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EEOC disagrees with MSPB on remedies for federal employee. Petitioner filed a petition with the Merit Systems Protection Board (MSPB) alleging discrimination on the basis of physical or mental disability or reprisal when petitioner was removed from employment and constructively suspended prior to his removal. In the initial decision, the MSPB Administrative Judge reversed Petitioner’s removal finding discrimination, but also finding that Petitioner had failed to raise the constructive suspension allegation in a timely manner. Petitioner petitioned to the full Board for reconsideration, where the Board affirmed the initial decision in part, but found petitioner had raised the constructive suspension allegation in a timely manner. Following a second hearing, the MSPB AJ issued a second initial decision dismissing the constructive suspension claim for lack of jurisdiction, as well as the claim of mental disability discrimination, but awarded $5,000 in compensatory damages for physical disability discrimination. Petitioner petitioned the MSPB full board again for reconsideration, and the Board found in favor of Petitioner’s claims of disability discrimination and constructive discharge but not for his mental disability discrimination. Petitioner petitioned the Equal Employment Opportunity’s (EEO) Office of Federal Operations (OFO) for reconsideration.

The OFO held that the MSPB’s decision is a correct interpretation with regard to the finding of discrimination, but not with regard to the remedy awarded. Finding physical disability discrimination but not mental disability discrimination, the OFO held that the correct compensatory award is back pay for the period of his constructive suspension offset by the amount of the wage-replacement benefits the Petitioner received. The OFO further declined to analyze the $5,000 awarded to the Petitioner from the MSPB.

Albert P. Schultz v. United States Postal Service, EEOC Appeal No. 03980087 (October 14, 1999) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/03980087.txt