                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     FRANK J. MAINO,                                 DOCKET NUMBER
                   Appellant,                        NY-0752-14-0302-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: July 7, 2015
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL *

           Stephanie E. Hosea, Esquire, Washington, D.C., for the appellant.

           Alison K. Sablick, Esquire, and Heather A. Southwell, Esquire, New York,
             New York, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed this appeal as moot. For the reasons discussed below, we GRANT the
     appellant’s petition for review and REMAND the case to the field office for
     further adjudication in accordance with this Order.


     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant filed this appeal challenging a 30-day suspension from his
     Tax Examining Technician position with the agency’s Internal Revenue Service.
     Initial Appeal File (IAF), Tabs 1, 22. After the administrative judge concluded
     the hearing, the agency moved to stay issuance of the initial decision because it
     claimed that it had rescinded the suspension and needed some time to complete
     the processing of back pay and benefits associated with the appellant’s
     reinstatement, which it contended would then render the appeal moot.           IAF,
     Tab 27. The appellant responded in opposition to the agency’s motion, arguing
     that his claim of reprisal for protected equal employment opportunity (EEO)
     activity, for which he sought compensatory damages, prevented the appeal from
     being rendered moot. IAF, Tab 30. After holding a telephonic status conference,
     the administrative judge granted the agency’s motion and suspended the case to
     give the agency time to demonstrate that it had returned the appellant to the status
     quo ante.   IAF, Tabs 33-34; see 5 C.F.R. § 1201.28.         After back and forth
     pleadings regarding the agency’s progress, the administrative judge found that the
     agency demonstrated that it had completely rescinded the suspension and had
     returned the appellant to the status quo ante. IAF, Tab 43, Initial Decision (ID)
     at 3-4. The administrative judge then went on to find that the appellant failed to
     establish his affirmative defense of retaliation for protected EEO activity, and
     dismissed the appeal as moot. ID at 4-9.
¶3        In his timely-filed petition for review, the appellant argues that the
     administrative judge erred in granting the agency’s motion and suspending the
     appeal in order for the agency to provide proof that it had rescinded the
     suspension. Petition for Review (PFR) File, Tab 1 at 10. He further argues that
     the administrative judge erred in dismissing the appeal as moot and instead
     should have adjudicated the appeal on the merits because of his retaliation claim
     and the agency’s continuing failure to restore him to the status quo ante. ID
     at 10-12, 15-16. The appellant also complains that the administrative judge failed
                                                                                      3

     to enforce her own orders, allowing the agency additional time past the deadline
     that she set for the agency to demonstrate that it had fully rescinded the
     suspension, and that the administrative judge also improperly required him to
     prove his retaliation claim in order to avoid mootness. ID at 12-15. Lastly, the
     appellant asserts that the administrative judge erred in rejecting his retaliation
     claim.      ID at 16-21. In that regard, the appellant contends that his first-line
     supervisor was aware of his prior EEO activity, and that the deciding official not
     only had specific knowledge of it, but, contrary to the administrative judge’s
     findings, failed to state a legitimate nondiscriminatory reason for issuing the
     30-day suspension against him. Id. The agency responds in opposition to the
     appellant’s petition for review and he replies to the agency’s response. PFR File,
     Tabs 3-4.
¶4        In the initial decision, the administrative judge found that the agency had
     completely rescinded the appellant’s suspension based on the agency’s
     January 30, 2015 pleading in which it asserted that it had paid the appellant back
     pay with interest, removed documentation of the suspension from his Official
     Personnel File (OPF), restored his leave balances, and made appropriate
     contributions to his Thrift Savings Plan account. ID at 4; see IAF, Tab 42. In
     support of its claim that it had rescinded the appellant’s suspension, the agency
     provided an unsworn letter from the chief of its Austin Payroll Center and a series
     of computer “[s]creenshots detailing the contributions” and leave balances at
     issue. IAF, Tab 42 at 5-19. Although the screenshots may evidence the agency’s
     payment of back pay and interest, and the restoration of his leave balances, the
     description of the evidence is terse and does not appear complete. Id. at 7-19.
     Moreover, the statements of a party’s representative in a pleading do not
     constitute evidence. E.g., Hendricks v. Department of the Navy, 69 M.S.P.R. 163,
     168 (1995).
¶5        Additionally, the agency’s unsworn assertion that any references to the
     appellant’s suspension have been removed from his OPF is insufficient to
                                                                                       4

     demonstrate that the agency has actually done so. See id.; see also Hassman v.
     Department of the Army, 61 M.S.P.R. 356, 359 (1994) (unsworn hearsay
     statement constituted mere allegations rather than competent evidence); Gonzales
     v. U.S. Postal Service, 44 M.S.P.R. 517, 519 (1990) (when an agency rescinds an
     adverse action, it must remove all references to such action from the appellant’s
     personnel file).   Thus, on the record before us, we are unable to determine
     whether the action was completely rescinded and the appellant was returned to the
     status quo ante. Moreover, in contrast to the agency’s unsworn statements, the
     appellant supplied a sworn affidavit in which he asserted that the agency had not
     yet fully restored him to the status quo ante.      IAF, Tab 41 at 7; see Social
     Security Administration v. Whittlesey, 59 M.S.P.R. 684, 692 (1993) (a sworn
     statement has greater weight than one that is not sworn), aff’d, 39 F.3d 1197 (Fed.
     Cir. 1994) (Table). Upon remand, the administrative judge should determine if
     the appellant has been returned to the status quo ante such that the appeal is truly
     moot, and if not, she should adjudicate the appeal on the merits. See, e.g., Deas
     v. Department of Transportation, 108 M.S.P.R. 637, ¶ 11 (2008).
¶6        As for the appellant’s EEO reprisal claim, the administrative judge
     thoroughly analyzed this issue and found that the appellant failed to establish a
     nexus between his alleged retaliation and his suspension such that he failed to
     prove by preponderant evidence that the agency retaliated against him based on
     his prior EEO activity. ID at 4-8. In doing so, the administrative judge cited the
     hearing testimony of the proposing and deciding officials, as well at the testimony
     of the appellant’s supervisor, finding that those individuals testified credibly
     based upon their observed demeanor and gave straightforward, unwavering
     testimony.   ID at 6-7.   The Board must give deference to an administrative
     judge’s credibility determinations when they are based, explicitly or implicitly,
     on the observation of the demeanor of witnesses testifying at a hearing; the Board
     may overturn such determinations only when it has “sufficiently sound” reasons
     for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
                                                                               5

2002) . The appellant fails to provide such sufficiently sound reasons on review.
The administrative judge may therefore adopt her findings on this issue upon
remand.

                                    ORDER
     For the reasons discussed above, we REMAND this case to the field office
for further adjudication in accordance with this Remand Order.




FOR THE BOARD:                          ______________________________
                                        William D. Spencer
                                        Clerk of the Board
Washington, D.C.
