FEDweek

MSPB Affirms Power to Award Compensatory Damages

The MSPB has affirmed that it has the authority to award compensatory damages to a federal employee in a case involving an alleged discriminatory or retaliatory personnel action, saying a 2015 decision made no change in that policy and that a hearing officer erred in refusing to consider an employee’s request for such a cash award.

MSPB made that ruling in a case in which an employee alleged sex and disability discrimination, reprisal for EEO activity and reprisal for whistleblowing. While the appeal was pending, the agency rescinded the removal action. The hearing officer then dismissed the appeal as moot but the employee continued to press for compensatory damages.

The three-member merit board ordered the hearing officer to hear the claim for damages, saying it has made such awards under long-standing practice, a policy that further was upheld in 1999 by a U.S. Supreme Court decision.

“The agency’s complete rescission of the removal action did not afford the appellant all of the relief available before the Board,” it said in sending the claim back for reconsideration.