Federal and Postal Disability Retirement: A Hostile Work Environment

Unfortunately, reality often outperforms and upstages any attempt at fictional characterization of the workplace.  Often, the meanness and temperamental behavior of a supervisor in the “real” workplace can never be properly represented by an actor’s attempt in a sitcom or a drama; the persistent, irrational, capricious and outright cruel behavior and acts of “the boss” or one of his/her underlings can never be accurately depicted in fiction.  Further, the reality of the consequences of such behavior can be devastating.  Workplace stress resulting from demeaning behavior, intentional acts to undermine, cruel and arbitrary acts against a specific employee, can all result in serious medical consequences.  

It is all well and good to talk about internal procedures — of filing an EEOC Complaint; filing a grievance; filing a complaint based upon discrimination, etc.  But beyond such agency procedures to protect one’s self, there is the problem of the eruption of a medical condition, be it Major Depression, Anxiety, panic attacks, physical symptoms of IBS, chronic pain, headaches —  some or all of which may result from such stresses in the workplace.  There is no diagnostic tool to establish the link between the medical condition and the workplace stress.  

For Federal and Postal employees thinking about filing for Federal Disability Retirement benefits under FERS or CSRS, there is the context of harassment & stress in the workplace, and then the medical condition which prevents one from performing one or more of the essential elements of one’s job. Sometimes, it is difficult to bifurcate the two.  That which is difficult, however, must sometimes be accomplished in order to be successful.  The origin of the medical condition may have to be set aside, because it “complicates” the proving of a Federal Disability Retirement application.  If one is contemplating filing for Federal Disability Retirement benefits, the story — however real — of the workplace harassment, may have to be left behind.

Sincerely, Robert R. McGill, Esquire

Federal Disability Retirement Benefits for Federal & Postal Employees: Peripheral Issues

The reason why it is important to keep the peripheral issues where they belong — outside of the primary focus of a Federal Disability Retirement application, and not inject such issues, complaints or narratives — is because they can have multiple unintended consequences.

If a Federal or Postal employee is engaged in collateral litigation, complaints, grievances or other outstanding administrative filings, including EEOC Complaints, lawsuits, formal grievances, MSPB appeals, etc., while for the most part such collateral filings will not directly or indirectly impact a Federal Disability Retirement application, they can if you directly inject such issues into the application for Federal Disability Retirement.

In other words, if in the Applicant’s Statement of Disability (SF 3112A) , you refer directly to an outstanding EEOC Complaint, then it may spring forth a red flag that your case is one of “situational disability“.  Just a thought.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Interaction with EEOC & Other Legal Processes

I am often asked if other legal processes already filed — an EEOC Complaint, a corollary adverse action being appealed, etc. — will have an impact upon a Federal Disability Retirement application.  My general answer is, “No, it will not have an effect upon filing for Federal Disability Retirement.”  The second question which often follows, is:  What if the EEOC filing contradicts the Federal Disability Retirement application?  While the full answer to such a question will differ from case to case, depending upon the peculiar and particular circumstances of each individual case and application, my standard response to the second question will often contain a responsive query:  Have you ever heard of an attorney speaking out of two or three (or four) sides of his mouth?  As attorneys, we make multiple (and sometime contradictory) arguments all the time.  I am not concerned with the factual or legal arguments in a concurrent/parallel EEOC case; my job is to make sure that my client obtains a disability retirement — and if it somewhat contradicts the arguments made in an EEOC complaint, so be it — for, after all, I’m merely an attorney, and such inherent contradictions only prove the fact that lawyers have at least four sides to every mouth.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Proper Paradigm

Whether we like to admit it or not, we all operate, in all segments of our lives, from a certain “paradigm” (reference Thomas Kuhn, Structures of Scientific Revolutions) or “world-view”. When it comes to Federal Disability Retirements, the majority of Federal and Postal workers who comes to me have a pre-formed, generally negative attitude about the chances of getting it. This is because they have heard too many horror stories; or they have had horrendous experiences with OWCP filings, or EEOC complaints, or other experiences which they then relate to how the disability retirement process must be.

Yet, all Federal and Postal employees must understand that the process of Federal Disability Retirement has many, many inherent advantages which make it different from other processes. For instance, the Merit System Protection Board has often observed, with respect to disability retirement, that it is distinguishable from other processes, because it is not — strictly speaking — an adversarial process between an agency and an employee; rather, the MSPB sees it simply as a single issue — that of an employee’s entitlement to disability retirement.

Further, the role of the Office of Personnel Management, while seemingly one of making things overly difficult for the individual, in reality has a very difficult time in ultimately justifying a denial. Why? Because they do not have a right to have a doctor of their own to examine the applicant/patient (note the difference with OWCP, where you can be sent to second, third, and sometimes fourth medical opinions by doctors chosen by DOL and paid by DOL). Thus, it is almost as if OPM must disprove a case filed by an applicant. Finally, it is difficult to attack a treating doctor of an applicant, unless there is something seriously wrong with the credentials or competence of the treating doctor. All in all, disability retirement for Federal and Postal Workers is a fair process — one which is a valuable benefit for the Federal and Postal Employee.

Sincerely,

Robert R. McGill, Esquire