The agency, DHS, did not challenge the finding, but did question the $100,000 award. Image: djmilic/Shutterstock.com
By: FEDweek StaffThe MSPB has set precedent on money it can order agencies to pay to their employees who successfully challenge personnel actions against them on grounds of whistleblower retaliation.
In Case No. 2024 MSPB 7, the merit board told a hearing officer to reconsider monetary damages due to an employee based on a finding that the employee had been subjected to a hostile work environment after making protected disclosures. The employing agency, DHS, had not challenged that finding to the board but did challenge the award of more than $100,000.
The board noted that it is well settled that employees who prevail in whistleblower retaliation claims are eligible for compensatory damages, including for direct financial losses to the employee as well as for “nonpecuniary” losses such as emotional pain and suffering—but that such awards “are designed to compensate the appellant for actual harm, not to punish the agency.”
However, it said that “case law regarding compensatory damages in whistleblower reprisal cases is underdeveloped” and that it never had directly addressed such damages. The board said, though, that it has followed EEOC precedent regarding damages in other types of cases and that it will do the same in reprisal cases. “Accordingly, to receive an award of compensatory damages . . . an appellant must show that she has been harmed as a result of the agency’s unlawful retaliatory activities and must establish the extent, nature, and severity of the harm, as well as the duration or expected duration of the harm,” it said.
It added: “An award of compensatory damages for nonpecuniary losses should reflect the extent to which the agency directly or proximately caused the harm and the extent to which other factors also caused the harm. A nonpecuniary damages award should not be “monstrously excessive” standing alone, should not be the product of passion or prejudice, and should be generally consistent with the amount awarded in similar cases.”
It meanwhile noted that while EEO law sets a $300,000 limit on compensatory damages, “no such monetary cap exists” for an award under whistleblower retaliation law.
It told the hearing officer to reconsider the damages award in light of those principles.
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