Lisa J. Hess v. United States Postal Service
2016 MSPB 40
| MSPB | 2016Background
- Lisa J. Hess, a USPS employee, was removed effective September 27, 2013; she appealed and raised affirmative defenses including sex and disability discrimination, EEO retaliation, and whistleblower reprisal.
- The agency later rescinded the removal, expunged references, and restored Hess to her prior nonpay status, prompting questions whether the appeal remained live.
- An administrative judge initially dismissed the appeal as moot, but the Board reversed in part (relying on Savage) and remanded for a hearing on the discrimination and EEO-retaliation defenses.
- On remand the AJ asked whether the Board has authority to award compensatory damages in mixed-case discrimination/EEO-reprisal claims; the AJ ruled the Board lacked that authority and certified the question for interlocutory review.
- The Board granted interlocutory review and held that Savage did not eliminate the Board’s longstanding practice of awarding compensatory damages in mixed-case appeals; therefore the appeal is not moot and was returned for further adjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board has authority to award compensatory damages for discrimination and EEO-reprisal claims in mixed-case appeals | Hess argues the Board can award compensatory damages and thus the appeal is not moot despite rescission of the removal | Agency position (as adopted by the AJ below) asserted that Savage limits the Board’s authority and thus without damage authority the appeal is moot | Board held the Board retains authority to award compensatory damages in mixed-case appeals; Savage did not strip that authority |
| Whether rescission of the removal rendered the appeal moot | Hess contends rescission does not moot claims for compensatory damages | Agency contends rescission returns status quo ante and moots the appeal if no damages are available | Board held rescission does not render the appeal moot where compensatory damages remain available to the appellant |
| Proper source of authority for awarding compensatory damages | Hess relies on the Board’s historical practice and the remedial scheme integrating CSRA and Title VII/Civil Rights Act of 1991 | Agency/concerned AJ argued that express statutory authority is absent in the CSRA and Savage raises doubt | Board concluded authority flows from the integrated CSRA/Title VII scheme and the Civil Rights Act of 1991 (and longstanding practice) — Board may award compensatory damages |
| Effect of Savage on remedies | Hess: Savage addressed procedure not remedy; it should not eliminate damage awards | Agency/AJ: Savage restricts Board’s remedial reach in mixed cases | Board: Savage clarified procedure but left intact the Board’s ability to apply substantive Title VII law, including awarding compensatory damages |
Key Cases Cited
- Savage v. Department of the Army, 122 M.S.P.R. 612 (MSPB 2015) (clarifies mixed-case procedure and that Board applies Title VII substantive standard)
- United States v. Fausto, 484 U.S. 439 (1988) (describes CSRA’s integrated review scheme)
- West v. Gibson, 527 U.S. 212 (1999) (EEOC may award compensatory damages under Civil Rights Act of 1991)
- Southerland v. Department of Defense, 122 M.S.P.R. 51 (MSPB 2014) (Board defers to EEOC on substantive discrimination law)
- Martin v. Department of the Air Force, 73 M.S.P.R. 590 (MSPB 1997) (EEOC position that Board must adjudicate compensatory damages in mixed cases)
- Hocker v. Department of Transportation, 63 M.S.P.R. 497 (MSPB 1994) (recognition that prevailing appellants may recover compensatory damages under Civil Rights Act of 1991)