U.S. Merit Systems Protection Board 
Case Report for January 13, 2012  

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.


Appellant:  Linda D. Edwards
Agency:  Department of Transportation
Decision Number:  2012 MSPB 1
Docket Number:  SF-0752-08-0062-P-2
Issuance Date:  January 6, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Compensatory Damages

Compensatory Damages
 - Pecuniary and Nonpecuniary

    The appellant petitioned for review of an addendum initial decision that found that she was not entitled to pecuniary damages, but was entitled to $10,000 in nonpecuniary damages in compensation for the agency's discriminatory acts taken on the basis of her disability.  In previous decisions, 109 M.S.P.R. 579 (2008) and 112 M.S.P.R. 82 (2009), the Board ordered the agency to cancel the appellant's removal and found that she was entitled to back pay.  At issue in this appeal was the appellant's entitlement to compensatory damages under the section 102(a) of the Civil Rights Act of 1991, 42 U.S.C. 1981a.  The appellant sought $219,831 in pecuniary damages and $300,000 in nonpecuniary damages.  

Holdings:  The Board denied the appellant's petition for review and affirmed the addendum initial decision:

Under the Civil Rights Act of 1991, an employee may recover compensatory damages from a federal agency that engaged in unlawful and intentional discrimination against her on the basis of her disability.  To receive an award of compensatory damages, an appellant must demonstrate that she has been harmed as a result of the agency's discriminatory action and must establish the extent, nature, and severity of the harm, as well as the duration or expected duration of the harm.

2.  The administrative judge's credibility determinations are entitled to deference.

3.  The administrative judge correctly found that the appellant failed to establish entitlement to pecuniary damages.

a.  Pecuniary damages are available for out-of-pocket expenses shown to be related to the discriminatory conduct.  Typically, these damages include reimbursement for medical expenses, job hunting expenses, moving expenses, and other quantitative out-of-pocket expenses, and the EEOC requires documentation in support of such expenses.

b.  With respect to the appellant's request for health-related costs, the Board rejected her assertion that the judge should have applied the collateral source rule, which provides that, even if the appellant's medical expenses were covered by her husband's health insurance, such recovery would not offset the agency's liability for the costs.  The appellant has not disputed the judge's finding that the medical expenses claimed were not related to the agency's discriminatory conduct, and application of the collateral source rule to medical expenses is premised upon first finding that the medical expenses at issue were related to the agency's discriminatory conduct.  

c.  With respect to claimed educational expenses, the appellant failed to point to evidence that she incurred educational expenses as a result of the agency's discriminatory conduct.

d.  The appellant's contention that she is entitled to mortgage-related costs is without merit because the EEOC has recognized that expenses such as rent, tax payments, mortgage payments and living expenses would have been incurred whether an appellant was discriminated against or not.

e.  Regarding the appellant's claim of loss of future earning capacity, the judge found that the appellant's official personnel file indicates that she separated from the agency in October 2008 as a result of disability retirement.

4.  The appellant provided no reason to disturb the judge's award of $10,000 in nonpecuniary damages.  

a.  Nonpecuniary losses are losses that are not subject to precise quantification, including emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health.  Damages for nonpecuniary losses should reflect the extent to which the agency directly or proximately caused the harm and the extent to which other factors also caused the harm.  The EEOC has stated that a nonpecuniary damage award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases.  

b.  In awarding the appellant $10,000 in nonpecuniary damages, the judge considered the pertinent evidence and followed the guidelines identified above.

Appellant:  Joan M. Young
Agency:  United States Postal Service
Decision Number:  2012 MSPB 2
Docket Number:  AT-0752-09-0177-X-1
Issuance Date:  January 11, 2012
Appeal Type:  Adverse Action by Agency
Case Type:  Compliance Referral

Compliance - Settlement-Related

    This case was before the Board based on the administrative judge's Recommendation finding the agency in noncompliance with the parties' settlement agreement.  The parties' settlement resolved a Board appeal challenging her placement on enforced leave.  The agreement provided that the agency would reinstate the appellant to her position as a Rural Carrier if she submitted to an "independent medical examination" by a Board-certified, forensic psychiatrist, and the psychiatrist determined that she was medically capable of returning to duty in her former position.  The agreement specified that the appellant could choose between selecting the examining psychiatrist without consultation with the agency, in which cse she would bear the cost of the examination, and jointly selecting the psychiatrist with the agency, in which case the agency would pay for the examination.  The appellant selected the psychiatrist without consulting with the agency.  The psychiatrist concluded that she suffered from "persisting psychiatric difficulties that would prohibit [her] from resuming [her] earlier employment."  In her petition for enforcement, the appellant alleged that the agency interfered with the independence of the medical examination by faxing a variety of materials to the examining psychiatrist.  

     In granting the appellant's petition for enforcement, the administrative judge interpreted the settlement agreement as allowing the agency to communicate with the examining psychiatrist to the extent necessary to provide the appellant's job requirements and the standards she must meet to be deemed medically capable of returning to her former position, but otherwise precluding the agency from providing the examining psychiatrist with agency records regarding the appellant.  The judge found that the materials faxed by the agency to the examining psychiatrist exceeded allowable materials and that the agency thereby breached the settlement agreement.  The judge further found that this breach was material and ordered enforcement of the agreement in the form of requiring that a new psychiatric examination be conducted.

Holdings:  The Board affirmed the administrative judge's Recommendation finding the agency in noncompliance and ordered specific performance of the settlement agreement:

1.  The "independent" nature of the medical examination required by the settlement agreement precluded the agency from providing the questioned agency records regarding the appellant to the examining psychiatrist.  
The Board rejected the agency's suggestion that there was no valid contractual term regarding what materials it could provide the psychiatrist, as it construed the agreement as allowing it to provide any relevant information it might have to the examining psychiatrist.  There can be a failure to reach a binding contract when the parties had differing reasonable interpretations of a material term, but the Board agreed with the judge's conclusion that the agency's interpretation was unreasonable, and found that the appellant's interpretation was reasonable.  

2.  The agency interfered with the independent nature of the agreed-upon medical examination, and thereby materially breached the settlement agreement.  The Board rejected the agency's contention that any breach was not material because of evidence that the psychiatrist did not consider the faxed materials.  The Board has consistently held that an appellant need not show actual harm in order to establish that a nondisclosure provision has been materially breached.  Because the independence of the medical examination was of vital importance to the agreement, the agency's release of improper documents to the psychiatrist by itself constitutes a material breach of the agreement.

3.  The Board vacated the portion of the Recommendation in which the judge required the agency to reimburse the appellant for the costs she incurred with respect to the examination.  In the absence of express language in the settlement agreement requiring the agency to reimburse the appellant for the costs of the psychiatric exam, or an express waiver of sovereign immunity, the Board lacks the authority to award damages for breach of a settlement agreement.  


The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Carlson v. Merit Systems Protection Board, No. 2011-3144 (Jan. 11, 2012) (MSPB Docket No. DC-0353-10-0743-I-1) (affirming the Board's decision, which dismissed a restoration appeal on the basis that the appellant failed to make a non-frivolous allegation that the agency dismissed her claim based on a compensable injury and not for cause)

Jones v. Department of Veterans Affairs, No. 2011-3172 (Jan. 12, 2012) (MSPB Docket No. DE-4324-10-0294-I-1) (affirming the Board's decision, which denied the appellant's request for corrective action under USERRA)

Tillackdharry v. Merit Systems Protection Board, No. 2011-3176 (Jan. 12, 2012) (MSPB Docket No. PH-0752-10-0419-I-1) (affirming the Board's decision, which dismissed an appeal of a termination for lack of jurisdiction on the ground that the appellant failed to establish that she was an employee)

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