Wilson v. U.S. Postal Service, 38 M.S.P.R.

156 (1988)

In complying with order to reinstate
employee, agency was not required to place
KeyCite Yellow Flag - Negative Treatment employee in position to which he claimed
Remanded by Larry L. Wilson, Petitioner, v. Anthony M. Frank, 
he would have been promoted but for the
Postmaster General (USPS-ER), Agency., E.E.O.C., August 24, 1988
removal action; employee failed to establish
38 M.S.P.R. 156
that he would have been promoted to any of
Merit Systems Protection Board.
the positions he cited.
Larry L. WILSON, Appellant,
Cases that cite this headnote
v.
UNITED STATES POSTAL SERVICE, Agency.

CH075282C0533.
| Attorneys and Law Firms
April 5, 1988.
*156 Andrew J. Ruzicho, Columbus, Ohio, for
Employee petitioned for enforcement of decision reversing appellant.
his removal from a Postal Service position. The Merit
Suzanne Hassell Milton, Washington, D.C., for agency.
Systems Protection Board held that: (1) the Board lacked
authority under Title VII or any other law to award Before LEVINSON, Chairman, and JOHNSON, Vice
reinstated employee compensation for any increase in his Chairman.
income tax liability which he would incur because of
receipt of his back pay in one lump sum and because of an
intervening change in the tax laws, and (2) in complying
OPINION AND ORDER
with order to reinstate removed employee, agency was not
required to place employee in position to which he claimed This case involves a petition for enforcement of the
he would have been promoted but for the removal action. Board's decision in appellant's appeal reversing his
removal from his position with the United States
Petition dismissed. Postal Service. The agency has filed a *157 brief in
disagreement with one finding of the administrative
judge's compliance recommendation, and the appellant
has challenged another finding of the administrative
West Headnotes (2)
judge. For the reasons stated below, the Board finds the
agency in compliance with our order and DISMISSES
[1] Public Employment appellant's petition for enforcement.
Lost income or benefits; back pay
The Merit Systems Protection Board lacked
authority under Title VII or any other law BACKGROUND
to award reinstated employee compensation
for any increase in his income tax liability In its decision of March 5, 1987, 32 M.S.P.R. 642
which he would incur because of receipt of (Table), the Board concurred in the finding of the Equal
his back pay in one lump sum and because Employment Opportunity Commission that appellant's
of an intervening change in the tax laws. 42 removal was based on race discrimination, and the Board
U.S.C.A. § 2000e et seq. ordered the agency to cancel appellant's removal and
restore him retroactively to the date of the removal
2 Cases that cite this headnote with back pay and benefits in accordance with Postal
Service regulations. See Frazier v. United States Postal
[2] Public Employment Service, 26 M.S.P.R. 584, 585 (1985). In his petition for
Order restoring status quo ante enforcement, appellant contends that the agency is not in
compliance with the Board's decision because (1) it has

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Wilson v. U.S. Postal Service, 38 M.S.P.R. 156 (1988)

not retroactively reinstated him in the position to which he overwhelmingly determined that compensatory damages
would have been promoted but for the unlawful removal other than back pay and restoration of lost work benefits
action and with the back pay he would have earned in are not available under Title VII. While certain types
the higher level position and (2) it has not compensated of equitable relief such as back pay and restoration of
him for the additional tax liability he incurred as a result benefits are “compensatory,” the courts have concluded
of receiving his pay in a lump sum in one year and the that Title VII does not authorize monetary awards to
repeal of the income averaging provisions of the Internal compensate for “consequential damages” of employment
Revenue Code. discrimination such as those appellant seeks. E.g., Protos
v. Volkswagen of America, Inc., 797 F.2d 129, 137–39
In her compliance recommendation, the administrative (3rd Cir.), cert. denied, 479 U.S. 972, 107 S.Ct. 474, 93
judge found that the agency returned appellant to duty L.Ed.2d 418 (1986) (diminished unemployment benefits
in the same or a substantially equivalent position to the after subsequent layoff which would have occurred in any
one from which he was removed and therefore rejected event); Walker v. Ford Motor Co., 684 F.2d 1355, 1363–
his allegation of agency noncompliance in this regard. 64, nn. 12 & 16 (11th Cir.1982) (moving expenses, loss
However, she determined that appellant was entitled to on sale of assets, and ruined credit rating); Farmer v.
compensation for the increased income tax liability he ARA Services, Inc., 660 F.2d 1096, 1107 (6th Cir.1981)
will suffer as a result of his removal because of receipt (emotional distress).
of his pay in one lump sum in 1987 and the repeal of
income averaging by the Tax Reform Act of 1986. The The decision on which the administrative judge chiefly
administrative judge therefore recommended to the Board relies, Sears v. Atchison, Topeka, & Santa Fe Railway, Co.,
that it find that compliance with its final order requires the 749 F.2d 1451 (10th Cir.1984), cert. denied sub nom. United
agency to award appellant $39,773 to compensate him for Transportation Union v. Sears, 471 U.S. 1099, 105 S.Ct.
the increased federal and state income tax liability he will 2322, 85 L.Ed.2d 840 (1985), is the only court of appeals
incur in 1987. decision under Title VII to reach a different conclusion.
There the 10th Circuit relied on the protracted nature of
the litigation to sustain an award compensating plaintiffs
for their additional tax liability resulting from receipt of
ANALYSIS
over seventeen years of back pay in one lump sum. At the
The Board Lacks Authority To Award Appellant same time, however, the court acknowledged that such a
Compensation For Any Increase In His Income Tax “tax component” may not be appropriate in a typical Title
Liability. VII case. Id. at 1456. The court did not discuss contrary
[1] Appellant contends that he is entitled as part of precedent in the 10th Circuit, Pearson v. Western Electric
his back pay award to compensation for the increased Co., 542 F.2d 1150, 1151–52 (10th Cir.1976), where the
tax liability he will incur as a result of his removal court ruled that neither compensatory *159 nor punitive
and an intervening change in the tax laws. The Postal damages are authorized by Title VII and denied damages
Service regulations under which the Board's *158 for mental distress and loss of a good credit rating.
award was made do not authorize such compensation.
Appellant does not contend otherwise, but instead bases Whatever the merits of the Sears court's reliance on the
his claim on his having prevailed on a finding of race extraordinary length of the litigation there to depart from
discrimination and on the “make whole” purpose of the general rule, there is less reason to do so here, given
the remedies provided by Title VII of the Civil Rights the much shorter period (about five years) for which
Act of 1964, 42 U.S.C. § 2000e et seq., as described by appellant was awarded back pay. Another consideration
the Supreme Court in Albemarle Paper Co. v. Moody, supporting the Board's adherence to the general rule
422 U.S. 405, 418–19, 95 S.Ct. 2362, 2372, 45 L.Ed.2d that losses outside the employment relationship are not
280 (1975). However, Albermarle, which discusses back compensable under Title VII is that the relief appellant
pay as part of the equitable relief available under Title seeks is not against a private employer, but against
VII, makes no mention of damages for incidental or the federal government. A remedy against the sovereign
consequential losses which are not part of the employment requires express consent and is not to be implied. Lehman
v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 2701,
relationship. 1 Moreover, the courts of appeals have

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Wilson v. U.S. Postal Service, 38 M.S.P.R. 156 (1988)

69 L.Ed.2d 548 (1981). 2 Mindful of this rule and However, as the administrative judge found, appellant has
the absence of any explicit statutory authorization of failed to support this conclusory assertion with evidence
consequential damages, the Board finds that it lacks that would clearly establish it. The two examples appellant
authority under Title VII or any other law to award gives of temporary assignees to the General Supervisor of
appellant the additional compensation which he seeks. Mails position who were subsequently promoted fall far
See Carter v. Marshall, 457 F.Supp. 38, 40 (D.D.C.1978) short of the necessary proof.
(noting, in a suit against the federal government, the
parties' agreement that Title VII does not authorize Appellant's affidavit which he introduced to support
compensatory damages). Cf. Smith v. Office of Personnel his claims to other promotions also fails to establish
Management, 778 F.2d 258, 261–63 (5th Cir.1985) (finding these claims. His opinion that his qualifications were
that compensatory damages are not recoverable against as good as those of the selectees for three higher level
the federal government in an age discrimination suit under positions is insufficient to show that appellant would have
29 U.S.C. § 633a in the absence of explicit authorization been selected. His assertion that he was more qualified
for their recovery and in light of their unavailability than the selectees for three other vacancies because
the selectees were subordinate to him at the time of
under Title VII, which was the pattern for section 633a). 3
his removal is unsupported by any evidence concerning
Cf. also 61 Comp.Gen. 578, 580 (1982) (neither Back
the qualifications for the positions showing that this
Pay Act nor any other authority provides for payment
fact alone would have controlled the selection. As the
of compensatory damages on correction of personnel
administrative judge found, appellant's arguments and
action); Naekel v. Department of Transportation, 32
affidavit statements are speculative in nature and fail to
M.S.P.R. 488, 495 (1987) (same). Thus we reject the *160
establish that he would have been promoted to any of the
administrative judge's recommendation on this issue and
find that agency compliance with the Board's order does positions he cites. 4
not require compensation of appellant for any increase in
his tax liability. *161 Appellant objects to the legal standard employed
by the administrative judge, but he fails to address the
precedents she cites which place the burden squarely
The Agency Restored Appellant To The Position From on the employee to “clearly establish” that he would
Which He Was Removed, And He Has Shown No have been promoted during the interim had he not been
Entitlement To A Promotion. removed. See Boese v. Department of the Air Force, 784
[2] Appellant concedes that the agency retroactively F.2d 388, 390 (Fed.Cir.1986); Power v. United States, 597
restored him to the level 15 position from which he F.2d 258, 261–62, 220 Ct.Cl. 157 (1979), cert. denied, 444
was removed with the step increases to which he would U.S. 1044, 100 S.Ct. 731, 62 L.Ed.2d 730 (1980). The
otherwise have been entitled. Appellant contends that the cases on which appellant relies to support his contention
agency is nonetheless not in compliance because it failed that the agency should be required to show he would
to give him promotions which he asserts he would have not have been promoted are inapposite. 5 Thus, we find
received had he not been removed. The administrative that the agency has complied with our reinstatement order
judge rejected this claim because appellant cited no law and that appellant has failed to show entitlement to a
mandating his promotion and failed to submit evidence retroactive promotion.
clearly establishing that he would in fact have been
promoted to any of the higher level positions he claimed. This is the final decision of the Merit Systems Protection
Board, DISMISSING the petition for enforcement.
In his petition for review of this finding, appellant
reiterates his claim that he was entitled to promotion to
the General Supervisor of Mails position in which he
was working under a temporary assignment immediately NOTICE TO APPELLANT
prior to his removal. Appellant asserts that the purpose
You have one of several alternatives to choose from if you
of such temporary assignments is to train the assignee
want further review of this decision.
for the higher level position and that “as a matter
of practice” the assignee is promoted to the position.

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Wilson v. U.S. Postal Service, 38 M.S.P.R. 156 (1988)

Discrimination Claims discrimination based on race, color, religion, sex, national
origin, or a handicapping condition, you may be entitled
You may petition the Equal Employment Opportunity
to representation by a court-appointed lawyer and to
Commission (EEOC) to consider the Board's decision
request waiver of any requirement of prepayment of fees,
on your claims under the discrimination laws, and still
costs, or other security. 42 U.S.C. § 2000e–5(f); 29 U.S.C.
preserve any right you may have to judicial consideration
§ 794a.
of your discrimination law claims or your other claims.
5 U.S.C. § 7702(b)(1). The address of the EEOC is as
follows: Director, Office of Review and Appeals, Equal Other Claims
Employment Opportunity Commission, 5203 Leesburg If you choose not to seek review of the Board's decision
Pike, Suite 900, Falls Church, Virginia 22041. The law is on your claims under the discrimination laws, you may
unsettled regarding the time limit for filing where a party petition the United States Court of Appeals for the
is represented. Therefore, you must file a petition with the Federal Circuit to review the decision on issues other than
EEOC no later than thirty days after receipt of this order discrimination, if the court has jurisdiction. 5 U.S.C. §
by you or your representative, whichever occurs first. 5 7703(b)(1). The address of the court is 717 Madison Place,
U.S.C. § 7702(b)(1). NW., Washington, DC 20439. You must file a petition
with the court no later than thirty days after receipt of
*162 If you do not petition the EEOC for consideration this order by you or your representative, whichever occurs
of the Board's decision on your discrimination law claims, first. 5 U.S.C. § 7703(b)(1).
or if you do petition the EEOC and it affirms the Board's
decision in your appeal, you may choose to file a civil For the Board:
action on both your discrimination law claims and your
other claims in an appropriate United States district court.
5 U.S.C. § 7703(b)(2). The law is unsettled regarding ROBERT E. TAYLOR,
the time limit for filing where a party is represented.
Therefore, if you elect to file a civil action without first WASHINGTON, D.C.
petitioning the EEOC, you must file a petition with the
district court no later than thirty days after receipt of this
All Citations
order by you or your representative, whichever occurs
first. 5 U.S.C. § 7703(b)(2). If the action involves a claim of 38 M.S.P.R. 156

Footnotes
1 The other Supreme Court cases on which appellant relies address back pay and retroactive seniority remedies under
Title VII; none of them makes any reference to consequential damages such as those appellant seeks. See Franks v.
Bowman Transportation Co., Inc., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976) (retroactive seniority); International
Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (retroactive seniority);
Ford Motor Co. v. EEOC, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982) (back pay and retroactive seniority).
2 As a federal entity, see 39 U.S.C. § 201, the Postal service is protected by sovereign immunity. The question of whether
39 U.S.C. § 401(1), by authorizing the Postal Service to sue and be sued in its own name, waives the Postal Service's
immunity from awards of interest on back pay under Title VII is now before the Supreme Court. Loeffler v. Tisch, 806
F.2d 817 (8th Cir.1986) (en banc), cert. granted, 483 U.S. 1004, 107 S.Ct. 3227, 97 L.Ed.2d 733 (1987). The question
of whether the Postal Service should be treated like a private employer for purposes of awarding interest is, of course, a
different issue from the question of whether Title VII authorizes consequential damages against any employer, a question
answered in the negative by most courts of appeals.
3 The administrative judge also relied on Gelof v. Papineau, 648 F.Supp. 912, 930 (D.Del.1986), awarding damages against
a state employer under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., to compensate
for the additional tax consequences the plaintiff suffered from receiving a lump sum award after repeal of the income
tax averaging provisions. The court failed to mention the great weight of contrary authority holding that compensatory
damages are not available under the ADEA. See Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146–48 &
n. 3 (2d Cir.1984).

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Wilson v. U.S. Postal Service, 38 M.S.P.R. 156 (1988)

4 In his submissions to the Board, appellant states that he would have been able to show his entitlement to the positions he
claims had the Postal Service produced the personnel files of successful applicants which he requested, and he asks the
Board to order their discovery. However, the record discloses no request from appellant for discovery of these files within
the time allowed by the administrative judge for discovery prior to her compliance recommendation. Appellant's request
at this stage of the proceedings is too late. See Covert v. Department of the Navy, 31 M.S.P.R. 376, 381–82 (1986).
5 Franks v. Bowman Transportation Co., Inc., 424 U.S. 747, 772–73, 96 S.Ct. 1251, 1268, 47 L.Ed.2d 444 (1976), required
the employer to show that reapplying class members were not victims of previous hiring discrimination before retroactive
seniority could be denied them if hired, but only because a pattern and practice of hiring discrimination had already been
established. Henry v. Lennox Industries, Inc., 768 F.2d 746, 753 (6th Cir.1985), found it was error to resolve against
the employee a gap in her otherwise specific evidence concerning the amount of interim earnings which were to be
offset against her back pay and remanded for further calculation of her award. The court recognized, however, that the
employee has the burden of proving entitlement to back pay. Neither of these cases addressed any issue concerning
retroactive promotion.

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