An adverse action may assist a federal employee in applying for FERS disability. This is generally referred to as the “Bruner Presumption”.
Federal employees faced with a removal based on medical inability should understand an agency action in this regard triggers the Bruner Presumption. Bruner v. OPM, 996 F.2d 290 (Fed. Cir. 1993). The Bruner Presumption may prove a benefit to the employee if he or she applies for disability retirement under the Federal Employee Retirement System (FERS). However, there is a common misperception by many, including many Human Resources Specialists, that the Bruner Presumption guarantees approval of a FERS disability application. It does not. But, it does shift the burden to the Office of Personnel Management (OPM). Specifically, in such circumstances OPM has the more difficult burden of disproving the applicant has a disability instead (5 CFR 831.502) of the applicant proving he does have a disability. In essence, it is a “prima facie” case, in that, by having your Agency remove you based on inability to perform your job (essential functions), it is considered a valid case “on its face”. But, not a guarantee nevertheless.
The Merit Systems Protection Board (MSPB) has also held the Bruner Presumption also applies where “removal for extended absences is equivalent to removal for physical inability to perform where it is accompanied by specifications indicating that the decision to remove was based on medical documentation suggesting that the appellant was disabled and unable to perform her duties.” McCurdy v. OPM, DA-844E-03-0088-I-1 (April 30, 2004), citing as authority Ayers-Kavtaradze v. Office of Personnel Management, 91 M.S.P.R. 397 (2002). In other words, even if the agency removes you for Absence(s) Without Leave (AWOL), the affected employee may still be able to obtain a Bruner Presumption if he can prove absences were due to physical inability to actually perform the duties of the position.
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