AN MSPB HOLIDAY SURPRISE

Would you have predicted this?  An employee was fired. When she filed an appeal with MSPB she not only denied the agency’s charges, but also claimed discrimination based on sex and disability.  Not long after, the agency rescinded the action, purged her record of any reference to the action, and retroactively reinstated her to the non-pay status position she was in when she was terminated.  When the MSPB judge heard about the reinstatement, she closed the employee’s appeal as moot.  But,

to our surprise–and the judge’s, the Board ruled the judge could not do that because MSPB owed the employee a hearing on her discrimination charges even if the underlying personnel action was rescinded.  In essence, it held that once an employee alleges discrimination or other violation of some law or other than the adverse action statute, that charge must be adjudicated to completion even if the agency withdraws the underlying adverse action.  In this case, while the employee likely cannot get back pay for given that she was in a non-pay status when she was removed, she can still get compensatory damages up to $300,000 and attorney fees if either of her discrimination allegations are upheld.  Check out Lisa Hess v. US Postal Service, 2016 MSPB 40 (November 2016)  It is yet another case to tuck away in your memory, whether on the union or agency side of the table, in case you are involved in a similar situation.