Attig Law Firm P.L.L.C

A thought occurred to me recently, and I thought I’d post my initial conclusion here - I’m sure I will post more on this topic as my thought and case law develops.Effective January 1, 2009, the Americans with Disabilities Amendment Act went into effect.  The changes in the amendment are substantial - without going into too much detail here, the Act restores the original intent of the ADA: to remove the barriers that disabled employees face in the workplace.

The MSPB and the EEOC will be struggling and grappling with issues of retroactivity and development of new case law for years.    In the short run, I expect to see more claims of disability discrimination and more settlement of these cases (to avoid generation of unfavorable case law).

 I also expect, over time, to start seeing OPM reject more applications for disability retirement. Why? Because your employing Agency must attempt to accommodate you before you are eligible for disability retirement through OPM.  

If the ADA Amendments Act will lead to the accommodation of more disabled employees - a large portion of whom simply took disability retirement because the Agency claimed they couldn’t be accommodated - doesn’t it stand to reason that OPM should lean harder on Federal Agencies to accommodate its disable workers?

This could put a lot of employees in a tough spot - they may get rejected for disability retirement by OPM because the Agency can - and should - accommodate their medical condition.  However, the Agency is denying them accommodation and not allowing them to work.  What is a Federal employee to do in this predicament?

If you are a disabled federal employee, and you are physically and mentally ready, willing and able to work, I recommend that you FIRST exhaust yourself in seeking accommodation from the Agency. 

This is different advice then you will get elsewhere, who advise that you should just apply for disability retirement right out of the gate. Why is this different? Because I am assuming, that if you are reading this post, you are ready, willing and able to work with your medical condition, but your employing Agency is being obstreperous and refusing to accommodate you.

If your medical condition precludes you from working, even with an accommodation, then this blog entry may not have any relevance to your situation.

What, then, are some ways to exhaust yourself in seeking accommodation at the Agency: 

1)  First, identify and request an accommodation.  The Attig Law Firm, PLLC, can help you to do this.

2) If your request is denied, file an EEO Complaint claiming disability discrimination through denial of reasonable accommodation.

3) If  you have been placed on LWOP for 15 days or more, and if legally appropriate, consider filing an MSPB Appeal claiming that the Agency has constructively suspended you and committed disability discrimination in doing so. Since a claim like this is a “mixed-case”, you will need to evaluate whether you should first go to the EEOC or the MSPB with a claim like this.

If you are in that group of employees who wants to keep working, but feel that your employing agency has left you no choice but to seek disability retirement because they have failed to accommodate you, you might consider this approach:

At the same time you file an appeal for disability retirement, file an MSPB Appeal challenging your Employing Agency’s decision not to accommodate you.  The grounds for this appeal would be “involuntary retirement:.

 Normally, the MSPB Administrative Judge is going to adjudicate and issue a decision on this appeal before you complete the OPM Disability Retirement process. The MSPB AJ has 120-180 days to issue a decision. By the time OPM receives your application, rejects it, receives your request for reconsideration, declines to reconsider, and provides notice of your MSPB Appeal right, your involuntary retirement will most often be concluded or near conclusion. So, consider this appeal as a type of “legal insurance” in the event that OPM decides that your Agency could and should have accommodated you.

If an Agency could have accommodated you, and failed to do so, that deprives you of the ability to freely choose to apply for disability retirement, and your application may be rendered moot by an Order of an MSPB Judge that your application for disability retirement was involuntary.

If, on the other hand, the Agency cannot accommodate you, and the MSPB finds as much in a written decision on an involuntary retirement appeal, then OPM is going to have a hard time arguing that you should not get disability retirement (solely on the grounds that you could have been accommodated by the Agency).

 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.

Before taking any action discussed in this post, you should consult with your attorney - or an attorney - to determine if that course of action is appropriate for you.  Every case is different, and what’s discussed in this post may not be right for you under the facts and law of your case.

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 have questions about reasonable accommodation, involuntary retirement appeals, or denial of disability retirement by OPM, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation. 

The Attig Law Firm continues in its goal to provide quality legal representation to disabled workers.

In keeping with that goal, the Firm has begun offering its services in the representation of applicants for Social Security Disability benefits.

More information will follow in the weeks and months to come.  In the meantime, if you would like to discuss your Social Security Disability application with an attorney at the Attig Law Firm, PLLC, please contact us to arrange a consultation.

Earlier this fall, Congress passed the Americans with Disabilities Amendments Act of 2008.  The Act takes effect on January 1, 2009, but most attorneys - private sector and government sector alike - are unfamiliar with the strictures of the new law.    

Most practitioners that are aware of the ADA Amendments Act are unsure of how the new law will affect disabled employees; generally, most of us are excited about the broadened protections that the ADA Amendments Act offers disabled employees.

 The new ADA Amendments Act is an attempt by Congress to “fix” 18 years of Supreme and other Court rulings that whittled away at the rights of our disabled workers.Here is a brief summary of what the ADA Amendments Act does:

1) It directs the EEOC to revise the portion of its regulations defining the term “substantially limits”.  The definition of a disabled worker has been widely accepted, generally, to be “…one who has a medical condition which ’substantially limits’ a major life activity…”  The phrase ’substantially limits’ has been defined so narrowly that proving oneself to be disabled is often a major hurdle;

2) It expands the definition of “major life activities” by including two non-exhaustive lists.  Until now, it was hard to prove that certain life activities were “major life activities” because they were not listed specifically in the statute or because Courts had previously not recognized the activity to be a major life activity. The new Act now includes activities the EEOC has recognized with activities that the EEOC has not specifically recognized (reading, bending, etc.). The new Act also includes major bodily functions as “major life activities” - functioning of the immune, digestive, neurological, respiratory, circulatory, and reproductive functions;

3) The ADA Amendments act clarifies that an impairment - that is episodic or in remission - is still a disability if, when active, it would substantially limit a major life activity.  This will greatly benefit individuals suffering from conditions such as cancer, epilepsy, migraines, and other such conditions;

4) The Act clarifies that if your employer treats you as if you are disabled - regardless of whether or not there is a substantial limitation - that you will be considered in the “protected group” for claims of disparate treatment or disparate impact or hostile work environment (although you won’t, obviously, qualify for a reasonable accommodation);

5) Instructs courts and employers to interpret - very broadly - the definition of disability.

The ADA Amendments Act of 2008 will greatly improve - hopefully - the protections for our disabled workforce.  If you believe that you have been terminated because of your disability, please contact the Attig Law Firm, PLLC, to schedule a telephone consultation.  

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 employee, some power. This information is not widely or easily accessible to many employees.

It is best to consult with a lawyer familiar with disability discrimination claims to discuss the facts and law of your particular case. The Attig Law Firm, PLLC, represents Federal employees around the country and disabled workers in North Texas in their disability discrimination claims against their employers.  

If you believe you were fired by your employer because of your disability, contact the Attig Law Firm, PLLC, to schedule a telephone consultation.  

After a full day of hearing, and 3 months of negotiations, the Attig Law Firm, PLLC, secured a very favorable settlement agreement from a Federal Government Agency in a case before the MSPB.

For confidentiality purposes, the name of the Agency will not be disclosed.In this case, our client claimed she was coerced into accepting early retirement under a VERA/VSIP program while suffering from a mental incapacity that rendered her unable to make an informed decision to retire.

The Agency claimed that the client was a poor performer who accepted the VERA/VSIP to avoid being fired for poor performance. 

After a full day of hearing before an MSPB Judge, the Agency agreed to settle the case. In general terms, the Agency agreed to reinstate the employee, “unwind” the VERA/VSIP, pay a lump sum in damages to the Appellant, and allowed the employee to continue in a new position with the Agency outside her old chain of command without any interruption of her service computation date.

This settlement took nearly 3 months to negotiate, due to the difficulty in unwinding a retirement action such as a VERA/VSIP, and is not be possible in every 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 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 have questions about constructive retirement appeals, or negotiating complex settlement agreements with Agency attorneys, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

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.