UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2016 MSPB 39

Docket No. AT-0752-14-0058-B-1

Lisa J. Hess,

Appellant,

v.

United States Postal Service,

Agency.

November 18, 2016

Thomas J. Connick, Esquire, Cleveland, Ohio, for the appellant.

Jason L. Hardy, Esquire, and Margaret L. Baskette, Esquire, Clearwater, 

Florida, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 This appeal is before us on the administrative judge’s July 22, 2016 order 

certifying for interlocutory review his ruling that the Board lacks the authority to 

award compensatory damages in discrimination and equal employment 

opportunity (EEO) reprisal claims. For the reasons discussed below, we 

REVERSE the administrative judge’s ruling, VACATE the order that stayed the 

proceedings below, and RETURN the appeal to the regional office for further 

adjudication consistent with this Opinion and Order.
2

BACKGROUND

¶2 The agency removed the appellant effective September 27, 2013. Hess v. 

U.S. Postal Service, MSPB Docket No. AT-0752-14-0058-I-1, Initial Appeal File 

(IAF), Tab 5 at 65-68. She appealed her removal, and raised affirmative defenses 

of sex and disability discrimination, reprisal for EEO activity, and whistleblower 

reprisal. IAF, Tab 1 at 3, 6; Hess v. U.S. Postal Service, MSPB Docket No. 

AT-0752-14-0058-I-2, Refiled Appeal File (RAF), Tab 18 at 4. Subsequently, 

the agency rescinded the action, removed all references thereto from the 

appellant’s official personnel folder, and retroactively returned her to the nonpay 

status that she occupied prior to her removal. IAF, Tab 26 at 35-36, 56. 

¶3 The administrative judge issued an initial decision, dismissing the appeal 

as moot. RAF, Tab 23, Initial Decision (ID). In doing so, he found that no 

hearing was necessary concerning the appellant’s affirmative defenses because

she failed to allege a genuine issue of material fact entitling her to additional 

relief. ID at 4‐20.

¶4 Shortly after the administrative judge issued the initial decision in the 

instant appeal, the Board issued Savage v. Department of the Army, 122 M.S.P.R. 

612 (2015). In Savage, we observed that it is civil service law that defines the 

procedures by which we decide whether a violation of title VII has taken place , 

including 5 U.S.C. § 7702(a)(1)(B). Id., ¶ 45. Those procedures do not provide 

for summary judgment. Id., ¶ 46 & n.10. 

¶5 The appellant petitioned for review of the initial decision. Hess v. U.S. 

Postal Service, MSPB Docket No. AT-0752-14-0058-I-2, Petition for Review 

File, Tab 1. In an Opinion and Order, we affirmed the administrative judge’s 

finding that the appellant’s removal and her whistleblower reprisal defense were 

moot. Hess v. U.S. Postal Service, 123 M.S.P.R. 183, ¶¶ 1, 6‐8 (2016). 

However, relying on Savage, 122 M.S.P.R. 612, ¶¶ 45‐46 & n.10, we found that 

the administrative judge erred in dismissing the appellant’s discrimination and 
3

EEO retaliation affirmative defenses without a hearing because the appellant had 

stated cognizable claims. Hess, 123 M.S.P.R. 183, ¶¶ 9-10. We remanded the 

appeal to the regional office for a hearing on these claims. Id., ¶¶ 10-11.

¶6 On remand, the administrative judge ordered the parties to brief the issue 

of whether, pursuant to its decision in Savage, the Board lacks authority to award 

compensatory damages should the appellant prove her EEO affirmative defenses. 

Remand File (RF), Tab 9. The administrative judge observed that, because the 

underlying removal claim is no longer an issue, in the absence of the authority to 

award compensatory damages, the Board lacks jurisdiction over the instant 

appeal. Id. at 1, 3. Both parties responded that they believed the Board has the 

authority to award compensatory damages. RF, Tabs 15‐16. Nevertheless, the 

administrative judge ruled that the Board lacks such authority. RF, Tab 17 

at 3‐6. On that basis, he once again found that the appeal is moot. Id. at 1, 6‐7. 

He then certified his ruling for interlocutory review. RF, Tab 18; see 5 C.F.R. 

§ 1201.91.

ANALYSIS

¶7 An administrative judge will certify a ruling for interlocutory review if the 

ruling involves an important question of law or policy about which there is 

substantial ground for difference of opinion; and an immediate ruling will 

materially advance the completing of the proceeding, or the denial of an 

immediate ruling will cause undue harm to a party or the public. Cooper v. 

Department of the Navy, 98 M.S.P.R. 683, ¶ 5 (2005); 5 C.F.R. § 1201.92. In 

light of the lack of guidance regarding the impact of the Savage decision on the 

Board’s authority to award compensatory damages, we find that certification was 

proper.

¶8 A case is moot when the issues presented are no longer “live” or the parties 

lack a legally cognizable interest in the outcome of the case. Wrighten v. Office 

of Personnel Management, 89 M.S.P.R. 163, ¶ 5 (2001). An appeal will be 
4

dismissed as moot if, by virtue of an intervening event, the Board cannot grant 

any effectual relief in favor of the appellant. Id. Thus, an agency’s complete 

rescission of the action appealed, and an appellant’s restoration to the status quo 

ante, may render an appeal moot. Id., ¶¶ 6‐8. However, if an appellant raises a 

claim for compensatory damages that the Board has jurisdiction to adjudicate, the 

agency’s complete rescission of the action appealed does not afford her all of the 

relief available before the Board and the appeal is not moot. Id., ¶ 9.

¶9 Thus, because the agency rescinded the appellant’s removal and returned 

her to status quo ante, we must determine whether the Board has authority to 

award compensatory damages for discrimination and EEO reprisal claims. IAF, 

Tab 26 at 35-36, 56. The Board’s authority to adjudicate such claims arises from 

the “integrated scheme of administrative and judicial review” contained in the 

Civil Service Reform Act (CSRA) of 1978. United States v. Fausto, 484 U.S. 

439, 445 (1988) (finding that a former Federal employee without Board appeal 

rights was not entitled to seek judicial review of his suspension), superseded by 

statute on other grounds as stated in Kaplan v. Conyers, 733 F.3d 1148 (Fed. Cir. 

2013); CSRA, Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in various 

sections of title 5, including as pertinent here, 5 U.S.C. §§ 7701‐7703). 

¶10 The CSRA does not address the Board’s authority to award compensatory 

damages in connection with discrimination claims. See generally CSRA, 

Pub. L. No. 95-454, 92 Stat. 1111. This omission is not surprising because such 

damages were not available until more than 10 years after the CSRA was 

enacted.1 Cf. West v. Gibson, 527 U.S. 212, 217 (1999) (observing that it was 

 

1 By contrast, the Board’s authority to award reinstatement and back pay in appeals in 

which it finds discrimination derives from the CSRA. Savage, 122 M.S.P.R. 612, ¶ 47 

(citing 5 U.S.C. §§ 1204(a), 2302(b)(1), 7701(c)(2)(B)); see 5 U.S.C. § 5596(b)(1) 

(authorizing back pay for periods during which an employee was “affected by an 

unjustified or unwarranted personnel action”).
5

“not surprising” that the statutory authority of the Equal Employment 

Opportunity Commission (EEOC) does not specifically enumerate compensatory 

damages because such damages were not available when the statute in question 

was enacted). With the Civil Rights Act of 1991, Pub. L. No. 102‐166, § 102, 

105 Stat. 1071, 1072-74 (codified at 42 U.S.C. § 1981a), Congress authorized 

compensatory damages for both title VII and disability discrimination claims 

under 42 U.S.C. § 1981a(a)(1)‐(2).

2

 Neither the Civil Rights Act of 1991, nor its 

 

2

Section 1981a provides, in relevant part:

(a) Right of recovery 

(1) Civil rights

In an action brought by a complaining party under section 706 or 717 

of the Civil Rights Act of 1964 [42 U.S.C. §§ 2000e-5, 2000e-16] 

against a respondent who engaged in unlawful intentional 

discrimination (not an employment practice that is unlawful because of 

its disparate impact) prohibited under section 703, 704, or 717 of the 

Act [42 U.S.C. §§ 2000e-2, 2000e-3, 2000e-16], and provided that the 

complaining party cannot recover under section 1981 of this title, the 

complaining party may recover compensatory and punitive damages as 

allowed in subsection (b) of this section, in addition to any relief 

authorized by section 706(g) of the Civil Rights Act of 1964, from the 

respondent.

(2) Disability

In an action brought by a complaining party under the powers, 

remedies, and procedures set forth in section 706 or 717 of the Civil 

Rights Act of 1964 [42 U.S.C. §§ 2000e-5, 2000e-16] (as provided in 

section 107(a) of the Americans with Disabilities Act of 1990 

(42 U.S.C. § 12117(a)), and section 794a(a)(l) of title 29, respectively) 

against a respondent who engaged in unlawful intentional 

discrimination (not an employment practice that is unlawful because of 

its disparate impact) under section 791 of title 29 and the regulations 

implementing section 791 of title 29, or who violated the requirements 

of section 791 of title 29 or the regulations implementing section 791 

of title 29 concerning the provision of a reasonable accommodation, or 

section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 

§ 12112), or committed a violation of section 102(b)(5) of the Act, 

against an individual, the complaining party may recover 
6

legislative history, addresses whether the Board has the authority to award 

compensatory damages. 42 U.S.C. § 1981a; H.R. Rep. Nos. 104-40(I)-(II) 

(1991), reprinted in 1991 U.S.C.C.A.N. 549; see Savage, 122 M.S.P.R. 612, ¶ 45

(observing that title VII does not provide the Board with enforcement authority). 

However, because the Board is charged with applying substantive discrimination 

law, we have long awarded compensatory damages. See Savage, 122 M.S.P.R. 

612, ¶ 45 (observing that the Board adjudicates substantive discrimination issues 

under the standard set forth in 42 U.S.C. § 2000e-16(a)); Southerland v. 

Department of Defense, 122 M.S.P.R. 51, ¶ 12 (2014) (observing that the Board 

generally defers to the EEOC on substantive discrimination law). 3

¶11 This practice of awarding of damages is consistent with the structure of the 

CSRA. The CSRA provides for a complex interplay between the Board and the 

EEOC. An employee or applicant alleging discrimination in conjunction with an 

otherwise appealable action initially may elect either to file an EEO complaint 

with her agency or proceed directly to the Board. Lott v. Department of the 

Army, 82 M.S.P.R. 666, ¶ 6 (1999); 5 C.F.R. § 1201.154(a); 29 C.F.R. 

§ 1614.302(b); see 5 U.S.C. §§ 7701(a), 7702(a)(1)‐(2). However, regardless of 

 

compensatory and punitive damages as allowed in subsection (b) of 

this section, in addition to any relief authorized by section 706(g) of 

the Civil Rights Act of 1964, from the respondent.

Both the Board and the EEOC have recognized that the term “action” in these 

subsections includes both court actions and the administrative process. Crosby v. U.S. 

Postal Service, 78 M.S.P.R. 263, ¶¶ 7-8 (1998) (citing Jackson v. Runyon, EEOC 

Appeal No. 01923399, 1992 WL 1372557 (Nov. 12, 1992)). 

3 Member Robbins does not believe that the Board has express statutory authority to 

award compensatory damages, and inferences from title 42 are inadequate. The Board’s 

authority is limited to those matters over which is has been given authority by law, rule, 

or regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. 

Cir. 1985). However, he does not believe this case is the proper venue in which to 

address this issue. The Board previously has awarded compensatory damages in mixed 

cases, and our holding in Savage was not intended to disrupt the status quo on this 

issue.
7

the avenue chosen, the complaining individual’s only right to an evidentiary 

hearing in such mixed cases is before the Board, not the EEOC. Rosso v. 

Department of Homeland Security, 113 M.S.P.R. 271, ¶ 11 (2010); see 5 U.S.C. 

§§ 7701(a)(1), 7702(a); 29 C.F.R. § 1614.302(d)(3) (providing that an agency 

issuing a final decision on a mixed‐case complaint “shall advise the complainant 

of the right to appeal the matter to the [Board] (not EEOC)”); see also Gubisch v. 

Department of the Treasury, 36 M.S.P.R. 634, 637 (1988) (observing that the 

EEOC has no role in a mixed-case appeal unless and until the Board has issued a 

decision that complies with 5 U.S.C. § 7702(a)(1)). In such appeals, “the Board 

shall . . . decide both the issue of discrimination and the appealable action in 

accordance with [its] appellate procedures under [5 U.S.C. §§ 7701 and 7702].” 

5 U.S.C. § 7702(a)(1); Savage, 122 M.S.P.R. 612, ¶ 45. 

¶12 An appellant who disagrees with the Board’s decision may seek review 

from the EEOC. 5 U.S.C. § 7702(b)(1). The EEOC may decline to “consider” 

the Board’s decision, consider and concur in the decision, or consider and 

disagree with the decision. 5 U.S.C. § 7702(b)(2)-(3). If the EEOC disagrees, it 

must refer the matter back to the Board. 5 U.S.C. § 7702(b)(3), (b)(5)(B). The 

Board then reviews and either “concur[s] and adopt[s]” the EEOC’s decision or 

reaffirms its own decision. 5 U.S.C. § 7702(c). 

¶13 If the Board reaffirms its own decision, it is required to refer the matter to 

a Special Panel, consisting of one member each from the Board and the 

Commission, and a Presidential appointee. 5 U.S.C. § 7702(c)(2), (d)(1), 

(d)(6)(A). The Special Panel then issues a decision, “giv[ing] due deference to 

the respective expertise of the Board and [EEOC].” 5 U.S.C. 

§ 7702(d)(2)(A)-(B).

¶14 At various stages in the process, if the employee has exhausted her 

administrative remedies, or if she has attempted to do so and sufficient time has 

elapsed, she has the right to proceed in Federal district court. 5 U.S.C. 
8

§§ 7702(a)(2)‐(3), (b)(5)(A), (d)(2)(A), (e)(1), 7703(b)(2). There, she is entitled 

to de novo review. 5 U.S.C. §§ 7702(e)(3), 7703(c). 

¶15 A Senate Report on the CSRA expressed the intent that the Board consider 

discrimination claims together with “the employee’s inefficiency or misconduct” 

as “two sides of the same question.” S. Rep. No. 95‐969, at 53 (1978), reprinted 

in 1978 U.S.C.C.A.N. 2723, 2775. This would permit a “single unified personnel 

policy which took into account the requirements of all the various laws and goals 

governing Federal personnel management.” Id. The mixed-case appeal process

was intended to streamline adjudication, avoid “forum shopping and inconsistent 

decisions,” and ensure that “the Board and the [EEOC] work together to resolve 

any differences.” Id. 

¶16 Similarly, a joint statement by a Senate and House conference committee 

expressed the goal to “maintain[] the principle of parity between the MSPB and 

EEOC” in the mixed-case appeal process. H.R. Rep. No. 95‐1717, at 139 (1978) 

(Conf. Rep.), reprinted in 1978 U.S.C.C.A.N. 2860, 2873. Therefore, the Board’s 

decision in a mixed-case appeal was to “include[] any remedial order the 

[EEOC] . . . may impose under law.” H.R. Rep. No. 95‐1717, at 140, reprinted 

in 1978 U.S.C.C.A.N. at 2873. The EEOC was to determine whether the Board 

correctly interpreted the laws “over which the EEOC has jurisdiction” and 

awarded an appropriate remedy. H.R. Rep. No. 95‐1717, at 140, reprinted in

1978 U.S.C.C.A.N. at 2873-74.

¶17 Consistent with their relative roles in adjudicating appealable actions, the 

Board generally defers to the EEOC on issues of substantive discrimination law 

unless the EEOC’s decision rests on civil service law for its support or is so 

unreasonable that it amounts to a violation of civil service law. Southerland, 

122 M.S.P.R. 51, ¶ 12. The Civil Rights Act of 1991 provides for compensatory 

damages in matters brought pursuant to 42 U.S.C. § 2000e-16. 42 U.S.C. 

§ 1981a(a)(1); West, 527 U.S. at 217-23. Further, the EEOC has the authority to 
9

award compensatory damages pursuant to the Civil Rights Act of 1991. West, 

527 U.S. at 217‐20, 223. In finding such authority appropriate, the U.S. Supreme 

Court reasoned that it is consistent with a remedial scheme that requires 

exhaustion of administrative remedies to “encourag[e] quicker, less formal, and 

less expensive resolution of disputes within the Federal Government outside of 

court.” Id. at 218-19. 

¶18 This reasoning is equally applicable here, particularly because, as 

discussed above, an employee’s only right to an administrative hearing on a 

discrimination claim related to an otherwise appealable action is before the 

Board. Further, because such cases necessarily contain allegations that 

discrimination prohibited by 42 U.S.C. § 2000e-16 occurred, we find the 

reasoning in West extends to the Board’s adjudication of these claims. See 

5 U.S.C. § 7702(a)(1)(B)(i); see also 5 U.S.C. § 7703(b)(2) (stating that “[c]ases 

of discrimination subject to the provisions of section 7702 of this title shall be 

filed under [42 U.S.C. § 2000e‐16(c)]”). Although the Board stated in Savage

that mixed-case appeals are decided using the Board’s appellate procedures, it 

also recognized that the substantive standard for title VII claims in the Federal 

sector is set forth in 42 U.S.C. § 2000e-16. Savage, 122 M.S.P.R. 612, ¶¶ 44-45. 

Therefore, we find that Savage did not affirmatively diminish the Board’s 

previous practice of awarding compensatory damages.

¶19 The EEOC believes that the Board is required to adjudicate an appellant’s 

claim for any compensatory damages resulting from a discriminatory or 

retaliatory adverse action. Martin v. Department of the Air Force, 73 M.S.P.R. 

590, 593-94 (1997). Although it reasonably may be argued that the question of 

whether compensatory damages are available in the administrative process 

involves the Board’s jurisdiction, and therefore is a matter of civil service law, 

the Board previously has found that, at base, the issue is one of discrimination 

law. Crosby v. U.S. Postal Service, 78 M.S.P.R. 263, ¶ 8 (1998). The Board 
10

reasoned that the authority for compensatory damages derives from the Civil 

Rights Act of 1991, which is discrimination law, and implicates not just the 

Board’s authority, but that of the EEOC. Id. Thus, if an appellant prevails in an 

appeal before the Board based on a finding of discrimination, she may recover 

compensatory damages from the agency pursuant to the Civil Rights Act of 1991. 

Hocker v. Department of Transportation, 63 M.S.P.R. 497, 505 (1994), aff’d per 

curiam, 64 F.3d 676 (Fed. Cir. 1995) (Table); 5 C.F.R. § 1201.202(c) (reflecting 

the Board’s authority to award compensatory damages under the Civil Rights Act

of 1991). We continue to defer to the EEOC’s interpretation of the Board’s 

ability to award compensatory damages, which we find is not so unreasonable as 

to amount to a violation of civil service law.

¶20 In light of our finding that Savage does not alter the Board’s previous 

practice of awarding compensatory damages, we find that the appeal is not moot.

ORDER

¶21 Accordingly, we vacate the stay order issued in this proceeding and return 

the appeal to the regional office for further processing and adjudication consistent 

with this Opinion and Order.

FOR THE BOARD:

______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.