2024 MSPB 7
MSPB2024Background
- Michelle Gilewicz, while employed as an Immigration Officer in the Philadelphia Field Office of the Department of Homeland Security (DHS), made protected disclosures concerning improper conduct by a colleague.
- Gilewicz alleged she was subjected to a hostile work environment in Philadelphia in retaliation for her whistleblowing.
- An administrative judge found that a retaliatory hostile work environment did occur in Philadelphia but not in later assignments in Wichita or regarding other adverse actions.
- The judge awarded Gilewicz $100,000 in nonpecuniary compensatory damages for emotional harm, and $6,169.75 in consequential damages for costs incurred.
- DHS challenged the compensatory damages award as excessive on review, leading to review by the Merit Systems Protection Board (MSPB).
- The MSPB remanded the compensatory damages determination, finding the evidence insufficiently tied to the proven retaliation in Philadelphia, but affirmed the consequential damages award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriateness of compensatory damages amount | Harm justified $100,000 due to emotional distress and medical issues from retaliation | Award excessive; evidence cited emotional harm from broader conduct than proven retaliation | Remanded for proper assessment of damages directly tied to Philadelphia retaliation |
| Reliance on non-analagous comparator case (Fivecoat) | Award in Fivecoat was similar; supports requested damages | Fivecoat involved more severe misconduct and longer duration; not comparable | Board found improper reliance on non-analogous EEOC cases; further analysis required |
| Evidence tying injury to agency conduct | Emotional harm and medical records support substantial award | Records and statements reference distress caused by unrelated/unproven conduct | Damages must be calculated only for proven retaliation-related harm |
| Consequential damages for forensic costs | Costs arose from successful claim; should be awarded | Did not challenge this award on review | Consequential damages award affirmed |
Key Cases Cited
- Hickey v. Department of Homeland Security, [citation="766 F. App'x 970"] (Fed. Cir. 2019) (explaining compensatory damages must be for proven harm caused by agency's wrongful conduct)
- King v. Department of the Air Force, 122 M.S.P.R. 531 (2015) (outlining entitlement to damages under whistleblower laws)
- Edwards v. Department of Transportation, 117 M.S.P.R. 222 (2012) (Board adopts EEOC compensatory damages guidance)
- Hollingsworth v. Department of Commerce, 117 M.S.P.R. 327 (2012) (damages must reflect proportion of harm caused by agency)
- Heffernan v. Department of Health and Human Services, 107 M.S.P.R. 97 (2007) (comparing nonpecuniary awards for consistency)