We received word yesterday that another client, an employee of the Dept. of Homeland Security, prevailed in her MSPB Appeal.

Our client was injured on the job around 1999-2000. She recovered from that injury and asked the Agency to accommodate some of her remaining limitations. Because the limitations did not affect her performance of her essential job functions, the Agency accommodated her for nearly 2 years.In February 2005, however, the Agency arbitrarily decided to place our client on LWOP, claiming (without evidence and without any interaction with their employee) that her medical condition and its limitations rendered her unable to perform the essential functions of her job.

The Agency has kept her on LWOP at all times since February 2005. Our client appealed to the MSPB, claiming that she was constructively suspended, denied her restoration rights after recovery from an on the job injury, that the Agency committed disability discrimination in wrongfully discontinuing its reasonable accommodation, and that the Agency committed harmful error by not providing her any of the statutory protections that the law requires.

Yesterday, an Administrative Judge of the Merit Systems Protection Board (MSPB) issued his Initial Decision, holding that the Agency’s placement of our client on LWOP in February 2005 constituted a “constructive suspension”, and that the Agency’s abrupt and unsubstantiated discontinuation of a reasonable accommodation that worked constituted disability discrimination.

Once the Initial Decision becomes final, the Agency will be required to restore our client to the paid and active rolls of the Agency effective February 2005, restore all of her benefits (sick leave, annual leave, pension and TSP contributions, health benefits, etc.).

The Agency is also liable for compensatory damages – actual and non-pecuniary – due to the finding of disability discrimination.Given the severity of the harm that has continued for over 4 years, the Appellant’s compensatory damages are substantial. The Agency will also be liable for the Appellant’s attorneys’ fees and costs.

One of the best phone calls I get to make is the call to a client letting them know they got their job back, and that financial relief is on the way. This is particularly true in this case – our client stayed patient, calm and collected, and stayed the course for over 4 years, fighting an Agency that can – generously – be described as “cavalier” in its concern for its own employees (particularly disabled employees).

Nearly every attorney or manager at the DHS that this Firm has  worked with has been (or has a reputation in their local bar of being) some combination of cavalier, arrogant, rude, petty, uncivil, unnecessarily aggressive and unnecessarily confrontational. Perhaps its the result of a “We’re-The-Most-Important-Government-Agency-So-Don’t-Disagree-With-Us” mentality or culture at this Agency, perhaps it’s a lack of professional socialization, perhaps its the result of hiring too many young managers or attorneys without sufficient mentorship or leadership.  I don’t know. But it’s a problem at this Agency. If history is any indicator, it is a problem I suspect will cause significant angst for DHS in the next decade.

NOTE: As of May 2009, this case has been appealed by the Agency to the Full Merit Systems Protection Board, where the “appealable issues” have been briefed and are awaiting a decision.

NOTE: As of July 1, 2009, the Full Merit Systems Protection Board rejected the Agency’s Petition for Review, issuing the Final Decision of the MSPB.  The Appellant has filed her Compensatory Damages and Attorney Fees/Costs Petition.   The record on both matters will close in mid October 2009, and a Final Decision on the Damages and Fee Petitions is expected before the New Year.