The growing body of law is a pliable, ever-changing process, and where appropriate, it is the implied duty of the attorney to apply arguments and persuade by analogy. Sometimes, actions by agencies which, in one particular context, may be deemed as a negative factor, yet in the context of filing for disability retirement, it can be turned around and applied as “proof-positive” that, indeed, it only further shows that one’s medical condition has impacted one’s ability to perform the essential elements of one’s job.
Thus, while an employee may be placed upon a PIP (“Performance Improvement Plan”) or placed on LWOP and subsequently terminated and separated from federal service based upon unacceptable attendance (and in such termination cases, perhaps the Bruner Presumption would not be applied in a technical sense), it is appropriate to argue to the Office of Personnel Management, and further, to the Judge at the Merit Systems Protection Board, that while the technical application of the Bruner Presumption may not apply, nevertheless, such Agency actions are indicators of the acknowledgment and concession, that the employee suffered from a medical condition, that the medical condition indeed impacted his or her ability to perform the essential elements of the job, and that is why unacceptable attendance and/or a PIP plan was initiated. Negative agency actions, in the context of applying for disability retirement, must be interpreted and argued in the best light possible, in each instance.
Robert R. McGill, Esquire