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Can MSPB Award Punitive Damages?

Can MSPB Award Punitive Damages?

The Merit Systems Protection Board (MSPB) is tasked with reviewing appeals filed for discrimination, whistleblowing retaliation, and various forms of Prohibited Personnel Practice within federal agencies. Using its authority, the MSPB decides if the discipline was unjust or within acceptable guidelines. If the discipline or discrimination is found to be unjust, the MSPB must also choose how the agency should be penalized and how the person who filed the complaint should be awarded or compensated for the wrongdoing, if at all.

There is a common misbelief that the MSPB can award punitive damages, or money to the claimant awarded solely to punish the agency for wrongdoing. This is not true. While the MSPB can award a few different types of damages and use its authority to correct the situation, assigning punitive damages does not fall under its power.

The MSPB can demand of the defendant agency four types of damages:

  1. Actual compensatory damages: This is money lost by the claimant due to the discrimination. Most notably, the claimant will likely be awarded any lost wages for the unjust penalization, especially if they were terminated. There is no cap on actual compensatory damages.
  2. Nonpecuniary compensatory damages: In an MSPB appeal case, this is the closest award to “punitive,” as it provides a recovery to the claimant for damages that cannot be tracked on data sheets and calculations. In a personal injury case, non-economic damages are equivalent to nonpecuniary compensatory damages. The MSPB may award such damages if the claimant suffered significant emotional harm or distress due to the discrimination. The cap for this damage type is set at $300,000.
  3. Legal costs and fees: Taking an appeal to the MSPB can be a highly intricate case that requires hours and hours of preparation to succeed. Federal employment attorneys generally charge by the hour, meaning an MSPB case could be costly. The claimant will likely be rewarded any attorney costs and court fees if their appeal is successful, ultimately making the case cost them nothing.
  4. Equitable relief: Handing money to the claimant may solve their personal problems that originated from the mistreatment, but it does not actually correct the agency’s wrongdoing and protect other employees. The MSPB can demand equitable relief of the agency, or mandate it take non-monetary corrective measures to ensure the behavior does not happen again. In a sexual harassment discrimination case, for example, equitable relief may be requiring all employees of that agency retake a sexual harassment prevention course.

Do you need to file an MSPB appeal? Not sure what awards you might be able to collect? Get the answers and the legal guidance you need by contacting John P. Mahoney, Esq., Attorney at Law and our DC federal employment law attorneys.

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