If you have brought a claim of discrimination against your employer or filed an appeal to the Merit Systems Protection Board (“MSPB”), you may be entitled to recover damages and attorney fees. It is important to keep in mind that damages and attorney fees are not the same thing, and must be considered separately. Let’s start with damages.
First, there are different types of damages. For purposes of this article, two types of damages will be discussed: compensatory and consequential damages. In discrimination cases, there are “compensatory” damages. These damages are designed to compensate you for the harm you suffered due to the discrimination the agency put you through. Compensatory damages, according to the Civil Rights Act of 1991, include both monetary (also called “pecuniary” damages) and nonmonetary damages. Monetary damages may include out of pocket expenses you paid to see a doctor, such as travel, co-payments and other medical expenses. Nonmonetary damages include: loss of enjoyment of life, mental anguish, pain and suffering, stress, and inconvenience. Significantly, there is a cap on the amount of compensatory damages you can receive — $300,000.
“Consequential” damages arise in whistleblower cases. If you can successfully prove that you have been retaliated for whistleblowing, you may be able to recover “consequential” damages. These damages are different from compensatory damages in that consequential damages are only designed to provide such relief as to put you in the position you would have been in had the retaliation not occurred. Consequential damages include such expenses as medical costs (past and future) and travel costs. There is no statutory limitation on the amount of consequential damages that can be recovered. However, consequential damages do not include payments for pain and suffering, or other nonmonetary harm.
Generally, in order to be entitled to compensatory or consequential damages you must prove that the damages sought were caused by the agency’s discrimination or retaliation. To maximize your recovery of damages, you should keep accurate and complete records of any expenses or harm you suffer. It is also important to keep these records as organized as possible so that a judge can easily determine the amount and extent of your harm.
If you prevail in a discrimination case or successfully appeal to the MSPB regarding an adverse action or whistleblower case, you may recover the attorney fees and costs you have incurred. In a discrimination case, you must prevail on at least one of your claims to be entitled to an award of attorney fees. However, if you have multiple claims of discrimination and you only prove some of them, the amount of attorney fees and costs awarded may be reduced.
In order to recover attorney fees and costs in an appeal of an adverse action (such as a removal or demotion) to the MSPB, you must prove not only that you prevailed, but also that reimbursing your attorney fees and costs is “warranted in the interest of justice.” The MSPB decided in Allen v. USPS, 2 M.S.P.R. 420 (1980) that an award of attorney fees will be generally warranted in the “interest of justice” if one of five (5) criteria is met: (1) the agency committed a prohibited personnel practice (e.g., it retaliated against your for whistleblowing); (2) the agency’s action was “clearly without merit”; (3) the agency initiated the action against you in “bad faith;” (4) the agency committed “gross procedural error;” or (5) the agency “knew or should have known” that the action would not be sustained (for example, a removal is reduced to a 60-day suspension). In a whistleblower appeal, if you prove that you were subjected to retaliation for your whistleblowing activity, you will generally be able to recover your attorney fees and costs.