Jorge Guzman v. Department of Homeland Security ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JORGE M. GUZMAN, DOCKET NUMBERS
Appellant, SF-0752-15-0170-P-3
SF-0752-15-0170-P-4
v.
DEPARTMENT OF HOMELAND
SECURITY, DATE: January 6, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
James P. Walsh, Esquire, Long Beach, California, for the appellant.
Carolyn D. Jones, Esquire, Williston, Vermont, for the agency.
Dawn M. Harris, Philadelphia, Pennsylvania, for the agency.
John B. Barkley, Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
REMAND ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the addendum initial decision, which granted in part the
appellant’s motions for consequential and compensatory damages pursuant to
5 U.S.C. § 1221(g)(1)(A)(ii). For the reasons discussed below, we GRANT the
agency’s petition for review and deny the appellant’s cross petition for review.
We AFFIRM the administrative judge’s finding that the appellant is not entitled
to recover damages based on the 2011 withdrawal of funds from his Thrift
Savings Plan (TSP) account or for business expenses and start-up capitalization.
We VACATE as duplicative the administrative judge’s finding that the appellant
is entitled to back pay and related benefits as consequential damages. We further
VACATE the administrative judge’s analysis of the appellant’s entitlement to
damages for medical expenses and treatment and nonpecuniary compensatory
damages. We REMAND the case to the Western Regional Office for the
administrative judge to adjudicate the appellant’s entitlement to medical expenses
and treatment and nonpecuniary compensatory damages in accordance with this
Remand Order.
BACKGROUND
¶2 The following facts, as recited in the addendum initial decision, are
generally undisputed. Guzman v. Department of Homeland Security, MSPB
Docket No. SF-0752-15-0170-P-3, Appeal File (P-3 AF), Tab 20, Addendum
Initial Decision (AID). The administrative judge reversed the removal action
because the agency failed to prove its charge and because the appellant proved his
affirmative defense of whistleblower reprisal. AID at 2, 4 -5; Guzman v.
Department of Homeland Security, MSPB Docket No. SF-0752-15-0170-I-2,
Initial Decision (ID) at 27, 39 (Sept. 29, 2017). The merits initial decision
became the Board’s final decision when neither party filed a petition for review.
AID at 1.
3
¶3 The appellant filed timely motions for compensatory and consequential
damages, and the matters were joined. AID at 2; Guzman v. Department of
Homeland Security, MSPB Docket No. SF-0752-15-0170-P-1, Appeal File
(P-1 AF), Tab 3 at 2; Guzman v. Department of Homeland Security, MSPB
Docket No. SF-0752-15-0170-P-2, Appeal File, Tab 3 at 2. 2 The joined matters
were dismissed without prejudice and refiled. AID at 2; P-1 AF, Tab 29; P-3 AF,
Tab 1; Guzman v. Department of Homeland Security, MSPB Docket No. SF-0752-
15-0170-P-4, Appeal File, Tab 1. 3 A hearing was held. AID at 2; P-3 AF,
Tabs 11, 16.
¶4 The administrative judge issued an addendum initial decision, which
granted in part the appellant’s motions for consequential and compensatory
damages. AID at 2. In particular, she found that the expanded damages
provisions under the Whistleblower Protection Enhancement Act of 2012
(WPEA) applied because the removal action occurred after the WPEA’s effective
date. 4 AID at 5-6. She determined that the appellant was entitled to back pa y and
related benefits as consequential damages. AID at 7-9. The administrative judge
also awarded as consequential damages $12,956 for medical expenses and
treatment and future medical expenses. 5 AID at 12-14. However, she concluded
that the appellant was not entitled to recover consequential damages for the
following: (1) the lost value of a 2011 withdrawal from his TSP investment,
related penalties, and lost earnings, as well as expert witness fees that he incurred
to support his claim of entitlement to such damages; and (2) business expenses
2
Because the P-1 and P-2 matters were joined, we will only cite to “P -1 AF.”
3
Because the P-3 and P-4 matters were joined, we will only cite to “P -3 AF.”
4
Neither party challenges the administrative judge’s ruling in this regard.
5
The administrative judge noted that the appellant’s request for pecuniary
compensatory damages was coextensive with his request for consequential damages,
and she stated that the request for pecuniary damages was granted to the full extent
found therein and was otherwise moot. AID at 2.
4
and start-up capitalization. 6 AID at 10-12, 15-17. Finally, she found that the
appellant was entitled to an award of $250,000 in nonpecuniary compensatory
damages. AID at 2, 17-26.
¶5 The agency has filed a petition for review, the appellant has filed a
response, and the agency has filed a reply. Guzman v. Department of Homeland
Security, MSPB Docket No. SF-0752-15-0170-P-3, Petition for Review (P-3 PFR)
File, Tabs 1, 3, 5. The agency certifies that it has begun the process to pay the
appellant $945 for pecuniary damages and $5,000 in nonpecuniary damages, but
it contests on review the remaining amounts awarded to the appellant. P -3 PFR
File, Tab 1 at 28. The appellant has filed a cross petition for review, and the
agency has filed a response. P-3 PFR File, Tabs 3, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
Legal Standard 7
¶6 As the prevailing party in a Board appeal in which the administrative judge
ordered corrective action based upon a finding of whistleblower reprisal, the
appellant is entitled to an award of “backpay and related benefits, medical costs
incurred, travel expenses, any other reasonable and foreseeable consequential
damages, and compensatory damages (including interest, rea sonable expert
6
The appellant does not challenge the administrative judge’s decision not to award
damages for business expenses and start-up capitalization because they were not
reasonably foreseeable losses. Guzman v. Department of Homeland Security, MSPB
Docket No. SF-0752-15-0170-P-3, Petition for Review File, Tab 3 at 15-16. We
discern no error with the administrative judge’s analysis in this regard, an d we affirm
her finding herein. See, e.g., 5 U.S.C. § 1221(g)(1)(A)(ii) (stating that corrective action
may include “reasonable and foreseeable consequential damages”).
7
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit. However, as a result of changes initiated by the Whistleblower
Protection Enhancement Act of 2012, Pub. L. No. 112-199, § 108, 126 Stat. 1465, 1469,
extended for 3 years in the All Circuit Review Extension Act, Pub. L. No. 113-170, § 2,
128 Stat. 1894 (2014), and eventually made permanent in the All Circuit Review Act,
Pub. L. No. 115-195, 132 Stat. 1510 (2018), we must consider this matter with the view
that the appellant may seek review of this decision before any appropriate court of
appeal. See 5 U.S.C. § 7703(b)(1)(B).
5
witness fees, and costs).” 5 U.S.C. § 1221(g)(1)(A)(ii); see King v. Department
of the Air Force, 122 M.S.P.R. 531, ¶ 7 (2015).
¶7 Compensatory damages include pecuniary losses, future pecuniary losses,
and nonpecuniary losses such as emotional pain, suffering, inconvenience, mental
anguish, and loss of enjoyment of life. Hickey v. Department of Homeland
Security, 766 F. App’x 970, 976-77 (Fed. Cir. 2019); 8 5 C.F.R. § 1201.201(c).
Compensatory damages are designed to compensate the appellant for actual harm,
not to punish the agency. Hickey, 766 F. App’x at 977. To be entitled to
compensatory damages, an appellant must prove that the emotional harm was
actually caused by the retaliatory activities determined to have been unlawful and
the damages sought reflect the nature and severity of the harm and its duration or
expected duration. 9 Id. at 977-78.
¶8 To receive an award of consequential damages, an appellant must prove that
he incurred consequential damages and that his claimed damages were reasonable,
foreseeable, and causally related to the agency’s prohibited personnel practice.
King, 122 M.S.P.R. 531, ¶ 7 (citing Johnston v. Department of the Treasury,
100 M.S.P.R. 78, ¶ 13 (2005)); see 5 C.F.R. § 1201.202(b).
8
The Board may follow a nonprecedential decision of a court when, as here, it finds its
reasoning persuasive. Edwards v. Department of Labor, 2022 MSPB 9, ¶ 16 n.6.
9
The administrative judge correctly noted that case law regarding compensatory
damages in whistleblower reprisal cases is undeveloped, and she stated that it was
appropriate to apply the case law pertaining to compensatory damages in Equal
Employment Opportunity Commission (EEOC) cases by analogy and to give persuasive
authority to the regulatory guidance of the EEOC as it pertains to compensatory
damages. AID at 17. Both parties acknowledge that there is sparse case law on
compensatory damages awarded pursuant to 5 U.S.C. § 1221(g). P-3 PFR File, Tab 1
at 13, Tab 3 at 16. The agency does not challenge the administrative judge’s decision to
look at EEOC compensatory damages cases by analogy. P-3 PFR File, Tab 1 at 13. The
appellant acknowledges that the Board’s practice of looking at EEOC compensatory
damages cases is “apt in many case[s],” but he asserts that it is not appropriate in this
case because his damages exceed the EEOC’s statutory cap of $300,000. P-3 PFR File,
Tab 3 at 16-21. In our analysis of the appellant’s entitlement to compensatory damages
pursuant to 5 U.S.C. § 1221(g), we may rely on the EEOC’s guidance regarding
compensatory damages to the extent we find it persuasive.
6
We affirm the administrative judge’s finding that the appellant is not ent itled to
recover damages based on the withdrawal of funds from his TSP account,
including penalties, lost earnings, and/or associated expert witness fees.
¶9 The addendum initial decision reflects that the appellant sought damages for
the following: (1) in October 2011, the appellant withdrew $220,000 (and
received a net amount of $218,952.95) from his TSP account, largely to pay
attorney fees to defend himself in 2011-2012 against various agency actions;
(2) he incurred an additional tax liability of $107,871 plus interest and penalties
as a result of the withdrawal; and (3) he sought to recover the lost value of that
withdrawal, in the amount of $300,890, as well as $143,225 in damages for the
loss of return on his investment because he had to modify his por tfolio strategy to
a more conservative approach. AID at 10-11.
¶10 The administrative judge found that the appellant was not entitled to
recover damages for the potential loss of income and the change to his investment
strategy because they were not reasonably foreseeable. 10 AID at 11. She also
found that he was not entitled to recover damages for the other claimed expenses
because the TSP withdrawal occurred in October 2011, approximately 3 years
before the removal action at issue, and those funds were wit hdrawn to defend
against other agency actions not at issue here, including the December 2010
execution of a search warrant, placement on administrative leave, and the
subsequent investigation and first 2012 notice of proposed removal. 11 Id.Because these expenses were not reasonably foreseeable to the removal action,
they were not recoverable. Id. Similarly, the administrative judge found that the
appellant was not entitled to recover as damages fees for an expert witness (who
evaluated the lost future value of the investment that he withdrew in 2011)
10
The appellant “accepts the disallowance of claims for losses associated with his
change of investment strategy” in the amount of $143,225 because it was not a
reasonably foreseeable loss. P-3 PFR File, Tab 3 at 15.
11
The appellant clarifies that he is “not here seeking the return of the $220,000 —that
was spent on lawyers and a Cross-Petition re: Attorney Fees is presently with the
Board.” P-3 PFR File, Tab 3 at 15.
7
because they were not related to any foreseeable injury sustained as a result of the
removal action. AID at 12.
¶11 In his cross petition for review, the appellant argues that he is entitled to an
award of past pecuniary damages in the amount of $107,871 for additional tax
liability, $300,890 in lost investment value, and expert witness fees to calculate
the lost investment value. P-3 PFR File, Tab 3 at 13-15. We disagree. Indeed,
the appellant has offered no legal authority to support his contention that any
expenses associated with his decision to withdraw substantial funds from his TSP
in 2011—nearly 3 years before the March 7, 2014 notice of proposed removal and
to pay fees based on other agency actions independent of the removal 12—is a
reasonable and foreseeable consequence related to the removal action. We
acknowledge the appellant’s argument that the administrative judge was
inconsistent because she did not award damages related to the 2011 TSP
withdrawal, but she awarded $250,000 in nonpecuniary compensatory damages
and “frequent[ly] reference[d] . . . the harms suffered by [the a]ppellant in the
[4]-year period from July 2010 to April 2014.” P-3 PFR File, Tab 3 at 13-14.
Any inconsistency in this regard in the addendum initial decision does not
warrant a different outcome on the issue of the appellant’s entitlement to recover
12
The administrative judge noted in the addendum initial decision that the appellant
filed a complaint with the Office of Special Counsel (OSC) regarding his placement on
administrative leave status and assignment of administrative duties, OSC issued a close
out letter on April 10, 2014, and the appellant did not file an individual right of action
(IRA) appeal within 65 days as directed by OSC. AID at 3. Because the appellant did
not file an IRA appeal regarding these agency actions, there was no order for corrective
action, and the appellant is not entitled to recover damages as a result of these agency
actions. 5 U.S.C. § 1221(g)(1)(A)(ii). To the extent that there are other agency actions
unrelated to the 2014 removal that the appellant has not raised with OSC, and for which
he believes he is entitled to damages, there is no statutory time limit for filing a request
for corrective action with OSC. 5 U.S.C. § 1214(a)(1)(A); McCarthy v. Merit Systems
Protection Board, 809 F.3d 1365, 1375 (Fed. Cir. 2016); Augustine v. Department of
Justice, 50 M.S.P.R. 648, 652 (1991).
8
pecuniary damages based on his 2011 withdrawal of funds from his TSP account,
including penalties, lost earnings, and/or associated expert witness fees. 13
We vacate the administrative judge’s award of back pay and related benefits as
consequential damages because it is duplicative of the Board’s final decision in
the compliance matter.
¶12 In the addendum initial decision, the administrative judge awarded as
consequential damages back pay and benefits through the end of the month in
which the appellant attained age 60, or July 31, 2019. AID at 7 -9. This award
arose out of the fact that, in the final decision in the merits appeal, the removal
action was reversed and the agency was ordered to pay back pay and related
benefits to the appellant, effective November 21, 2014 (the date of his
retirement); the agency canceled the appellant’s retire ment, but it issued a
Standard Form 50 mandatorily retiring him with an effective date of July 31,
2016, pursuant to 5 U.S.C. § 8425(b)(1). 14 AID at 7; Guzman v. Department of
Homeland Security, MSPB Docket No. SF-0752-15-0170-C-1, Compliance Initial
Decision (CID) at 2-3 (Aug. 3, 2018); ID at 39. After the appellant filed a
petition for enforcement, the administrative judge found that the agency did not
substantially comply with the Board’s final decision in the merits appeal because,
among other things, it did not give the appellant the required 60 days’ notice
before mandatorily separating him, and he was entitled to back pay to the date of
his restoration, to regular pay after that date, and to proper notice. CID at 7-8.
The administrative judge noted in the addendum initial decision that the agency
13
In addition, as noted below, we are vacating the portion of the addendum initial
decision that awarded the appellant $250,000 in nonpecuniary damages for further
analysis of the question of whether such damages may be based, in part, on the impact
of actions that predated the removal.
14
Section 8425(b)(1) of Title 5 of the U.S. Code states, in pertinent part, that a law
enforcement officer who attains the age of 57 shall be separated on the last day of the
month in which he becomes 57, unless the agency head exempts him from automatic
separation until the employee becomes 60 years old. 5 U.S.C. § 8425(b)(1)
Additionally, section 8425(b)(1) requires that the agency “shall notify the employee in
writing of the date of separation at least 60 days before that date.”
9
filed a petition for review of the compliance initial decision. AID at 7 n.2. She
explained that her award of back pay and related benefits as co nsequential
damages was not intended to permit double recovery of back pay and benefits;
rather, she clarified that the appellant was due this remedy as a result of the
reversal of the agency’s action and his successful whistleblower reprisal claim.
AID at 8-9 & n.3.
¶13 Both parties challenge the administrative judge’s decision to award back
pay and related benefits as consequential damages. P-3 PFR File, Tab 1 at 25
(arguing that the administrative judge’s award “assumes that [the appellant]
would have been granted a [3]-year waiver of his mandatory retirement date” and
unjustly enriches him), Tab 3 at 11 (contending that the administrative judge
exceeded her authority by awarding back pay and benefits as part of a
consequential damages award and noting that the back pay issue is pending in the
compliance matter).
¶14 We agree with the appellant that it is improper to address the issue of back
pay and related benefits in the damages appeal. The Board has issued an order in
the compliance matter, which clarified that because the appellant has reached the
age of 60, he is no longer entitled to reinstatement, but the agency is required to
pay him back pay and related benefits through July 31, 2019 (the month in which
he turned 60 years old) in order to be in compliance with the Board’s final
decision in the merits appeal. We therefore vacate as duplicative the
administrative judge’s finding in the addendum initial decision that the appellant
is entitled to back pay and related benefits as consequential damages.
We vacate the administrative judge’s award of nonpecuniary damages and remand
this claim for further adjudication.
¶15 The administrative judge found that the appellant was entitled to
nonpecuniary damages because of the “deleterious effect caused by the agenc y’s
retaliation” in the areas of emotional pain, suffering, mental anguish, injury to
professional standing, injury to his character and reputation, and loss of
10
enjoyment of life. AID at 18. Importantly, the administrative judge noted that
the record was replete with statements, accounts, and recollections from the
appellant’s children, friends, and colleagues that “make it crystal clear that [he]
was harmed as a direct result of the agency’s retaliatory action.” AID at 22. The
administrative judge considered the testimony of the appellant, his witnesses, and
the statements presented, and she found that this evidence was “credible,
reliable[,] and useful to assist in ascertaining the damages suffered by the
appellant in this matter.” Id. She also stated that she gave “great weight” to
these statements, declarations, and testimony. Id. Significantly, the
administrative judge considered EEOC guidance and concluded that it was
appropriate to consider “the entirety of the action” —meaning from the appellant’s
placement on administrative duties on approximately March 1, 2013, to the
November 2014 decision—in considering his entitlement to compensatory
damages. AID at 3-4, 22-23 (citing, among other things, 29 C.F.R.
§ 1614.107(a)(5)). 15 The administrative judge concluded that, for the areas of
severe, lasting injury, and for an injury extending for 5½-6 years, the appellant
proved an entitlement to $250,000 in nonpecuniary compensatory damages.
AID at 17-26.
¶16 On review, the agency contends that the administrative judge erred when
she failed to restrict her consideration of nonpecuniary damages to the 2014
removal action. P-3 PFR File, Tab 1 at 14-15. It asserts that she explicitly
considered the appellant’s comments regarding the impact of his decision to
report unlawful witness tampering in 2010, and she discussed the evidence
stemming from the agency actions (such as an office search, grand jury
investigation, and threat of prison) that predated the March 7, 2014 notice of
15
This EEOC regulation states that an agency shall dismiss an entire complaint “[t]hat
is moot or alleges that a proposal to take a personnel action, or other preliminary step to
taking a personnel action, is discriminatory, unless the complaint alleges that the
proposal or preliminary step is retaliator y.”
11
proposed removal. Id. at 15. The agency also asserts that the administrative
judge did not consider the appellant’s preexisting conditions such as stress,
post-traumatic stress disorder, anger, estrangement, and physical pain, among
others. Id. at 15-17. Conversely, the appellant argues that the award “does not
closely approach the compensation needed to give [ him] a make-whole remedy”
for, among other things, his “ruined reputation” and “destroyed career” and
damage that “is far more severe and long-lasting than most of the cases that come
before the EEOC and the Board.” P-3 PFR File, Tab 3 at 19-21. Instead, the
appellant advocates for an award of $1,000,000. Id. at 20-21.
¶17 The administrative judge correctly noted in the addendum initial decision
that the only retaliatory personnel action at issue is the removal, which led to the
appellant’s retirement in lieu of removal on November 21, 2014. AID at 5. She
also correctly stated in the order and summary of telephonic status conference
that she was only authorized to award damages that stem from the adjudicated
removal action; she noted that there may have been other personnel actions, but
the appellant did not file an IRA appeal, and she had no authority to award
damages that emanated from other personnel actions. P -1 AF, Tab 26 at 1-2.
¶18 Despite these statements, and her finding that an award is warranted
“because there is more than adequate causal connection between the agency’s
retaliatory action and the appellant’s injury,” AID at 25, we acknowledge the
agency’s argument that the administrative judge improperly considered agency
actions that predated the 2014 removal action as well as the impact of those
actions on the appellant. See, e.g., AID at 18 (noting that the appellant stated
that, “from the time of his decision to report what he believed was unlawful
witness tampering, he describes a ‘living nightmare – a nightmare that continue to
this very day’”), 19-20 (describing that, when the appellant was returned to duty
on March 4, 2013, he was not given any work assignments of any consequence,
and he was not included in management meetings, or on management em ails,
among other things), 21 (describing the appellant’s wife’s testimony about the
12
appellant when he was on administrative leave and administrative duties). We
agree that the administrative judge did not clearly explain her rationale for
awarding damages in this regard, particularly where she appeared to rely on
agency actions that predated the 2014 removal action.
¶19 We wish to briefly discuss one issue that was not raised by the
administrative judge or the parties. The WPEA added 5 U.S.C. § 1221(g)(4),
which states that “[a]ny corrective action ordered under this section to correct a
prohibited personnel practice may include . . . damages reasonably incurred due
to an agency investigation of the employee, if such investigation was commenced,
expanded, or extended in retaliation for the disclosure . . . that formed the basis of
the corrective action.” According to the legislative history, section 1221(g)(4)
“create[d] an additional avenue for financial relief once an employee is able to
prove a claim under the [whistleblower protection statutes], if the employee can
further demonstrate that an investigation was undertaken in retaliation for the
protected disclosure.” S. Rep. No. 112-155, at 21 (2012); see Sistek
v. Department of Veterans Affairs, 955 F.3d 948, 955 (Fed. Cir. 2020)
(concluding that retaliatory investigations do not qualify as personnel actions
under the whistleblower protection statutes, but they “may provide a basis for
additional corrective action if raised in conjunction with one or more of the
qualifying personnel actions specified by [5 U.S.C.] § 23 02(a)(2)(A)”). 16
¶20 In analyzing the appellant’s whistleblower reprisal claim in the merits
appeal, the administrative judge noted that the appellant provided preponderant
evidence that his 2010 disclosure prompted the agency to initiate the credentials
investigation, which led to the agency reopening the investigation into the 2004
microphone discovery, the culmination of which was the removal action. ID
at 34. If an agency investigation was “commenced, expanded, or extended in
retaliation for” the appellant’s whistleblowing disclosure, the appellant may be
16
The appellant’s chapter 75 removal was a personnel action pursuant to 5 U.S.C.
§ 2302(a)(2)(A)(iii).
13
entitled to “damages reasonably incurred” due to any such investigation —as long
as such damages were incurred after the December 27, 2012 effective date of the
WPEA. 5 U.S.C. § 1221(g)(4); King v. Department of the Air Force,
119 M.S.P.R. 663, ¶ 3 (2013). However, because the applicability of 5 U.S.C.
§ 1221(g)(4) is an issue of first impression before the Board that was not raised
by or before the administrative judge, the parties were not given an opportunity to
brief the applicability of this provision or its impact on the appellant’s
entitlement to compensatory and/or consequential damages. Accordingly, we
vacate the administrative judge’s analysis and remand the issue of the appellant’s
entitlement to nonpecuniary compensatory damages for further adjudication. 17
¶21 As noted above, the administrative judge held a hearing and made implicit
demeanor-based credibility determinations. AID at 22; see Purifoy v. Department
of Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016) (finding that the Board
must defer to an administrative judge’s demeanor-based credibility
determinations “[e]ven if demeanor is not explicitly discussed”). The
administrative judge therefore is in the best position to reevaluate the evidence
and analyze the issues that we have discussed herein. Accordingly, w e remand
the appeal to the administrative judge to issue a new addendum initial decision
that incorporates our findings and evaluates the appellant’s entitlement to
nonpecuniary compensatory damages based on the removal action per 5 U.S.C.
17
We are not persuaded by the administrative judge’s reliance on 29 C.F.R.
§ 1614.107(a)(5) to justify her consideration of the appellant’s assignment of
administrative duties in March 2013 as part of a damages award related to the removal.
AID at 22-23. The administrative judge noted that the appellant exhausted his claim
with OSC that the agency’s decision to place him on administrative duties was
retaliatory, and he could have filed, but did not file, an IRA appeal regarding this claim.
AID at 3. If the appellant had filed an IRA appeal and was successful, he could have
been granted corrective action and awarded damages based on the assignment of
administrative duties. Because the appellant failed to file an IRA appeal regarding the
assignment of administrative duties (or any other personnel action), our authority under
5 U.S.C. § 1221(g)(1)(A)(ii) to award damages only stems from the removal action.
14
§ 1221(g)(1)(A)(ii) and, if applicable, 5 U.S.C. § 1221(g)(4). 18 The new
addendum initial decision should include a thorough and specific explanation for
the administrative judge’s award of damages in this regard. See, e.g., Hickey,
766 F. App’x at 978 (noting that Mr. Hickey’s request for compensatory damages
included all of his original claims in his IRA appeal, instead of the three instances
of misconduct for which the Board determined he was entitled to recover, and
concluding that he was only entitled to recover compensatory damages for the
three instances of unlawful misconduct); see generally EEOC Enforcement
Guidance: Compensatory and Punitive Damages Available Under § 102 of the
Civil Rights Act of 1991, 1992 WL 1364354, at *5 (July 14, 1992) (EEOC
Guidance) (“An award for emotional harm is warranted only if there is sufficient
causal connection between the [agency’s] illegal actions and the complaining
party’s injury.”).
We also vacate the administrative judge’s award of damages for the appellant’s
medical expenses and treatment and remand for further adjudication.
¶22 In her analysis of the appellant’s entitlement to damages for medical
expenses and treatment, the administrative judge noted that the relevant time
frame started on March 7, 2014 (the notice of proposed removal), and it was
undisputed that, starting on this date, the appellant had uncovered medical
expenses consisting of copays for psychiatric, psychological, and pr imary care
providers. AID at 12. She also discussed the appellant’s self -report that (1) his
mental health declined between April and November 2014, (2) he was “falling
apart,” (3) he had stomach disorders, chest pains, depression, and stress, (4) he
attributed these problems to the agency’s retaliation against him, and (5) these
problems continue to adversely impact his health. AID at 13. The administrative
18
Because we are vacating and remanding this claim for damages, we need not address
the parties’ substantive arguments on review relating to this claim. However, the
administrative judge has discretion to reopen the record to allow the parties to present
evidence and/or argument on the specific issues that are being remanded.
15
judge awarded $630 for past psychiatric care from April 2014 to February 2018,
$800 for the period from February 2018 to September 2020, and $960 for future
psychiatric care copays for 3 years, for a total of $2,390. Id. The administrative
judge acknowledged that the appellant’s therapist passed away and her records
were not included in the Board’s record, concluded that the appellant was entitled
to recover out-of-pocket expenses for therapy and counseling, and awarded
$7,200 for psychological counseling for 3 years. AID at 13 -14.
¶23 Regarding his primary care physician, the administrative judge
acknowledged that “not all of each office visit was due to issues related to the
mental and physical impacts suffered as a result of the agency’s actions,” but she
found that “80% of the charges incurred since April 2014 are fairly attributable,
directly or indirectly, to the agency, and should be borne by the agency to
recompense for the appellant’s out of pocket expenses.” 19 AID at 14. The
administrative judge therefore awarded the appellant an additional $1,866 for
expenses incurred from April 2014 through October 2017, and $1,500 for future
copays from November 2017 for a period of 3 years. Id.¶24 On review, the agency argues, among other things, that the administrative
judge erred in her award because (1) the appellant lacked documentary
corroboration to support his claim of damages for psychological counseling,
(2) the administrative judge’s factual determinations, especially related to future
damages, were purely speculative, and (3) she did not consider the appellant’s
preexisting conditions. P-3 PFR File, Tab 1 at 7-12. In pertinent part, the agency
argues that “[p]roceeding solely by dates of treatment after a certain time period,
without any evidence or inquiry as to the possible alleviation or termination of a
prior condition, is a factual error that would result in a different award of
19
The administrative judge stated that it was appropriate to measure the appellant’s
damages based on primary care visits from “April 2014, the close out of the OSC
complaint.” AID at 14. We clarify that OSC’s decision to close his complaint in
April 2014 has no bearing on the appellant’s entitlement to damages because he did not
file an IRA appeal.
16
pecuniary damages.” Id. at 9. The appellant does not respond substantively to
the agency’s arguments, but he “accepts” the administrative judge’s award of
damages in this regard. P-3 PFR File, Tab 3 at 15.
¶25 Here, too, we have concerns that the administrative judge has not
sufficiently linked the appellant’s claim for damages for medical expenses and
treatment to the removal action. Significantly, the administrative judge
considered the appellant’s conditions and agency actions that predated the
March 7, 2014 notice of proposed removal. For example, she noted that the
appellant’s medical needs before 2010 were “sporadic” but that he “ presented
himself to obtain medical care as a result of the impact of the agency ’s actions
towards him.” AID at 13. She noted that the appellant reported that it was
“particularly devastating” that the agency placed him on administrative duties
instead of restoring him to his management role after the first notice of proposed
removal was not sustained. Id. It is also problematic that the administrative
judge seems to have automatically credited most of the appellant’s medical
appointments that postdated the March 7, 2014 notice of proposed removal
because the chronology is not necessarily dispositive. Indeed, the appellant’s
entitlement to damages related to the removal is complicated , in part, because of
the protracted litigation between the parties and the fact that the appellant may
have suffered from medical conditions due to various agency actions that
predated the March 7, 2014 notice of proposed removal.
¶26 Ultimately, we find that the administrative judge’s analysis does not clearly
and sufficiently link the appellant’s entitlement to damages for medical expenses
and treatment (past and future) to the 2014 removal action. See Hollingsworth v.
Department of Commerce, 117 M.S.P.R. 327, ¶ 11 (2012) (finding that—even
accepting the assertions of the appellant, her family friends, and clergy that her
medical conditions worsened after the agency removed her —that alone did not
establish a causal connection between the agency’s acts and the worsen ing of the
appellant’s conditions); see generally EEOC Guidance, 1992 WL 1364354, at *4
17
(“To recover damages [for pecuniary losses], the complaining party must prove
that the employer’s discriminatory act or conduct was the cause of his loss.”).
Moreover, the administrative judge did not discuss 5 U.S.C. § 1221(g)(4) or its
applicability to the appellant’s claim of reimbursement of medical expenses and
treatment, and the parties were not given an opportunity to brief this issue.
Accordingly, we vacate the administrative judge’s analysis of the appellant’s
entitlement to reimbursement of medical expenses and treatment , and we remand
this claim so that the parties can brief the issues relating to 5 U.S.C. § 1221(g)(4)
and any other issues deemed appropriate by the administrative judge in this
regard. The administrative judge should reevaluate the appellant’s claim of
entitlement to medical expenses and treatment both in relation to the removal
action, per 5 U.S.C. § 1221(g)(1)(A)(ii) and, if applicable, 5 U.S.C. § 1221(g)(4),
and issue a new addendum initial decision that explains her findings. 20
20
On remand, the administrative judge should review and, if necessary, correct some of
her calculations. For example, the agency contests the award of $1,866 for medical
expenses incurred with the appellant’s primary care physician. P -3 PFR File, Tab 1
at 9; AID at 14. We agree that the amount awarded does not appear to match the
administrative judge’s explanation of how she derived that amount and the cited record
evidence. AID at 14; P-1 AF, Tab 18 at 64. Without further explanation from the
administrative judge, we cannot assess the merits of the agency’s other arguments
regarding this expense. On remand, the administrative judge should make new findings
regarding the medical expenses claimed related to the primary care physician and
explain her rationale. Additionally, for future psychiatric care copays for 3 years at
$25.00 per month, the total would appear to be $900, not $960. AID at 13.
18
ORDER
¶27 For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.