Attig Law Firm P.L.L.C

Most employees do not know that they do not have to be the actual victim of a “sexual harasser” to be harmed by sexual harassment.   People who are not the target of sexual harassment but who work in environments where sex harassment is occurring can file “third party” and “bystander” harassment suits. These types of claims can be filed by men or women.

There are two types of third-party sexual harassment claims: “quid pro quo” or hostile environment.

“Quid pro quo” is a Latin phrase meaning “something for something” or “this for that”.  In laymen’s terms this simply means “You scratch my back and I’ll scratch yours”.  Quid pro quo sexual harassment is the most commonly known - in exchange for some sexual favor, an employee is given a benefit or boost in the workplace.    How can this affect a third-party - someone other than the employee giving the “sexual favor”?  Simple - when the employee who is not harassed loses a job benefit or opportunity to someone who is less qualified that submitted to the sexual harassment.

Here’s an example that really happened.  The manager of a small and specialized workgroup had a sexual affair with his subordinate and administrative assistant.  The manager gave his “girlfriend” extra bonuses, time-off without using leave, flexible schedules, etc., that weren’t available to other administrative assistants in the office.  Another administrative assistant realized that she was losing out on job opportunities and benefits (she was much more qualified than the paramour for the paramour’s job) because of the affair the boss was having; she realized that unless she slept with the boss, she wasn’t going to get ahead.  This is a classic form of third-party “quid pro quo” sexual harassment.

The second type of third-party sexual harassment is “hostile environment”.   Consider the same scenario above - if one employee who grants sexual favors is given preferential treatment, the motivation and work performance of other employees may be negatively affected.  This is a tough case to prove - not because it doesn’t happen or there isn’t evidence of it, but because you will have to prove the harassment was “excessive, pervasive and opprobrious”.  That means, essentially, that the harrassment was severe enough that it would shock the conscience of the average person, it occurred over a significant period of time, and the negative effects were unmistakeable and long-lasting.

If you think you may be the victim of third-party or bystander sexual harassment - or the victim of any discrimination in the Federal workplace -  contact the Attig Law Firm, PLLC, today to discuss your situation.

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 about your MSPB appeal, EEO Complaint or OWCP claim.  We are not providing you with legal advice by giving you access to this information.

By far, this is the most common question that is asked during consultations.  The quick answer is “Yes, you should apply for both if you believe you are entitled to both”.  However, you will not be able to receive both at the same time.

If you are eligible for disability retirement through OPM, then apply for it.  At the same time, if you are eligible for disability compensation from OWCP, apply for it.  If you are granted both you will have to make an election between the two.  If you accept both, and the mistake isn’t caught, it is highly likely that sometime down the road you will get hit with a huge bill from Uncle Sam seeking recoupment of overpaid benefits.

One word of caution - if the Agency removes you from the rolls, you have only one (1) year from the date of separation to apply for disability retirement through OPM.  Do not miss this deadline - as discussed throughout this Blog, the government loves their deadlines, and they stick to them ferociously.  Unless you have legal “good cause” for missing the one-year deadline to apply for OPM disability retirement, you will have forever lost your ability to apply for that benefit.

There are reasons why you may or may not want to accept one or the other.  The biggest advantage of OWCP disability compensation payments is that they are currently not taxed - at least as of the date of this post (December 27, 2007).  There are other advantages and disadvantages you should consider - every situation is a little bit different. Contact a lawyer at the Attig Law Firm to discuss your specific OWCP or OPM disability retirement questions.

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 scenario that can happen quite frequently.  You are driving a vehicle as part of your government job, and you get hit by another driver.  You file a complain for benefits with OWCP and your injury is accepted as an on-the-job injury.   Can you sue the other driver that hit you and caused the injury?  The short answer is “yes”, but there is information you may need to know before going forward with that cause of action.

First of all, if you believe someone other than the government is responsible for the on-the-job injury, you need to let your Agency and your claims examiner at OWCP know.   Based on the circumstances, you may be able to sue the other driver on your own, or you may choose to assign the claim/lawsuit to the United States.   Failure to do one of these two options could lead to a forfeiture of your OWCP benefits.  The Postal Service is a little different than other federal agencies, so you should research the rules of your particular agency as well.

The tricky part - and one reason that a lot of attorneys practicing in the Personal Injury field don’t often take this kind of claim, is that OWCP rules govern how any recovery should be apportioned between you, the government and your attorney.  Here’s the general way any recovery is apportioned.

• Out of the gross recovery, your attorneys’ fees and costs of suit are taken out first.  OWCP will only allow a “reasonable” attorney fee - traditional rates of 33% - 40% of the gross recovery will, in all likelihood, be considered reasonable.
• Out of the remaining amount, you will be permitted to retain 1/5th , or 20%.
• After these amounts are subtracted,  OWCP will compare the recovery amount remaining to the amount of benefits already paid out to you (called the refundable disbursements).  If the refundable disbursements are less than the amount of recovery remaining, then this amount (called the surplus), and which includes government attorney fees, will be yours to keep.  However, if you are still entitled to any OWCP benefits at the time of the recovery, those benefits will be reduced (or credited) dollar for dollar against the amount of surplus you retain.

A couple of points - if you received Continuation of Pay (COP), you will not be required to pay this back to OWCP (nor will the amount be counted as a refundable disbursement).  This is because COP is not compensation for subrogation purposes.

If your recovery includes recovery for individuals other than yourself (for example, damages recovered for loss of consortium to your spouse), then OWCP has complicated “allocation” rules. These rules are meant to recognize that OWCP is entitled to reimbursement for benefits paid, but also that it would not be just to require you to reimburse the entire recovery.

Third party claims can become very complex, very quickly.  A mistake on your part can have significant negative financial repercussions for you.  It is best to consult with a lawyer who is familiar with OWCP claims if you have questions about a claim of this nature; contact the Attig Law Firm, PLLC, if you would like to consult with an attorney about your OWCP third-party claim

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.

Many Federal Employees are also U.S. Veterans with a service-connected disability. What happens when a Veteran with a service-connected disability gets injured on the job - does he/she have to give up the OWCP or VA benefits?

Generally speaking, you can collect both benefits at the same time, as along as the two injuries are completely separate, unless…

1. the on-the-job injury (or, god forbid, death) results from an injury that the VA has held was service-connected; or,
2. when the VA gives a veteran an increased impairment rating due to an on-the-job injury

In the case of Number 2, your election will only be between the increased portion of the VA benefit and the OWCP benefit - not the whole VA benefit.

For example, say you injured your back lifting in the Army. The VA gives you a 30% disability rating. Later, you injure your back lifting heavy mail trays at work as a civilian employee with the Postal Service. You will be required to elect between the increase in VA benefits (30% to 70%) or the OWCP disability benefits. You will not have to elect as to the compensation for the first 30% rating by the VA.

The election between OWCP and VA benefits can be tricky, and can have significant repercussions if you don’t make the election. It is best to consult with a lawyer who is familiar with OWCP claims and/or a VA Benefits attorney or a Veterans Service Organization when making this decision.

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.

The general public is not nearly as sympathetic to disabling mental health conditions as they are to disabling physical conditions.  That’s the prejudice that those who suffer from mental health conditions are up against.

I was reminded of this in a recent hearing.  Our client had a severe mental health condition, and had been out of work for several weeks to seek treatment of this condition - she was heavily medicated and under the frequent care of mental health professionals for the entire time.   When her management thought she was out of work too long, they fired her.  Setting aside the fact that our position was that management violated the Family and Medical Leave Act (FMLA) by denying her FMLA request and firing her, it was clear to us that the motivating factor was the client’s mental health condition.

On the stand, her first and second line supervisor both testified that they knew she had the serious mental health condition. They both testified that they knew she was out of work to get treatment for that condition.  They both testified that they knew she could not perform at least one of the essential functions of her job during the time she was seeking treatment.  But, when asked if the saw her condition as a disability, both said no.

When the first witness (the client’s immediate supervisor) said she didn’t view our client as disabled despite knowledge of the above facts of her mental health condition, I violated the cardinal rule of Cross-Examination, and asked this question: Why?  The answer didn’t really shock me all that much, unfortunately. I’m paraphrasing here but the witness told us she didn’t view our client’s mental health condition as disabling “because I have friends with this mental health condition and they’re not disabled.”

[Insert sound of screeching record here]

Did she have any medical experience?  No.  Did she have any medical training? No. Did she have any medical expertise whatsoever? No.  All she had was her narrow-minded belief that because her friend wasn’t disabled, that our client couldn’t be.

[This same supervisor, by the way, testified at great length about how benevolent she was to the disabled, listing example after example of how she had gone out of her way to help the disabled.  After I got over my disgust with her “I-have-friends-that-are-black-so-I-can’t-be-a-racist” explanation, I realized that most,  if not all, of her examples dealt with physical disabilities].

Mental health conditions are just as serious as physical disabilities. They are just as limiting - and in many ways more limiting - than physical disabilities.  Yet society, as a general rule, shuns the mentally disabled.  Malingerers, weaklings, fakers, wimps…those are, unfortunately, the general public perceptions of those with mental health disorders.  Though we never went deep enough in the cross to explore this, I would be willing to bet that this manager - whether she would admit it or not - viewed our client as ‘weak’ because she had a mental health disorder.

The case settled midway through the hearing - hopefully the Defendants were motivated to settle because they finally realized  that the Americans with Disabilities Act and the Rehabilitation Act were passed into law for the very purpose of protecting individuals with disabilities - even  those with mental health disabilities - from this type of bigotry.

A recent experience in an MSPB Hearing reminded me of one of the most important tenets of advocacy before the MSPB: always read the Judge’s Orders. Let me tell you what happened.

At the opening of the hearing, the Agency called its first witness to testify. This particular witness was on our witness list, but not on the Agency’s witness list. When this is the case, the Agency cannot usually conduct a direct exam of that witness. I objected to the Agency calling one of our witnesses in its case in chief (most times I wouldn’t object to something like this, but in this matter, I was concerned that it might affect our case strategy a tiny bit). The Agency responded by saying that no, in fact the witness was on the Agency’s witness list, and they were entitled to call the witness in their case in chief.

The Judge looked back at her Summary of Pre-Hearing Conference, and sure enough, the witness was identified as an Agency witness.  However, looking back at our Pre-Hearing Submissions, the Agency had never sought to even call the witness.   The Judge made the (benign) mistake of ruling that the Agency had identified the witness for their case in chief. Nobody caught the error - and guess what? The Judge’s ruling in the Summary of Pre-Hearing Conference generally governs everything that happens at the hearing of the case.

Now, in this case, the error turned out to be harmless - very embarrassing, but harmless.  The witness was, in fact, more helpful to our case on direct exam then she ever could have been on cross, for reasons I’m not going to go into on a public forum.

The morale of the story:  always read the Judge’s Orders. If you do not feel that the Judge’s Order is correct, you usually have ten (10) days from the date of the Order to file an objection and/or a Request for Correction. If the Judge’s “mistake” is significant - do not hesitate to object to the Order and seek a correction of the Order.

That can be a pretty big “IF”.  Don’t challenge every mistake for the sake of having a “perfect record”.  If the mistake won’t affect the outcome of the case, it is probably not worth the effort to change it.   Moreover, if the mistake is inconsequential, objecting and/or trying to correct the mistake may only serve to alienate the Judge.

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.

An increasing number of cases before the Board seem to involve the issue of constructive suspension. What is a constructive suspension?

A constructive suspension occurs when, through no fault of her own, an employee is absent from work for more than fourteen (14) days, with a loss in pay. A constructive suspension can only occur when the Agency - not the employee- initiated the absence. If the employee voluntarily initiates an absence, then there is no constructive suspension.

At hearing before the MSPB, the employee-appellant has the burden of proof in a constructive suspension case. That burden is to show, by a preponderance of the evidence, that the absence was involuntary.

A common example of a constructive suspension occurs when a federal employee is found to be fit to return to work by OWCP. When an employee requests work within his medical restrictions, the Agency is bound by policy, regulation, or contractual provision to offer available work to the employee. If the Agency fails to make such an offer, the employee’s continued absence for over 14 days constitutes an appealable constructive suspension.

Once the absent employee makes a non-frivolous allegation that he was able to work within certain restrictions, that he communicated his willingness to work, and that he agency prevented him from returning to work, the burden of production shifts to the Agency. (A burden of production differs from a burden of proof. Under a burden of production, the Agency need only show evidence of a certain point, not prove it to a legal certainty). The Agency’s burden is to produce evidence to show that there was no work available within the employee’s restrictions, or that it offered such work to the employee and he declined it.

If the agency meets its burden of production, then the appellant must present sufficient rebuttal evidence to meet his overall burden of proof.

Another example of a constructive suspension occurs when an employee is suspended, without pay, for more than 14 days while the Agency conducts an investigation of misconduct. Most Agencies have figured that the suspension during an investigation creates an appeal right, and now suspend employees with pay while they are being investigated.

If you are a federal employee, and believe that your employing Agency has constructively suspended you, you should contact a law firm such as the Attig Law Firm, PLLC, that has experience representing Federal employees before the Merit Systems Protection Board (MSPB)

A client of the Attig Law Firm appears to have prevailed in her appeal to the Merit Systems Protection Board today. We received a preliminary ruling yesterday indicating that an Administrative Judge intends to rule in our Client’s favor on the question of whether or not our client was entitled to a particular benefit of federal employment. The actual ruling will likely be issued sometime in early 2008, after a hearing on the discrimination portion of our client’s claims.

Our client is the wife of Donney (last name omitted), who is now deceased. Donney served our country in Vietnam, where he received the Purple Heart with Oak Leaf Cluster, and was exposed to the Agent Orange that ultimately led to his untimely death. After leaving the armed services, Donney continued to serve his country for 30 years as a civilian employee of a Federal Executive Agency (we will not disclose the Agency due to the pending litigation).

In early 2006, Donney entered the hospital in what turned out to be his final illness. Days prior to his death, his wife, acting under a Durable Power of Attorney, retired her husband from civilian service and elected an Alternative Funded Annuity (AFA) pursuant to his direction years earlier. The AFA is a benefit available to retiring federal employees, with less than 12 months to live, that allows the retiring employee to take 50% of their annuity in a lump sum, and the other 50% paid out in monthly installments.

The Office of Personnel Management rejected the retirement application and refused to pay the lump sum benefit - a substantial sum of money. OPM’s rationale for rejecting the retirement and AFA election was that OPM claimed that Congress did not permit them to recognize the Durable Power of Attorney created under color of State law. OPM tried to argue that they had a long history of requiring the employee alone to request retirement and elect an AFA. Interestingly, OPM could not identify a single other case where it denied a benefit applied for through a Durable Power of Attorney.

After a hearing in October before the Merit Systems Protection Board, an Administrative Judge disagreed with OPM and issued a preliminary ruling finding that our client was entitled to be retired under a Durable Power of Attorney and was entitled to have received the AFA.

In addition to the impact of this ruling on our client, this issue has implications for every Federal government employee – if you are among the tens of thousands of Federal employees who has created a Durable Power of Attorney as part of your estate planning, OPM should not be able to ignore your Durable Power of Attorney’s right to act in your stead in the event you become medically or mentally incapacitated.

The case is not over yet. In January 2008, the MSPB is holding a hearing on the claim that OPM’s decision to deny benefits in this case was a violation of the Title II of the Americans with Disabilities Act (guaranteeing that public-service employment benefits shall be administered in a non-discriminatory manner), and/or the Age Discrimination in Employment Act (ADEA).

We’ll keep you posted on any developments. If OPM has rejected your application for a retirement benefit, or any other public service benefit, because it was made while acting under a Durable Power of Attorney, please contact an MSPB attorney, such as the Attig Law Firm, today.

After significant consideration and evaluation, the Attig Law Firm, PLLC, will begin representing US Veterans in their disability benefits claims before the VA and the Court of Appeals for Veterans Claims.

After researching the ins and outs of the VA disability benefits systems, it became clear that a represented Veteran can have an entirely different experience before the VA and the Court of Appeals for Veterans Claims than a non-represented Veteran typically has.

Given the high volume of disabled veterans returning from the current war, and the high volume of veterans from prior wars who are neglected or ignored or simply lost in the VA’s system, the need for legal representation of Veterans is greater than ever. There are some limitations on when an attorney can represent a Veteran in claims such as this, but in June 2007, the rules were relaxed slightly to enable more Veterans more access to legal counsel. (As an aside - can you believe this - the Veterans who put their life on the line for their country are not allowed to hire attorneys for a portion of the claim process? It’s a ridiculous rule, isn’t it?)

The Firm will charge no consultation fee to review a Veterans’ claim for benefits. If we offer to represent a Veteran, we will work entirely on a contingency basis in the Veterans’ case.

Over the coming weeks and months, the Firm’s website will be redesigned to incorporate the addition of the new practice area. In the meantime, if you are a veteran in need of assistance with your disability benefits claim, please contact an attorney with the Attig Law Firm, today.

Another client of our Firm received a favorable outcome before the Merit Systems Protection Board (MSPB).

This individual was a 3-decade veteran of the United States Armed Forces and a Federal Agency that we will not disclose due to the nature of the case. Earlier this year, the Office of Personnel Management (OPM) reduced our client’s retirement annuity when he reached the age of 62. When he separated from civil service, he did not pay a deposit for his post-1956 military service; as such when he reached age 62, OPM reduced his retirement annuity. Federal employees with prior military service are (or should be) acutely familiar with this event, and know it as the “Catch-62” provision.

Typically, the MSPB has found that so long as an employee is informed of the right to make the deposit and the consequences of not making the deposit, then there is no remedy when the Catch 62 provisions are triggered. In certain cases, however, the Board may direct OPM to waive the time limitations and allow the employee to make the deposit and receive the benefit. Those cases are reserved for situations where it is clear that the employee was never advised of the right to make the deposit or is affirmatively misled by his employing Agency or OPM about the consequences of not making the deposit.

In this case, both scenarios occurred. Our client was not only retired in a very bizarre way - the standard retirement application was not provided to him, and a personnel officer in his Agency advised him that he wouldn’t be entitled to the increased annuity anyway.

The Firm’s aggressive use of the Freedom of Information Act (FOIA) and other pre-discovery tools were instrumental in producing enough documentation to prove these facts at a hearing. Shortly after the Pre-Hearing Conference in the case, OPM agreed to rescind its decision reducing the annuity and has allowed our client to make his military deposit. As such, the MSPB dismissed the case in favor of our client.

The favorable outcome will increase our client’s retirement annuity at least $10,000 per year for the rest of his life. Read more about Catch-62 here.

If OPM reduces your annuity at age 62 under the Catch 62 provisions, do not hesitate to contact an MSPB attorney as soon as you receive word from OPM. Despite the standardized retirement forms used since the early 1990’s, there are still too many Federal employees who are misled or misinformed about their right to this benefit of federal employment.