Lisa J. Hess v. United States Postal Service
2016 MSPB 39
| MSPB | 2016Background
- Hess was removed by the U.S. Postal Service effective September 27, 2013; she appealed and raised affirmative defenses including sex and disability discrimination, EEO reprisal, and whistleblower reprisal.
- The agency later rescinded the removal, expunged references, and restored Hess to her prior non‑pay status.
- The AJ initially dismissed the appeal as moot, finding no genuine issue warranting a hearing; the Board reversed in part on review, remanding for a hearing on discrimination and EEO retaliation claims (relying on Savage).
- On remand, the AJ certified an interlocutory question whether the Board lacks authority to award compensatory damages in discrimination/EEO reprisal mixed‑case appeals and ruled the Board lacked such authority, staying proceedings.
- The Board granted interlocutory review and reversed the AJ: it held Savage did not eliminate the Board’s practice of awarding compensatory damages in mixed‑case appeals and returned the case to the regional office for further adjudication.
Issues
| Issue | Plaintiff's Argument (Hess) | Defendant's Argument (USPS) | Held |
|---|---|---|---|
| Whether the MSPB has authority to award compensatory damages in mixed‑case discrimination/EEO reprisal appeals | Board has authority to award compensatory damages under the Civil Rights Act of 1991 when adjudicating mixed‑case appeals | The Board lacks authority to award compensatory damages (AJ initially so ruled) | The Board has authority to award compensatory damages in mixed‑case appeals; Savage did not eliminate that practice |
| Whether the agency’s rescission of the removal renders the appeal moot if compensatory damages are unavailable | If compensatory damages are available, rescission does not moot the appeal | If compensatory damages are not available, rescission would moot the appeal | Because the Board can award compensatory damages, the rescission does not render the appeal moot |
| Proper forum and interplay between MSPB and EEOC in mixed cases | MSPB must adjudicate discrimination merits and may award remedies including compensatory damages; EEOC retains review role | Agency relies on statutory scheme that allocates remedial authority to EEOC and courts | The CSRA/appeal structure contemplates MSPB adjudication of substantive discrimination law with deference to EEOC on substantive matters; MSPB may award compensatory damages consistent with that scheme |
| Effect of Savage v. Department of the Army on remedial authority | Savage did not change the Board’s remedial authority to award compensatory damages | Savage could be read to limit Board remedies to those expressly in CSRA | Savage did not abrogate prior Board practice; it left intact the Board’s ability to apply substantive discrimination law (including awarding compensatory damages) |
Key Cases Cited
- Savage v. Dep’t of the Army, 122 M.S.P.R. 612 (2015) (clarifies that Title VII substantive standards apply in MSPB mixed‑case appeals and that Board procedures control adjudication)
- Southerland v. Dep’t of Defense, 122 M.S.P.R. 51 (2014) (Board typically defers to EEOC on substantive discrimination law)
- West v. Gibson, 527 U.S. 212 (1999) (EEOC may award compensatory damages under Civil Rights Act of 1991; administrative resolution encourages prompt, less formal remedies)
- United States v. Fausto, 484 U.S. 439 (1988) (describes CSRA’s integrated scheme of administrative and judicial review)
- Crosby v. U.S. Postal Service, 78 M.S.P.R. 263 (1998) (treats compensatory‑damages availability as rooted in discrimination law and within EEOC/MSPB interplay)
- Hocker v. Dep’t of Transportation, 63 M.S.P.R. 497 (1994) (recognizes MSPB ability to award compensatory damages under the Civil Rights Act of 1991)