Jury Verdict Amounts to Millions in Mogenhan v. Homeland Security

Today, a jury returned a verdict of $250,000.00 in the U.S. District Court of D.C. against the Department of Homeland Security (“DHS”) for retaliating against a former Secret Service employee. The case, Mogenhan v. Napolitano, had been in litigation for the past nineteen (19) years and the jury’s verdict has the potential to include attorney’s fees, costs and prejudgment interest, which could exceed well over one million dollars.

The Plaintiff, Ann Marie Mogenhan, worked at the Secret Service nearly two decades ago. Believing that she had been subjected to gender and disability discrimination, she filed a complaint against her supervisor with the Departmental Equal Employment Opportunity (“EEO”) in January of 1992. From February 1992 until October 1992, her supervisor retaliated against her for filing the EEO complaint by overloading her with work. Ms. Mogenhan, who suffers from a heat-triggered migraine condition, complained that the added stress from her supervisor made her extremely ill at work and was disastrous to her mental and physical health.

Initially, the case resembled something like David vs. Goliath. Sitting next to Ms. Mogenhan was her attorney Morris E. Fischer, Esq., a veteran Maryland and D.C. employment rights lawyer and Daniel E. Kenney, a recent law school graduate. DHS was represented by two Assistant U.S. Attorneys from the Justice Department and an Attorney from the Department of Homeland Security. Additionally, at closing arguments, which were held on Tuesday, April 14, the government had at least 10 attorneys in attendance.

The trial, which lasted 3 days, included testimony from various Secret Service agents and personnel. Plaintiff’s key witness was a decorated army veteran and a distinguished former Secret Service agent. The witness flew into D.C. from his home to testify on Ms. Mogenhan’s behalf that her supervisor had overloaded her with work.

After two days of deliberation the jury returned a verdict in favor of the Plaintiff. To compensate Ms. Mogenhan for her pain and suffering the jury awarded her $250,000.00 in damages. Additionally, under Title VII of the Civil Rights Act, Ms. Mogenhan is entitled to receive attorney’s fees and costs for the 19 years that she has litigated this case against the Secret Service. As stated above, that figure has the potential to exceed well over $1,000,000.00.

Throughout numerous hearings and appeals, Mogenhan’s vigilance and her counsel’s expertise prevailed despite government opposition and the subsequent verdict is not only a personal victory for the Plaintiff, but a legal victory for all federal employees faced with retaliation. We are pleased with the jury’s verdict and remain confident that it will withstand any appeal by the DHS.

Rape, Assault, and Harassment in the Military

As reported by the Washington Post:

“WASHINGTON — A federal lawsuit filed Tuesday accuses the Department of Defense of allowing a military culture that fails to prevent rape and sexual assault, and of mishandling cases that were brought to its attention, thus violating the plaintiffs’ constitutional rights.

Kori Cioca, in her lawyer’s office on Sunday, described being raped while serving in the Coast Guard. She is one of 17 plaintiffs filing a federal lawsuit against the Department of Defense.

The suit — brought by 2 men and 15 women, both veterans and active-duty service members — specifically claims that Defense Secretary Robert M. Gates and his predecessor, Donald H. Rumsfeld, “ran institutions in which perpetrators were promoted and where military personnel openly mocked and flouted the modest Congressionally mandated institutional reforms.”

It also says the two defense secretaries failed “to take reasonable steps to prevent plaintiffs from being repeatedly raped, sexually assaulted and sexually harassed by federal military personnel.”

Myla Haider, a former Army sergeant and a plaintiff in the suit, said she was raped in 2002 while interning in Korea with the military’s Criminal Investigative Command. “It is an atmosphere of zero accountability in leadership, period,” she said an interview.

Ms. Haider, who appeared with other plaintiffs at a news conference earlier Tuesday at the National Press Club, said: “The policies that are put in place are extremely ineffectual. There was severe maltreatment in these cases, and there was no accountability whatsoever. And soldiers in general who make any type of complaint in the military are subject to retaliation and have no means of defending themselves.”

In the complaint, Ms. Haider said she did not report her rape because she “did not believe she would be able to obtain justice.” But she said she joined the suit because she wanted to “address the systematic punishment of soldiers who come forward with any type of complaint,” whether it involves sexual assault or post-traumatic stress disorder related to combat.

The plaintiffs’ stories in the complaint include accounts of a soldier stripping naked and dancing on a table during a break in a class on preventing sexual assault, physical and verbal harassment, and the rape of a woman by two men who videotaped the assault and circulated it to the woman’s colleagues.

Geoff Morrell, a Pentagon spokesman, said in a statement that “sexual assault is a wider societal problem” and that Mr. Gates was working to ensure that the military was “doing all it can to prevent and respond to it.”

“That means providing more money, personnel, training and expertise, including reaching out to other large institutions, such as universities, to learn best practices,” Mr. Morrell said. “This is now a command priority, but we clearly still have more work to do in order to ensure all of our service members are safe from abuse.”

Though the suit, which was filed in Federal District Court in Virginia, seeks monetary damages, those involved with the case said their goal was an overhaul of the military’s judicial system regarding rape, sexual assault and sexual harassment.

“You should not have to be subjected to being raped or sexually assaulted because you volunteered to serve this nation,” said Susan L. Burke, the plaintiffs’ lead lawyer.

At the news conference Tuesday, Anuradha Bhagwati, a former Marine captain and executive director of the Service Women’s Action Network, called for a new system to improve accountability and provide other avenues for filing complaints.

“There are veterans who, after service, are literally reeling from post-traumatic stress” as a result of rape and sexual assault, she said in an interview. “It can be a lifelong process. We hear from veterans who are in their 50s and 60s who are still coping with the trauma of having been psychologically and physically tortured.”

Does the military have a culture of hostility to those who allege sexual harassment or assault? Further, what impact will this action really have on military justice outside of civil and criminal matters considered by civilian courts?

Disability’s New Definition

In early April this year, the Equal Employment Opportunity Commission (“EEOC”) issued guidelines on enforcement of the ADA (American’s with Disabilities Act) Amendment Act, which established a host of conditions as a certified disability, that has expanded the ADA’s protections to a wider array of employees in the private and public sector.

The EEOC’s recent articulation of what constitutes a disability does not require a physical or mental condition that severely restricts major life activities or and no longer views treatment that mitigate symptoms as limiting the impact of one’s disability. Further, should health conditions cause a substantial impact on bodily functions, that person would be officially considered as living with a disability. Such broad interpretation comes with a caveat: the revised definition is not retroactive, meaning that a person classified as disabled under the new guidelines could not pursue any disability discrimination suit that occurred prior to the new definition taking effect.

Some other key changes in the ADA:

• Directs EEOC to revise that portion of its regulations defining the term “substantially limits;”
• Expands the definition of “major life activities” by including two non-exhaustive lists: (1) The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); and (2) The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
• States that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
• Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
• Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
• Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

The ADAAA also emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.

Now, more than ever, the elements to prove discrimination based on disability tilt in favor of the Plaintiff, so if you have experienced discrimination on the job and find that your condition meets the criteria of being considered a disability, call us to set up a free 15 minute consultation to discuss your legal matters more comprehensively.