Developments at the MSPB: On November 18, 2016, the Merit Systems Protection Board issued its decision in Hess v. U.S. Postal Service, 2016 MSPB 40. The Board affirmed its authority to award compensatory damages in mixed cases where discrimination is alleged.
When the Board was created by the Civil Service Reform Act of 1978 (CSRA), it was not given compensatory damages authority for mixed cases because federal EEO law did not allow for compensatory damages until the Civil Rights Act of 1991. In the years after 1991, the Board had relied on the EEOC's caselaw as its basis for awarding compensatory damages in appropriate cases where the Board found in favor of an appellant alleging an affirmative defense of discrimination.
This connection was problematized by the Board's 2015 decision in Savage v. Dept. of the Army (previously analyzed in this blog), which partially decoupled discrimination affirmative defenses from the EEOC's caselaw. Based on Savage, the Administrative Judge below had ruled that the MSPB had no authority to award compensatory damages under its CSRA authorities. The Administrative Judge had certified the ruling to the Board on interlocutory appeal.
On appeal, the Board reversed. The Board clarified that Savage instructs that mixed cases are to be decided under the EEOC's substantive standards for discrimination (to which the MSPB defers), but applying the MSPB's appellate procedures. As the EEOC has previously held that the MSPB holds the authority to award compensatory damages in appropriate mixed cases, the MSPB defers to the EEOC and relies on the EEOC's holding as its basis to continue awarding compensatory damages in appropriate cases.
In a footnote, Member Robbins stated that he does not believe that the MSPB has express statutory authority to award compensatory damages--but that he did not believe that the Hess case was the proper vehicle for addressing the issue.
If you are federal employee facing an adverse action, including one which you believe might be discriminatory, and wish to discuss your rights, contact Passman & Kaplan, P.C. to request an initial consultation.