, as medical emergencies occur and 30 days notice is not always possible.

In addition to the request, you will need to provide a medical certification. Agencies sometimes put onerous burdens on what employees need to provide in their medical certification. This is improper. In order to ensure that your medical certification is not immediately rejected by your Agency, you should consider using the form found at this link. However, all that a medical certification requires under FMLA is the following items:

1. The date the serious health condition commenced;
2. The probable duration of the serious health condition or, if the condition is chronic, a statement that the condition is chronic, the patient is currently incapacitated, and the frequency of the symptoms;
3. Appropriate medical facts about the condition, the incapacitation and the treatment (this need only be a very general statement);
4. A statement that the employee is incapacitated for duty or is unable to perform at least one essential function of the job (you may need to provide additional statements if the FMLA leave is for treatment/care of someone other than yourself.)

Your doctor may balk at the idea of giving your employer too much information - and rightly so. Your medical matters are private, and the Agency is only required to know as little about them to properly maintain FMLA leave records. If you have any questions about whether your medical certification is sufficient under FMLA, give us a call or send us an email and we’d be happy to take a look at it.

Any leave granted under FMLA is typically Leave Without Pay (LWOP). You can substitute accrued annual or accrued sick leave for the LWOP so that you don’t experience a loss in pay.

FMLA is not meant to be a “gotcha”. Nor is meant to be difficult for employees to apply for and receive. Unfortunately, too many Agencies treat it as such and discipline employees for taking leave under FMLA. Common charges include AWOL, Failure to Properly Request Leave, Failure to Follow Leave Procedures, Failure to Follow Instructions, etc.   If you feel you have been improperly denied FMLA, or feel you have been the victim of a disciplinary or other adverse action because you applied for or took FMLA, it is important to consult with a lawyer familiar with FMLA and your right to appeal to the Merit Systems Protection Board (MSPB).

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you think that your Agency improperly denied FMLA or took an adverse action against you because you asked for or were granted FMLA leave, contact the Attig Law Firm, PLLC, to schedule a telephone consultation.

This is the fifth post in a series: “Five Ways to Establish Service-Connection” for a disease, injury or other medical condition that is used as the basis of a veteran’s claim for VA benefits. You can read the first entry by clicking here. You can read the second entry by clicking here. You can read the third entry by clicking here. You can read the fourth entry by clicking here.

This post - indeed, any post on this website - is not legal advice, is not meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the veteran, some power. This information is not widely or easily accessible to Veterans. It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case.

This post will discuss the fourth way to establish service-connection: “Service Connection by Secondary Connection.” This type of service connection occurs when any disability or injury you have is the result of another service-connected disability or injury. It can occur when a service-connected condition causes a new disability or merely makes a pre-existing or non-service connected disability worse. Your compensation will only be to the increase in the second disability by the original service-connected disability.

You will not succeed in this type of claim without sufficient medical evidence. The standard is to produce sufficient medical evidence to show that it is as likely as not that the second condition was caused or aggravated by the first condition. To establish this to the satisfaction of the VA, you will most certainly need at least one medical expert opinion.

As anyone who has dealt with doctors knows, opinions can vary from doctor to doctor. That is why it is a good tactic to not really on the expert opinion of the VA Physician. It is highly recommended that you consult with a private medical expert to establish the required proof.

Here are some examples of secondary connection:

Scenario 1: As a result of a combat injury, you are diagnosed with post-traumatic stress disorder (PTSD), depression or any other mental health condition. Is this a secondary connection?

Answer: Probably. You will need a psychiatrist to provide a written expert opinion to the VA that connects the PTSD to the service-connected injury. Read more about PTSD claims in our VA Benefits blog by clicking here.

Scenario 2: (This general scenario appears in the Veterans’ Benefits Manual, page 132.) A veteran has a 30% rating for a service-connected knee injury. As a result of that injury, the veteran now complains of chronic back-pain and walks with a limp. Is the low-back pain and limp a secondary connection?

Answer: It depends. If you have an opinion from a private medical expert, you may be able to establish that the second injury, the low back pain, is connected to the original knee problem. This is a tougher claim, because there are many causes for low back-pain.

You need not provide clear and convincing evidence that the secondary condition is connected to the prior service-connected disability or that the prior service-connected disability is the sole cause for the second condition. The VA is supposed to give the Veteran the benefit of the doubt. This is why it is extremely helpful to have a private medical expert opinion before the VA examination.

If your claim for VA benefits will be based on service-connection by secondary connection, or if you are not sure whether your second injury can be service-connected, or if your claim for an increase in benefits due to a secondary condition is denied, a Veteran Service Organization or a VA Benefits lawyer should be able to help you determine if the legal presumptions apply to your situation.If you would like to consult with legal counsel regarding your VA disability compensation or other VA benefits claim, contact a VA Benefits attorney at the Attig Law Firm to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.

Continuation of Pay (COP) is a benefit available to federal employees who are injured on the job.   This benefit amounts to payment, by the employing Agency, of the employee’s regular pay for up to 45 days while the employee seeks medical treatment.   COP is only available to those employees that suffer a traumatic injury - not those that have an occupational disease.

If you believe you are entitled to COP, file form CA-1 within thirty (30) days of the on-the-job injury.  Your employing Agency will be required to pay COP unless it can “controvert” - disprove entitlement t0 -  the benefit.  An Agency can controvert COP benefits by showing any one thing from the list below:

1. the disability is due to an occupational disease or illness (remember, you can only claim COP for a traumatic injury;
2. the employee served without pay or received only nominal pay;
3. the employee is neither a citizen nor a resident of the United States;
4. the injury occurred off the employer’s premises and the employee was not engaged in authorized “off premises duties”;
5. the injury was caused by the employee’s willful misconduct (used most often when an employee is under the influence of drugs or alcohol at the time of the injury);
6. the injury was not reported on Form CA-1 within 30 days after the injury;
7. the employee first stopped work more than 45 days after the injury;
8. the employee first reported the injury after employment ended;
9. the employee is enrolled a group covered by special legislation (Peace Corps, Job Corps, Youth
   Conservation Corps, work-study program, etc.)

The employer can stop COP in only a limited set of circumstances.  One of those may occur if, prior to the injury, you had received notice of a disciplinary action that might result in loss of wages (suspension, removal, etc.).  The employer may also temporarily (or permanently) stop COP if you haven’t provided medical evidence of a disabling traumatic injury within ten (10) days of making the claim for COP.  Finally, the employer may stop COP if your doctor finds you partially disabled and you refuse (or refuse to respond to) a suitable offer of work.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with federal employee OWCP claims to discuss the facts and law of your particular case.  If you think that you may be entitled to COP, or have questions about COP benefits or any OWCP benefits or claims, contact an attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

In any EEO case, the Federal employee will be required to prove their claim of discrimination. Understanding what they must prove can often be difficult and confusing. Generally speaking, the Judge will follow the McDonnell-Douglas test in determining whether or not the claimant has met their burden of proof. This test is named for the famous US Supreme Court decision that laid out the test. McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)

The three parts of the McDonnell-Douglas test are this:

1. The complainant bears the burden of production to show a ‘prima facie’ case of discrimination;
2. If the complainant shows a ‘prima facie’ case, the burden of production shifts to the Agency to show that they had a legitimate non-discriminatory reason for the action complained of;
3. If the Agency shows a legitimate non-discriminatory reason for its action, the burden of production shifts back to the complainant to show what is called ‘pretext’.

We will discuss each of these elements in upcoming posts. You can click on the link in the above text to go to each post, once it is has been published.

It is important to note, however, that in the law there is a large difference between a “burden of production” and a “burden of persuasion”. The burden of production means only that the party must put forth evidence of the particular element. The burden of persuasion, however, means that the party must persuade the finder-of-fact (in Federal Employee EEO cases, this is the EEOC Administrative Judge) of the correctness of their evidence. In an EEO case, the burden of persuasion always stays with the Complainant (the federal employee). The burden of production - producing evidence to support a claim, shifts if the other party meets its burden. Think of it as a tennis match - if you serve the ball to the Agency, they can either return the ‘ball’ to you by producing evidence of a legitimate non-discriminatory reason, or they can miss the ‘ball’. Generally speaking, if the Agency doesn’t return the ‘ball’ you served, you might be able to prevail without any further proof. (This is not always the case however, and you should consult with a Federal Employee EEO attorney to discuss the facts of your particular case)

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with federal employee EEOC complaints (or MSPB mixed-case appeals) to discuss the facts and law of your particular case. If you have questions about the burden-shifting process, or any claims about your Federal employee EEO complaint, contact an attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.