Thursday, May 28, 2015

Fourth Circuit reinstates Foster and Boyer-Liberto cases

This month, the U.S. Court of Appeals for the Fourth Circuit issued two watershed decisions advancing the rights of employees to be free of harassment and retaliation.
On May 7, 2015, the full court (sitting “en banc”) reinstated the racial harassment claims of Reya Boyer-Liberto. The court recognized that it was changing the court’s past requirements for harassment claims. The court now recognizes that even a single incident of harassment may be actionable if it is sufficiently serious.
On May 21, 2015, a three-judge panel reinstated the retaliation claims of Iris Foster. The court held that a Supreme Court decision requiring retaliation to be the “but for” cause of an adverse action does not change the ways employees can show their right to a trial on their retaliation claims.
In September 2010, Reya Boyer-Liberto worked as a cocktail waitress at the Clarion Resort Fontainebleau Hotel in Ocean City, Maryland (the “Clarion”). She is African-American. A Caucasian manager twice called her a “porch monkey” and threatened her job. After Boyer-Liberto reported this harassment to higher-ups at the hotel, its owner fired her.
When Boyer-Liberto sued, the judge dismissed her case, relying on the Fourth Circuit’s 2006 decision in Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006). In Jordan, the court affirmed the dismissal of a racial harassment claim involving another racist remark comparing African-Americans to monkeys. “[N]o objectively reasonable person could have believed that, in reporting the incident to management, Jordan was opposing an unlawful hostile work environment,” the court said in Jordan.
Boyer-Liberto appealed. Initially, two of the three judges voted to affirm the dismissal of her claims. However, this time the full court agreed to review the decision.
The Fourth Circuit now says that “an isolated incident of harassment, if extremely serious, can create a hostile work environment.” Therefore, reporting the incident can also be protected from retaliation. The court recognized that it was overruling Jordan.
Salisbury, Maryland, attorney Robin Cockey represented Boyer-Liberto through this long ordeal. Attorneys Stephen Z. Chertkof and Douglas B. Huron of Heller, Huron, Chertkof & Salzman, Washington, D.C., and Ilana Gelfman and Francis D. Murnaghan of the Public Justice Center in Baltimore, Maryland, wrote an amicus brief for the Metropolitan Washington Employment Lawyers Association (MWELA) and the Public Justice Center. The federal Equal Employment Opportunity Commission (EEOC) also submitted an amicus brief.
The Foster case began in 2007 when the University of Maryland Eastern Shore (UMES) hired Iris Foster to be a campus police officer. Even before she started, supervisor Rudolph Jones began sexually harassing her. He spied on her while she was fitted for a new uniform. After she started, Jones made lewd and suggestive comments, kissed her, pinched her and hugged her without her permission. We earlier described his conduct as “pestering her for sex”.
Attorneys Denise Clark and Ellen Renaud (from the Swick & Shapiro firm) of Washington, DC, joined me in writing an MWELA amicus brief in support of Iris Foster’s claims.
Last week, the Fourth Circuit panel agreed that the Supreme Court’s holding in University of Texas Southwestern Medical Center v. Nassar is not as broad as the lower court thought. We argued in an amicus brief to the court that while Nassar set the standard of causation, it did not affect the existing law about the methods of proving retaliation. We were aided by the Supreme Court’s decision in Burrage v. U.S., in which the Court said that a “but-for” cause only has to be the straw that broke the camel’s back.
In Foster, the court’s panel limited its analysis to upholding the famous McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting analysis. The court uses this analysis to decide if a plaintiff has presented enough evidence to warrant a trial. While the Supreme Court has explained that this analysis is just one of many ways to prove unlawful discrimination (see Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978)), the Fourth Circuit omits this point.
Still, the court makes clear that Nassar would not have modified the McDonnell Douglas analysis without saying so explicitly. Since the Nassar opinion does not say it was modifying McDonnell Douglas, then the Fourth Circuit will continue to utilize McDonnell Douglas. While our amicus had suggested that this outcome flows naturally from the remedial purpose of the Civil Rights Act, the Fourth Circuit’s more limited reasoning is still plenty sufficient to reinstate Foster’s retaliation claim.
In footnote 10, the opinion notes that other circuits have split on the issue, with the Second and Fifth Circuits agreeing that Nassar does not affect analysis of a prima facie case, and the Tenth Circuit disagreeing. The Sixth and Eleventh Circuits have issued decisions going both ways.
Causation in retaliation cases can be established in a variety of ways. One common method is through temporal proximity. If the boss fires you shortly after you raise a concern about complying with the law, then a jury can conclude that you were fired because you raised that concern.
In footnote 16, the court accepts an argument that Foster’s attorney and our amicus made: temporal proximity can be measured from any protected activity – not just the first protected activity. The court rejected a claim by the employer that temporal proximity should not apply because Foster made her initial complaint of sexual harassment many months before she was fired. Since Foster had made a new complaint of retaliation in scheduling shortly before her termination, the court found temporal proximity does support her claim of causation.
Sadly, the court did not reinstate Foster’s original claim of sexual harassment. It found that UMES did not have to take any action in response to a prior employee’s sexual harassment complaint against Jones, because a state agency had dismissed that complaint. Also, the court found that the employer’s action of telling Jones to stop, and separating him from Foster, was sufficient to get the harassment to stop. Still, the court did reaffirm the holding in Paroline v. Unisys Corp. that employers will be liable when they have knowledge of an employee’s prior harassment and should have anticipated that he would commit future harassment against the plaintiff.
The overall outcome is very positive for Iris Foster who now will get her day in court to hold UMES accountable for her termination. Washington, DC, attorney Leizer Goldsmith represented Foster throughout this case.

By Richard Renner

Monday, May 18, 2015

Marijuana's Legal in My State - So May I Use It and Keep My Security Clearance?

Several states have made it legal to possess and use marijuana.  So for federal employees and contractors who hold or need security clearances, does that mean the game has changed?  The short answer is “no.”  

For security clearance holders and applicants, there are two issues: First, current drug users might compromise classified information under the influence. If their use is frequent, their use will be considered in the same way as a heavy drinker who get inebriated regularly.  Second, if purchase, possession and use are crimes, then what does that say about the person’s trustworthiness?

Drug use is also at issue for federal employees, even those who don't have or need a clearance.  Executive Order 12564, dated September 15, 1986, establishes the U.S. Government as a drug-free workplace. It declares that “persons who use illegal drugs are not suitable for federal employment.” This applies to all federal employees, not just clearance holders.  Job seekers for federal employment are not barred if they used drugs in the past, but any illegal drug use at all by a current U.S. Government employee or member of the military is a violation of this presidential order. 

While only current illegal drug use is an issue for federal employees, even past use is relevant when it comes to having a security clearance.  The government’s position is that any use - past or present - of any illegal drug raises questions about an individual’s reliability and trustworthiness. 

Possession and use of marijuana has in the past always been a crime.  Possession of small amounts has typically been a misdemeanor under various state laws and federal law; possession of larger amounts, and sale of any amount, is typically a felony.  

Why is marijuana use such an issue when it comes to security clearances? Several reasons are typically cited:

- It may indicate that the person is unwilling or unable to abide by society’s laws. Eligibility for a clearance requires individuals who respect laws and regulations, even if they don’t agree with them.  It is considered that someone who will break the law regarding illegal drugs might break the law regarding handling of classified information. 

- Someone currently using illegal drugs may use poor judgment and unintentionally compromise classified information while “under the influence.”

- Illegal drug users may engage in other kinds of irresponsible or high-risk behavior, even when not under the influence of drugs.

- Active drug users may be psychologically or physically dependent.

For these reasons, anyone who indicates an intent to continue using illegal drugs in the future will be disqualified from holding a security clearance.  For those who have used drugs in the past, and who expressly disavow any intent to use illegal drugs in the future, adjudicators will consider the identity of the drug used, the recency, frequency, and circumstances, including age at first use, whether use has been solitary or social, means of acquiring the drugs, motivation for use, and behavior under the influence. 

There is no “bright line” rule in terms of  time elapsed since last drug use.  Adjudicators look at all of the facts and circumstances and do not apply a mechanical formula.  

For example, a recent college or graduate school graduate who used marijuana infrequently while in school, but who has not used any illegal drug in the past year, will typically be able to obtain a security clearance.  Some agencies, like the FBI and the Bureau of Alcohol, Tobacco and Firearms, have stricter rules.  Someone who began experimenting with marijuana at a later age raises more questions that adjudicators will pursue, such as the reasons for this change in conduct, how the individual obtained the marijuana, whether he or she has new friends who engage in other “undesirable” behavior, and whether the person has personal or psychological problems. 

Here's how one judge viewed a 28-year-old with a masters degree and several years of work experience, who admitted to using marijuana both in school and after becoming employed, but not in the past two years:

Applicant’s most recent marijuana use occurred in July 2012. As such, his illegal drug-related behavior could be considered not recent. However, Applicant illegally used marijuana after he started working for two employers with policies against illegal drug use, and he had full knowledge of those policies. He illegally used marijuana during a period of 11 years with varying frequency. He used marijuana and prescription medication to have fun with his friends and to relax. Applicant continues to associate with his illegal drug-using friends. He failed to establish that his questionable criminal behavior is unlikely to recur.

Defense Office of Hearings and Appeals, ISCR Case No. 14-03153 (April 6, 2015)

In contrast, another 28-year-old who last used marijuana 14 months previously had made some life changes that a judge viewed more favorably:

He has disassociated himself from drug-using associates and contacts. At a wedding last November, he saw a friend who is still using marijuana. Applicant informed his friend his life was changing and he no longer used marijuana. He no longer associates with the drug-abusing friends. He has made the decision that marijuana is no longer part of his future and is incompatible with his goals. He also signed a statement of intent with automatic revocation of clearance for any violation.

Defense Office of Hearings and Appeals, ISCR Case No. 14-02143 (March 27, 2015).  

Overall, adjudicators consider that past drug use is less significant than whether the individual is willing and able to remain drug-free in the future.  They must determine whether there is strong reason to believe that subject is no longer using drugs or involved with drugs, and a high probability that the subject will not become involved in the future. In judging the likelihood of future drug use, adjudicators consider the credibility of the subject’s expressed intentions.  They will consider whether the individual has made lifestyle changes, such as moving from a college to a work environment, and whether the individual still socializes with drug-using friends.  

In contrast, current clearance holders are held to a higher standard. Any use of an illegal drug while possessing a clearance is considered an “aggravating” factor. 

Now we turn to the effect of using marijuana in a state where it is now legal.  The problem is that under the Federal Controlled Substances Act, 21 U.S.C. § 800 et seq. (“CSA”), marijuana is treated like every other controlled substance, such as cocaine and heroin. There is no federal medical marijuana law. The federal government places every controlled substance in a schedule, in principle according to its relative potential for abuse and medicinal value. Under the CSA, marijuana is classified as a Schedule I drug, which means that the federal government views marijuana as highly addictive and having no medical value.

Pursuant to 21 U.S.C. § 844, “simple possession” of marijuana can result in a fine of not less than $1,000, payment of costs, and a jail term of up to one year. “Simple possession” means that the drug was for personal use, with no intent to distribute (sell). Any quantity of marijuana can be considered as simple possession. 

Last year, when several states and the District of Columbia legalized possession of marijuana, several agencies expressed concern as to whether federal employees’ use of marijuana in those states should be treated differently.  In order to assure that there was no ambiguity, the Director of National Intelligence issued a specific directive clarifying that marijuana use is still a crime under federal law, and therefore the federal government still considers it an “illegal drug” for all purposes: 

Changes to state laws and the laws of the District of Columbia pertaining to marijuana use do not alter the existing National Security Adjudicative Guidelines... An individual’s disregard of federal law pertaining to the use, sale or manufacture of marijuana remains adjudicatively relevant in national security determinations. 

“Adherence to Federal Laws Prohibiting Marijuana Use,” Director of National Intelligence Memorandum ES 2014–00674, October 25, 2014.

So for all federal employees, and for feds and contractors applying for or holding clearances, unless and until a federal law is passed decriminalizing marijuana, the short answer is, “Just Say No.”

       - this blog post was prepared by Elizabeth L. Newman. If you have questions about drug use in employment, please contact her at

Tuesday, May 12, 2015

Maryland's New False Claims Act

Last month, the Maryland General Assembly passed a long-overdue measure to strengthen the state’s False Claims Act. Maryland’s old version of the False Claims Act was limited to frauds against the state’s medical care programs. Past efforts to expand the law had failed, largely because of opposition from the state’s high-tech and research institutions.

When SB 374 takes effect, those who commit frauds against the State of Maryland will become liable for three times the amount they defrauded from the state, and up to an additional $10,000 for each fraud. This later provision will be particularly significant for ongoing schemes of fraud that involve repeating the same type of claim over and over again. Even if a small amount is at stake in each claim, the extra penalty can pile up.

Section 8-102(a), however, exempts from liability those who commit a fraud “related to state or local taxes.” Apparently, Maryland’s General Assembly seeks to curry favor with taxpayers by protecting them from this additional liability if they choose to commit a fraud against the state.

One of the big advantages for states in enacting their own False Claims Acts comes from a 2006 provision inserted into the federal False Claims Act by Sen. Charles Grassley (R-Iowa). This “Grassley Amendment” increases the state’s share of funds recovered under the federal False Claims Act by ten percent (10%), but only if the state has its own law that meets the minimum standards of the federal law. A state’s potential recovery under the Grassley Amendment can be millions or billions of dollars, depending on the federal government’s success in its own cases. About half of the states have qualified for this benefit.

However, it appears that Maryland’s new law still falls short of the requirements for the Grassley Amendment. The Inspector General of the Department of Health and Human Services published its requirements for qualifying for the Grassley Amendment. At 71 Fed. Reg. 48554 (published August 21, 2006), the HHS OIG listed among the requirements that, “If the State elects not to proceed with the action, the relator may conduct the action[.]”

Maryland’s SB 374, at Section 8-104(A)(7) and (B)(3)(II)(2), provides that if the state declines or withdraws from the action, then “the court shall dismiss the action.” This is the opposite of what the Grassley Amendment requires. It also limits the application of Maryland’s law to only those cases that the state Attorney General decides to pursue. Many frauds against the federal government have been proven by whistleblowers in cases they chose to pursue without any help from the government, and Maryland is going to lose the revenue that could flow from such cases. Maryland also stands to lose the millions of federal dollars that it could otherwise receive through the Grassley Amendment.

On the plus side, SB 374 creates a new protection from retaliation. Employees and contractors are protected when they investigate, initiate, testify in, or assist a lawful action against a fraud. Section 8-107(A). They are protected when they disclose a fraud to a supervisor or the government. They are also protected when they refuse to engage in a fraud against the state. This provision parallels a federal statute that provides the same protection for those opposing frauds involving federal funds. 31 U.S.C. § 3730(h).

Victims of retaliation may seek an injunction to stop the retaliation. They may get double their back pay and punitive damages. The law provides a statute of limitations of at least three years. Section 8-108(A).

Other shortcomings of SB 374 are that it omits a provision allowing the state to recover through alternative means. So, if a whistleblower files a lawsuit and the state decides to make a recovery through a related criminal case, for example, the whistleblower could get nothing.

If the whistleblower participated in the fraud, SB 374 permits a court to reduce the whistleblower’s award. Section 8-105(B). If the whistleblower is convicted of any crime in connection with the violation or the fraud claim, then the law bars the whistleblower from receiving any award, and requires that any award already paid be returned. These provisions fail to appreciate that it often takes a crook to catch a crook, and we want especially to encourage crooks themselves to report the frauds they know so well.

Section 8-105(C) permits a court to order a whistleblower to pay the defendant’s attorney’s fees if the court finds that the action was brought in bad faith. Unless the courts set a high standard for a showing of bad faith, then this provision could become a serious deterrent for whistleblowers considering whether to disclose a fraud through this law.

The law exempts elected officials from liability if they can show that the government knew about the fraud. Section 8-106(A). The law severely limits claims made by public employees who would know about the fraud through the performance of their duties. Section 8-106(B). This provision fails to recognize the role public employees can play in cases where their supervisors decide to let a fraudster get away with the fraud.

The law does not permit the state to recognize a whistleblower’s contributions once a public disclosure is made. Section 8-106(D). Finally, SB 374 prohibits any retroactive effect – allowing fraudsters to breath freer if they complete their frauds before the law’s effective date.

Maryland Attorney General Brian Frosh pushed for passage of this law, saying it is an important fraud-fighting tool that will recoup millions for the state budget. “The False Claims Act is a proven tool and I am confident it will recoup millions for the state, while creating a level playing field allowing honest businesses to thrive,” Attorney General Frosh said in a press release. “It has been effective for the federal government. It has been effective in states all over the country. And it is going to work in Maryland.”

Frosh reported that the state has recovered nearly $62 million over the past four years from Medicaid-related cases initiated by whistleblowers and others. The federal government recouped $5.6 billion in the 2014 fiscal year from its version of the False Claims Act, with $3.1 billion coming from cases involving banks and financial institutions.

Strangely, the Department of Legislative Services issued a Fiscal Note that looked only at the costs for the state in pursuing fraud cases. It estimates that the annual cost would be over $500,000, but makes no estimate of the potential or likely recovery for the state. The Department of Legislative Services made a similar overestimate of costs to the state for the Civil Rights Tax Fairness Act that passed in 2013.

Maryland’s False Claims Act passed the Maryland House of Delegates by a vote of 88-51. It is now waiting for the signature of Gov. Larry Hogan. Thereafter, the Maryland General Assembly would do well to revisit the False Claims Act and have it conform fully to the Model State False Claims Act published by Taxpayers Against Fraud.

By Richard Renner

Wednesday, May 6, 2015

The Burdensome Nature of Burden-Shifting When Seeking Disability Retirement

In the American system of jurisprudence, the party who asserts a claim generally has the burden of proving his or her entitlement to the benefit requested. Lindahl v. Office of Personnel Management, 470 U.S. 768, 791, on remand, 776 F.2d 276, 277 (Fed. Cir. 1985). This general rule also applies to federal employees who assert that they are entitled to disability retirement benefits. See Bruner v. Office of Personnel Management, 996 F.2d 290, 292 (Fed. Cir. 1993) (citations omitted). However, when it comes to actually providing evidence of entitlement to disability retirement, the law provides for a burden-shifting scheme that can be burdensome to navigate. The MSPB recently addressed this rather foggy scheme in Angel v. Office of Personnel Management, 2015 MSPB 33 (April 15, 2015).

The evidentiary confusion that is generated in disability retirement decisions results from the very nature of the disability retirement regulations. In order to qualify for disability retirements under the Federal Employees’ Retirement System (FERS), an employee must meet the following requirements:
  1. “(1) The individual must have completed at least 18 months of civilian service that is creditable under FERS, as defined in § 842.204 of this chapter;
  2. (2) The individual must, while employed in a position subject to FERS, have become disabled because of a medical condition, resulting in a deficiency in performance, conduct, or attendance, or if there is no such deficiency, the disabling medical condition must be incompatible with either useful and efficient service of retention in the position;
  3. (3) The disabling medical condition must be expected to continue for at least 1 year from the date the application for disability retirement is filed;
  4. (4) Accommodation of the disabling medical condition in the position must be unreasonable; and
  5. (5) The individual must not have declined an offer of reassignment to a vacant position.” 5 C.F.R. § 844.103(a).
Considering these criteria, it becomes apparent that “some involve evidence within the knowledge and control of the agency, and some within the purview of the employee. All are fact-dependent and subject to dispute.” Bruner, 996 F.2d at 293. In Chavez v. Office of Personnel Management, 6 M.S.P.R. 404 (1981), the Board, in setting the guidelines for disability appeals, “assumed that the party with the relevant evidence will come forward to produce it.” Bruner, 996 F.2d at 292. “‘[A]s to some material issues OPM or the employing agency may be in a better position than the applicant to adduce at least some of the relevant evidence, e.g. total creditable service or availability of other positions of the same grade or class in which the applicant might perform useful and efficient service.’” Id. (quoting Chavez, 6 M.S.P.B. at 352-53, 6 M.S.P.R. at 416).

In cases where the agency has already removed the person from service because of his or her condition, the person receives a “jumpstart” in the manner of an evidentiary presumption, which shifts to OPM the burden of proving that the presumption should not apply. For example, an employee’s removal “for physical inability to perform the essential functions of her position constitutes prima facie evidence that she is entitled to disability retirement benefits.” Harris v. Office of Personnel Management, 110 M.S.P.R. 249, 252 (2008) (citing Bruner, 996 F.2d at 294). What happens, though, when an agency has removed an employee based on an inability to maintain a regular work schedule, rather than on a physical inability to perform the duties of her position? Does the presumption still apply? According to the Board, the presumption will still apply if the specifications “indicat[ed] that the decision to remove was based on medical documentation suggesting that the appellant was disabled and unable to perform her duties.” McCurdy v. Office of Personnel Management, 96 M.S.P.R. 90, ¶ 7 (2004).

In Angel, OPM denied the employee’s disability retirement application, and the employee appealed to the MSPB. After a hearing, the administrative judge reversed OPM and held that the employee was entitled to disability retirement. OPM appealed and argued that the administrative judge should not have applied the Bruner presumption, because the appellant had not produced certain documentary evidence such as her SF-50, and the proposal or decision to remove her for her inability to perform the essential functions of her position. Angel, 2015 M.S.P.B 33, ¶ 6. The Board rejected OPM’s argument, stating that an appellant “is not required to produce any specific documentary evidence before the Bruner presumption applies.” Id. at ¶ 8. The Board found that the administrative judge appropriately analyzed the record, which showed that the appellant had been removed from service, and that there was no evidence which showed she “was separated from service for reasons other than the reduction in her schedule, which was attributable to her migraine headaches.” Id. at ¶ 9.

Once the Bruner presumption applies, OPM bears the burden to rebut the Bruner presumption by producing “evidence sufficient to support a finding that the appellant is not entitled to disability retirement benefits.” Harris, 110 M.S.P.R. at 252. “OPM can meet its burden of production by demonstrating a lack of objective medical evidence providing a reasoned explanation of how certain aspects of a particular condition render the employee unable to perform specific work requirements.” Id. at 253 (citation omitted). So how does an agency meet its burden of production of showing that the employee has not produced sufficient medical evidence of her disabling condition? This requires a positive showing of a negative condition. In Angel, the Board rejected OPM’s argument that the appellant did not produce sufficient evidence of her disabling medical condition. Angel, 2015 M.S.P.B. 33, ¶ 12. The Board has held that the lack of “objective medical evidence cannot be used as the sole basis for denying an applicant disability retirement benefits.” Id. at ¶12 (citing Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034, 1039-43 (Fed. Cir. 2007)). Rather, the Board may also consider testimony or written statements submitted by an appellant, including an appellant’s subjective evidence of pain that is supported by competent medical evidence. Id. In Angel, the Board considered appellant’s submission of medical records showing the onset, frequency, and treatment of her migraine headaches, the doctor’s limiting her to working 80% of her schedule, and the appellant’s own testimony that her migraine headaches prevented her from being able to perform the complex technical aspects of her position. Id. at ¶ 13. According to the Board, this was enough to warrant disability retirement.

If an agency successfully rebuts the Bruner presumption, this does not end the analysis, as a successful rebuttal is not dispositive of an appellant’s entitlement to disability benefits. Id. at ¶ 10. If an agency is able to meet its burden of production by demonstrating a lack of objective medical evidence, the burden of production then shifts again back to the appellant, who must rebut OPM’s assertion that he or she is not entitled to benefits. Harris, 110 M.S.P.R. at 253. An appellant may demonstrate eligibility for disability retirement benefits by showing that her medical condition either “(1) affected her ability to perform specific work requirements, prevented her from being regular in attendance, or caused her to act inappropriately; or (2) is inconsistent with working in general, in a particular line of work, or in a particular type of work setting.” Angel, 2015 M.S.P.B. 33, ¶ 13.

In Harris, the Board found that the appellant had not met her burden of showing she was entitled to receive disability retirement benefits, because her “medical evidence shows [only] that she has hypertension that is, at times, difficult to control and which can be exacerbated by stress. None of the medical evidence explains how the appellant’s hypertension prevents her from performing the duties of her position.” Harris, 110 M.S.P.R. at 253 (brackets added). In Angel, OPM apparently did not understand the appellant’s burden at this phase, and argued unsuccessfully that the appellant failed to establish her entitlement to disability benefits because she applied for full-time positions and held several part-time positions after she filed for disability retirement benefits. Clarifying the appellant’s burden of production, the Board stated that “the appellant was not required to show that her disability rendered her incapable of working all positions.” Id. at ¶ 13 (emphasis added). Rather, she just had to show that she could not render “useful and efficient service in her position and she has not declined a reasonable offer of reassignment.” Id. The Board found the appellant met this burden “by showing that her migraine headaches prevented her from performing the requirements of the position she held at the time of her application for disability retirement benefits.” Id.

After the burden of production has shifted back and forth three times between the appellant and OPM, the Board then considers the “totality of the evidence”–the evidence presented by both the appellant and OPM–in determining whether the appellant met his or her burden of persuasion of being entitled to disability retirement benefits by a preponderance of the evidence. Angel, 2015 M.S.P.B. 33, ¶ 10. This evidence may include “objective clinical findings, diagnoses and medical opinions, subjective evidence of pain and disability, evidence relating to the effect of the applicant’s condition on her ability to perform in the grade or class of position she last occupied, and evidence that the applicant was not qualified for reassignment to a vacant position at the same grade or level as the position she last occupied.” Harris, 110 M.S.P.R. at 253.

In federal disability retirement cases, keeping track of which party has the burden of production– and when it must produce–and the kind of evidence necessary to meet that burden, seems tantamount to a ping-pong match. Not keeping tabs on who is supposed to hit the ball can lead to a victory for the other side.

This blog post was written by Valerie Chastain.