Wilson v. U.S. Postal Service, 38 M.S.P.R.
156 (1988)
KeyCite Yellow Flag - Negative Treatment
Remanded by Larry L. Wilson, Petitioner, v. Anthony M. Frank,
Postmaster General (USPS-ER), Agency., E.E.O.C., August 24, 1988
38 M.S.P.R. 156
Merit Systems Protection Board.
Larry L. WILSON, Appellant,
v.
UNITED STATES POSTAL SERVICE, Agency.
CH075282C0533.
| Attorneys and Law Firms
April 5, 1988.
Employee petitioned for enforcement of decision reversing
his removal from a Postal Service position. The Merit
Systems Protection Board held that: (1) the Board lacked
authority under Title VII or any other law to award
reinstated employee compensation for any increase in his
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
with order to reinstate removed employee, agency was not
required to place employee in position to which he claimed
he would have been promoted but for the removal action.
Petition dismissed.
West Headnotes (2)
[1] Public Employment
Lost income or benefits; back pay
The Merit Systems Protection Board lacked
authority under Title VII or any other law
to award reinstated employee compensation
for any increase in his 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. 42
U.S.C.A. 2000e et seq.
2 Cases that cite this headnote
[2] Public Employment
Order restoring status quo ante
2017 Thomson Reuters. No claim to original U.S. Government Works.
In complying with order to reinstate
employee, agency was not required to place
employee in position to which he claimed
he would have been promoted but for the
removal action; employee failed to establish
that he would have been promoted to any of
the positions he cited.
Cases that cite this headnote
*156 Andrew J. Ruzicho, Columbus, Ohio, for
appellant.
Suzanne Hassell Milton, Washington, D.C., for agency.
Before LEVINSON, Chairman, and JOHNSON, Vice
Chairman.
OPINION AND ORDER
This case involves a petition for enforcement of the
Board's decision in appellant's appeal reversing his
removal from his position with the United States
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
judge. For the reasons stated below, the Board finds the
agency in compliance with our order and DISMISSES
appellant's petition for enforcement.
BACKGROUND
In its decision of March 5, 1987, 32 M.S.P.R. 642
(Table), the Board concurred in the finding of the Equal
Employment Opportunity Commission that appellant's
removal was based on race discrimination, and the Board
ordered the agency to cancel appellant's removal and
restore him retroactively to the date of the removal
with back pay and benefits in accordance with Postal
Service regulations. See Frazier v. United States Postal
Service, 26 M.S.P.R. 584, 585 (1985). In his petition for
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
would have been promoted but for the unlawful removal
action and with the back pay he would have earned in
the higher level position and (2) it has not compensated
him for the additional tax liability he incurred as a result
of receiving his pay in a lump sum in one year and the
repeal of the income averaging provisions of the Internal
Revenue Code.
In her compliance recommendation, the administrative
judge found that the agency returned appellant to duty
in the same or a substantially equivalent position to the
one from which he was removed and therefore rejected
his allegation of agency noncompliance in this regard.
However, she determined that appellant was entitled to
compensation for the increased income tax liability he
will suffer as a result of his removal because of receipt
of his pay in one lump sum in 1987 and the repeal of
income averaging by the Tax Reform Act of 1986. The
administrative judge therefore recommended to the Board
that it find that compliance with its final order requires the
agency to award appellant $39,773 to compensate him for
the increased federal and state income tax liability he will
incur in 1987.
ANALYSIS
The Board Lacks Authority To Award Appellant
Compensation For Any Increase In His Income Tax
Liability.
[1] Appellant contends that he is entitled as part of
his back pay award to compensation for the increased
tax liability he will incur as a result of his removal
and an intervening change in the tax laws. The Postal
Service regulations under which the Board's *158
award was made do not authorize such compensation.
Appellant does not contend otherwise, but instead bases
his claim on his having prevailed on a finding of race
discrimination and on the make whole purpose of
the remedies provided by Title VII of the Civil Rights
Act of 1964, 42 U.S.C. 2000e et seq., as described by
the Supreme Court in Albemarle Paper Co. v. Moody,
422 U.S. 405, 41819, 95 S.Ct. 2362, 2372, 45 L.Ed.2d
280 (1975). However, Albermarle, which discusses back
pay as part of the equitable relief available under Title
VII, makes no mention of damages for incidental or
consequential losses which are not part of the employment
relationship. 1 Moreover, the courts of appeals have
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overwhelmingly determined that compensatory damages
other than back pay and restoration of lost work benefits
are not available under Title VII. While certain types
of equitable relief such as back pay and restoration of
benefits are compensatory, the courts have concluded
that Title VII does not authorize monetary awards to
compensate for consequential damages of employment
discrimination such as those appellant seeks. E.g., Protos
v. Volkswagen of America, Inc., 797 F.2d 129, 13739
(3rd Cir.), cert. denied, 479 U.S. 972, 107 S.Ct. 474, 93
L.Ed.2d 418 (1986) (diminished unemployment benefits
after subsequent layoff which would have occurred in any
event); Walker v. Ford Motor Co., 684 F.2d 1355, 1363
64, nn. 12 & 16 (11th Cir.1982) (moving expenses, loss
on sale of assets, and ruined credit rating); Farmer v.
ARA Services, Inc., 660 F.2d 1096, 1107 (6th Cir.1981)
(emotional distress).
The decision on which the administrative judge chiefly
relies, Sears v. Atchison, Topeka, & Santa Fe Railway, Co.,
749 F.2d 1451 (10th Cir.1984), cert. denied sub nom. United
Transportation Union v. Sears, 471 U.S. 1099, 105 S.Ct.
2322, 85 L.Ed.2d 840 (1985), is the only court of appeals
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
over seventeen years of back pay in one lump sum. At the
same time, however, the court acknowledged that such a
tax component may not be appropriate in a typical Title
VII case. Id. at 1456. The court did not discuss contrary
precedent in the 10th Circuit, Pearson v. Western Electric
Co., 542 F.2d 1150, 115152 (10th Cir.1976), where the
court ruled that neither compensatory *159 nor punitive
damages are authorized by Title VII and denied damages
for mental distress and loss of a good credit rating.
Whatever the merits of the Sears court's reliance on the
extraordinary length of the litigation there to depart from
the general rule, there is less reason to do so here, given
the much shorter period (about five years) for which
appellant was awarded back pay. Another consideration
supporting the Board's adherence to the general rule
that losses outside the employment relationship are not
compensable under Title VII is that the relief appellant
seeks is not against a private employer, but against
the federal government. A remedy against the sovereign
requires express consent and is not to be implied. Lehman
v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 2701,
2
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
the absence of any explicit statutory authorization of
consequential damages, the Board finds that it lacks
authority under Title VII or any other law to award
appellant the additional compensation which he seeks.
See Carter v. Marshall, 457 F.Supp. 38, 40 (D.D.C.1978)
(noting, in a suit against the federal government, the
parties' agreement that Title VII does not authorize
compensatory damages). Cf. Smith v. Office of Personnel
Management, 778 F.2d 258, 26163 (5th Cir.1985) (finding
that compensatory damages are not recoverable against
the federal government in an age discrimination suit under
29 U.S.C. 633a in the absence of explicit authorization
for their recovery and in light of their unavailability
under Title VII, which was the pattern for section 633a). 3
Cf. also 61 Comp.Gen. 578, 580 (1982) (neither Back
Pay Act nor any other authority provides for payment
of compensatory damages on correction of personnel
action); Naekel v. Department of Transportation, 32
M.S.P.R. 488, 495 (1987) (same). Thus we reject the *160
administrative judge's recommendation on this issue and
find that agency compliance with the Board's order does
not require compensation of appellant for any increase in
his tax liability.
The Agency Restored Appellant To The Position From
Which He Was Removed, And He Has Shown No
Entitlement To A Promotion.
[2] Appellant concedes that the agency retroactively
restored him to the level 15 position from which he
was removed with the step increases to which he would
otherwise have been entitled. Appellant contends that the
agency is nonetheless not in compliance because it failed
to give him promotions which he asserts he would have
received had he not been removed. The administrative
judge rejected this claim because appellant cited no law
mandating his promotion and failed to submit evidence
clearly establishing that he would in fact have been
promoted to any of the higher level positions he claimed.
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
prior to his removal. Appellant asserts that the purpose
of such temporary assignments is to train the assignee
for the higher level position and that as a matter
of practice the assignee is promoted to the position.
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However, as the administrative judge found, appellant has
failed to support this conclusory assertion with evidence
that would clearly establish it. The two examples appellant
gives of temporary assignees to the General Supervisor of
Mails position who were subsequently promoted fall far
short of the necessary proof.
Appellant's affidavit which he introduced to support
his claims to other promotions also fails to establish
these claims. His opinion that his qualifications were
as good as those of the selectees for three higher level
positions is insufficient to show that appellant would have
been selected. His assertion that he was more qualified
than the selectees for three other vacancies because
the selectees were subordinate to him at the time of
his removal is unsupported by any evidence concerning
the qualifications for the positions showing that this
fact alone would have controlled the selection. As the
administrative judge found, appellant's arguments and
affidavit statements are speculative in nature and fail to
establish that he would have been promoted to any of the
positions he cites. 4
*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
on the employee to clearly establish that he would
have been promoted during the interim had he not been
removed. See Boese v. Department of the Air Force, 784
F.2d 388, 390 (Fed.Cir.1986); Power v. United States, 597
F.2d 258, 26162, 220 Ct.Cl. 157 (1979), cert. denied, 444
U.S. 1044, 100 S.Ct. 731, 62 L.Ed.2d 730 (1980). The
cases on which appellant relies to support his contention
that the agency should be required to show he would
not have been promoted are inapposite. 5 Thus, we find
that the agency has complied with our reinstatement order
and that appellant has failed to show entitlement to a
retroactive promotion.
This is the final decision of the Merit Systems Protection
Board, DISMISSING the petition for enforcement.
NOTICE TO APPELLANT
You have one of several alternatives to choose from if you
want further review of this decision.
3
Wilson v. U.S. Postal Service, 38 M.S.P.R. 156 (1988)

Discrimination Claims discrimination based on race, color, religion, sex, national

You may petition the Equal Employment Opportunity
Commission (EEOC) to consider the Board's decision
on your claims under the discrimination laws, and still
preserve any right you may have to judicial consideration
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
Employment Opportunity Commission, 5203 Leesburg
Pike, Suite 900, Falls Church, Virginia 22041. The law is
unsettled regarding the time limit for filing where a party
is represented. Therefore, you must file a petition with the
EEOC no later than thirty days after receipt of this order
by you or your representative, whichever occurs first. 5
U.S.C. 7702(b)(1).
*162 If you do not petition the EEOC for consideration
of the Board's decision on your discrimination law claims,
or if you do petition the EEOC and it affirms the Board's
decision in your appeal, you may choose to file a civil
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
the time limit for filing where a party is represented.
Therefore, if you elect to file a civil action without first
petitioning the EEOC, you must file a petition with the
district court no later than thirty days after receipt of this
order by you or your representative, whichever occurs
first. 5 U.S.C. 7703(b)(2). If the action involves a claim of
origin, or a handicapping condition, you may be entitled
to representation by a court-appointed lawyer and to
request waiver of any requirement of prepayment of fees,
costs, or other security. 42 U.S.C. 2000e5(f); 29 U.S.C.
794a.
Other Claims
If you choose not to seek review of the Board's decision
on your claims under the discrimination laws, you may
petition the United States Court of Appeals for the
Federal Circuit to review the decision on issues other than
discrimination, if the court has jurisdiction. 5 U.S.C.
7703(b)(1). The address of the court is 717 Madison Place,
NW., Washington, DC 20439. You must file a petition
with the court no later than thirty days after receipt of
this order by you or your representative, whichever occurs
first. 5 U.S.C. 7703(b)(1).
For the Board:
ROBERT E. TAYLOR,
WASHINGTON, D.C.
All Citations
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, 14648 &
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, 38182 (1986).
5 Franks v. Bowman Transportation Co., Inc., 424 U.S. 747, 77273, 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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