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.

Are You Entitled to Law Enforcement Officer Retirement?

The issue of Law Enforcement Officer (LEO) Retirement is on the minds of many federal employees as they make decisions regarding the planning and timing of their retirement. Federal employees pay into their retirement through deductions from their paychecks. LEOs are entitled to a greater amount of money in their pensions and pay additional paycheck deductions to earn that right.

A most disturbing and not so uncommon event occurs when the federal employee nearing retirement learns for the first time that although he or she has paid the additional premium to earn the LEO status, the government now challenges the employee’s LEO retirement status, claiming that the employee should never have been classified as LEO. The government then contends that it made an error in accepting the higher paycheck deductions and is prepared to return the increase in premiums back to the employee with interest; however, the employee loses his LEO pension.

To be eligible for LEO retirement, Federal law requires that the employees duties primarily involve the investigation, apprehension, or detention of individuals suspected of offenses against criminal laws of US. This is distinguishable from positions involving maintaining law and order, protecting life and property and guarding against or inspecting for violations of law do not qualify as LEO retirement credit.

The Federal Circuit in a 2001 case, Watson v. Department of the Navy, set out various parameters to determine whether an employee is considered LEO. It looked to the very purpose for the creation of the subject position. The court also looked to whether the criminal investigation, apprehension and detention duties occupy a substantial portion of the individual’s working time over a typical work cycle and whether such duties are assigned on a regular and recurring basis.

The Watson Court then created a five-part test to determine LEO status based upon whether the position involved: (1) guarding property or pursuing detained criminals; (2)a youthful entry age; (3) a mandatory retirement age; (4) physically demanding work; and (5) the employee being exposed to hazard or danger. The intent of the Watson decision was clearly to more narrowly define the requirements for LEO consideration. The court ruled that the Appellant, James A. Watson, had duties that involved investigation, apprehension or detention of criminals or suspected criminals, but that they were not his primary duties. As such, he did not prevail.

Federal employees who are planning retirement or who simply need to verify whether they are LEO eligible or not, should gather their position descriptions and have them reviewed by an attorney practicing in this area. The employee should also be able to write a summary for his or her lawyer indicating his or her daily duties and a list of witnesses who can attest to the employee’s primary and secondary duties. There is nothing worse than preparing for retirement, only to later to discover that your pension is considerably smaller than planned.

Have You Been Retaliated Against? Some Helpful Pointers

United States federal law prohibits employers from discriminating against employees on the basis of race, gender, national origin, religion, age and disability. It also prohibits employers from retaliating against employees who report discrimination to the company, file a discrimination claim with the Equal Employment Opportunity Commission or participate in an investigation regarding allegations of discrimination against their company. Unfortunately, many employers violate these laws and terminate, suspend or demote employees against these retaliation laws.

If your employer has taken some action against you that you believe may be retaliatory, you should consider the following factors to help assess whether you may be able to legally prove a retaliation claim:

How long have you been with your company?

The longer you have been successfully employed with your company, the greater the likelihood that your company’s claim of a deficient performance on your part is false. Think about it this way. If you had twenty years of raises, bonuses and no write ups, then complained about discrimination and a month later for the first time in your career, received a deficient performance evaluation, that’s a pretty good indication of retaliation. Compare that with an employee employed for less than a year with no prior track record of success with the employer. In the latter case, the employer will likely be in a stronger position to defend a claim of deficient performance.

What is your company’s written record regarding the alleged performance deficiencies?

Companies now more than ever are getting savvier about creating a written record regarding an employee’s deficiencies to lend credibility to a claim of deficient performance. If your company suddenly contends that you should be terminated for deficient performance, if you had no prior warnings, write ups or discussion about the alleged deficiencies, this could be a tell tale sign of retaliation. Think of it this way: high turnover is costly to a business and going through the hiring process and new employee training amounts to a large expense. Therefore, employers generally don’t like to terminate employees if they could first fix the performance issues.

Were there other employees who had the same deficiencies that weren’t disciplined?

In retaliation cases, a court not only studies what you allegedly did to earn discipline or termination, it reviews the performance and work habits of employees similarly situated to you at the same company. For example, if every employee in accounting made the same kind of error, but you the only one who complained about discrimination was demoted, that looks suspicious.

Should have been terminated versus would have been terminated.

Remember, the issue in retaliation cases is not whether you should have been fired. Plenty of employees should be fired, but aren’t for a litany of reasons. Perhaps the employer isn’t in a position to hire a new employee. Maybe the employer would rather have a deficient employee than take a chance on someone new. Or maybe the employer was willing to live with an employee who had some deficiencies as long as he wasn’t a trouble maker. The true issue is the reason the employer took the action against you and whether the employer would have actually terminated you, but for your discrimination complaint.

If you believe you have been a victim of retaliation, it is best to have your case evaluated by an attorney concentrating in this area of law. Wrongful termination by way of retaliation is against the law.