                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ANTHONY D. NATTY,                               DOCKET NUMBER
                  Appellant,                         SF-0752-14-0165-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: February 5, 2015
                   Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Anthony D. Natty, City Of Industry, California, pro se.

           Kristen Walker, Long Beach, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


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


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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 agency removed the appellant from his Mail Handler position on
     charges of unacceptable conduct and lack of candor effective November 30, 2013.
     Initial Appeal File (IAF), Tab 4 at 12-17. After the appellant filed an appeal of
     his removal, the agency rescinded the adverse action and moved to dismiss the
     appeal as moot. IAF, Tab 22. Because the appellant raised affirmative defenses
     of disparate treatment based on race, color, and national origin, as well as
     retaliation for filing prior equal employment opportunity (EEO) complaints and a
     Board appeal, the administrative judge directed the appellant to present his
     evidence in support of his affirmative defenses in order to determine if a hearing
     was necessary.   Id. In response, the appellant argued that the agency did not
     completely rescind its removal action and that the agency also failed to discipline
     other employees who were alleged to have engaged in similar acts of
     unacceptable misconduct in the workplace, thus entitling him to a hearing on his
     affirmative defenses. IAF, Tab 13 at 9, Tab 35 at 5.
¶3        After receiving several submissions from both parties, the administrative
     judge issued an initial decision finding that the appellant had been returned to the
     status quo ante because the agency’s removal action had been completely
     rescinded and that the appellant also failed to establish a genuine issue of
     material fact warranting a hearing on any of his affirmative defenses. IAF, Tab
     50, Initial Decision (ID). Specifically, the administrative judge found that the
     agency established that it paid the appellant the proper amount of lost back pay,
     that the appellant was not entitled to interest on his back pay, that there was no
     reference to the removal action in his personnel file, and that he had been credited
     with the maximum annual leave amount which he was allowed to carryover from
     one calendar year to the next under the agency’s Employee and Labor Relations
     Manual (ELM). ID at 4-9. In making this latter finding, the administrative judge
     acknowledged that the appellant lost 21.5 hours of annual leave, but found that
     the appellant was not entitled to this amount because it exceeded the agency’s
                                                                                      3

     440-hour annual leave carryover limit and that the appellant was ineligible to
     participate in the agency’s leave buyback program and thus could not receive cash
     for this lost amount. ID at 7. Lastly, the administrative judge found that the
     appellant failed to present a genuine issue of material fact on his claims of
     disparate treatment because he failed to identify similarly-situated comparators of
     a different race, color, and national origin who were treated more favorably, and
     he also found no genuine issue of material fact on the appellant’s claim of
     retaliation because there was no evidence in the record of animosity or hostility
     directed toward him based on his prior protected activity. ID at 11-17.
¶4        The appellant has filed a petition for review arguing that the agency did not
     return him to the status quo ante because he was denied higher rates of pay on
     certain holidays, he did not receive interest on his lost back pay, and he did not
     receive all of the annual leave to which he was entitled. Petition for Review
     (PFR) File, Tab 1 at 7. The appellant also argues that the administrative judge
     overlooked evidence of comparator employees in granting the agency’s motion
     for summary judgment and denying his request for a hearing. Id. at 18-19, 26.
     The agency has filed a response in opposition to the appellant’s petition for
     review, and the appellant has filed a reply. PFR File, Tabs 3-4.

     The agency did not completely restore the appellant to the status quo ante and so
     the appellant’s appeal is not moot.
¶5        We have considered the appellant’s argument that the agency did not
     completely restore him to the status quo ante. PFR File, Tab 1 at 5-7. Although
     we agree with the administrative judge that the agency properly restored the
     appellant’s back pay, we find, for the reasons that follow, that the agency’s
     failure to credit the appellant with 21.5 hours of annual leave demonstrates that
     he has not been completely restored to the status quo ante and that the appellant’s
     appeal is not moot.
¶6        Even though an action may be within the Board’s jurisdiction, subsequent
     events may render an appeal moot and foreclose the Board’s review. Price v.
                                                                                           4

     U.S. Postal Service, 118 M.S.P.R. 222, ¶ 8 (2012). Mootness can arise at any
     stage of litigation and an appeal will be dismissed as moot when, by virtue of an
     intervening event, the Board cannot grant any effectual relief in favor of the
     appellant, as when the appellant, by whatever means, obtained all of the relief he
     could have obtained had he prevailed before the Board.              Id.   An agency’s
     unilateral modification of a personnel action after an appeal has been filed cannot
     divest the Board of jurisdiction unless the appellant consents to such divestiture
     or the agency completely rescinds the action being appealed. Id. For an appeal to
     be deemed moot, the agency’s rescission must be complete, i.e., the appellant
     must be returned to the status quo ante and not left in a worse position as a result
     of the cancellation than he would have been in if the matter had been adjudicated
     and he had prevailed. Id. If an appeal is not truly moot despite cancellation of
     the action under appeal, the proper remedy is for the Board to retain jurisdiction
     and to adjudicate the appeal on the merits. Id.
¶7         There is no dispute that the agency cancelled the removal action and
     returned the appellant to duty. IAF, Tab 21. Although the appellant argued to the
     administrative judge, and again argues on review, that he was not paid the correct
     amount of back pay for certain days, we have reviewed both the initial decision
     and the evidence submitted below and find no basis to conclude that the appellant
     is in a worse position because of the agency’s decision to rescind the removal
     action.   We agree with the administrative judge that the appellant ultimately
     received higher rates of pay for the 4 holidays between November 30, 2013, and
     February 24, 2014, including both holiday pay and overtime compensation. 2 See
     IAF, Tab 34 at 64-65, 94-95; ID at 5-6. We thus agree with the administrative

     2
       The record reflects that the appellant initially received holiday pay for December 25,
     2013, and January 1, 2014, and that he subsequently received holiday pay and overtime
     compensation for January 20, 2014, and February 17, 2014, along with overtime
     compensation for December 25, 2013, and January 1, 2014. IAF, Tab 34 at 64-65
     (showing pay codes for December 25, 2013, and January 1, 2014), 94-95 (back pay
     summary showing holiday and overtime pay for pay periods 1, 2, 3, and 5 of 2014).
                                                                                       5

     judge that the appellant received all the compensation he would have received had
     he prevailed in his Board appeal and that the agency properly compensated him
     for his back pay.
¶8           We further agree with the administrative judge that the agency verified that
     it never included documents pertaining to the appellant’s removal from his
     official personnel file, and we note that the appellant did not challenge the
     agency’s representations below. 3 ID at 5. We also agree with the administrative
     judge that, pursuant to Williams v. Department of the Army, 97 M.S.P.R. 246,
     ¶¶ 10-14 (2004), overruled on other grounds, Durr v. Department of Veterans
     Affairs, 99 M.S.P.R. 283 (2005), the appellant is not entitled to an award of
     interest on back pay following the agency’s voluntary rescission of its removal
     action.     Thus, to the extent that the appellant argues he was entitled to the
     payment of interest on his back pay, we find that this argument fails to
     demonstrate that the agency did not restore him to the status quo ante.
¶9           We conclude, however, that the appellant has not been fully restored to the
     status quo ante because he has been denied 21.5 hours of annual leave that he
     otherwise would have received had he prevailed in the appeal of his removal. See
     PFR File, Tab 1 at 7.          Pursuant to the U.S. Postal Service’s ELM, which
     incorporates provisions of the governing collective bargaining agreement, the
     appellant was eligible to carryover up to 440 hours of annual leave from one
     calendar year to the next. See IAF, Tab 39 at 6, 9; see also ELM § 512.321(a)
     (the maximum carryover annual leave amount for bargaining unit employees is
     440 hours).      After the agency retroactively credited the appellant with all the
     annual leave he was due as a result of the agency’s removal action, the appellant
     had a total of 461.5 hours of annual leave at the end of calendar year 2013, 21.5
     hours more than the 440-hour carryover limit.              See IAF, Tab 39 at 9 (the
     appellant’s pay statement reflecting a 2013 annual leave balance of 461.5 hours

     3
         The appellant has also not challenged this finding on review.
                                                                                       6

      and that only 440 hours were carried over). Although the agency argued below
      that the appellant was not entitled to receive annual leave in excess of the yearly
      carryover limit and that he was ineligible to receive compensation for those
      excess hours under the terms of the agency’s leave exchange program, see IAF,
      Tab 46 at 5-7, both the Back Pay Act and the ELM provide a mechanism for
      crediting an appellant with “annual leave . . . which is in excess of the maximum
      accumulation permitted by law.” 5 U.S.C. § 5596(b)(1)(B); see ELM § 436.2(d)
      (“Leave that is recredited as a result of the corrective action may not exceed the
      maximum amount of leave to which the employee was eligible (see [ELM]
      512.321).     Exception: Uncapped annual leave is recredited as a result of the
      reversal or modification of a removal by the Equal Employment Opportunity
      Commission or, for employees eligible for veterans’ preference, by the MSPB.”).
      Pursuant to the Back Pay Act, and the Office of Personnel Management’s
      implementing regulations, annual leave in excess of the maximum carryover limit
      “shall be credited to a separate leave account for the employee and shall be
      available for use by the employee within the time limits prescribed by
      regulations.”    5 U.S.C. § 5596(b)(1)(B); see 5 C.F.R. § 550.805(g)(1); ELM
      § 436.2(d).
¶10        Based on these standards, we find that the agency did not restore the
      appellant to the status quo ante when it denied him 21.5 hours of accrued annual
      leave. The Board, moreover, has previously ordered the U.S. Postal Service to
      credit employees with leave in excess of the maximum carryover limit under
      similar circumstances. See Hawkins v. U.S. Postal Service, 56 M.S.P.R. 633, 639
      (1993) (granting a petition for enforcement and ordering the restoration of annual
      leave in excess of the maximum carryover limit under the Back Pay Act).
      Accordingly, we find that the appellant has not been restored to the status quo
      ante because he would have been entitled to receive annual leave in excess of the
      maximum carryover amount had he prevailed in his Board appeal. See 5 U.S.C.
      § 5596(b)(1)(B); ELM § 436.2(d).      The administrative judge’s initial decision
                                                                                            7

      dismissing the appellant’s appeal as moot is REVERSED, and the appellant’s
      appeal is REMANDED to the administrative judge for adjudication on the
      merits. 4

      The administrative judge properly found that the appellant failed to present a
      genuine issue of material fact on his affirmative defenses.
¶11         On review, the appellant also argues that the administrative judge should
      have held a hearing on his affirmative defenses of race, color, and national origin
      disparate treatment. 5 PFR File, Tab 1 at 18-19, 26. Generally, the Board will not
      dismiss an appeal as moot when an appellant has an outstanding claim of
      discrimination and has raised what appears to be a further claim for compensatory
      damages before the Board because the agency’s complete rescission of the
      adverse action appealed does not afford the appellant all the relief that he could
      have received if the matter had been adjudicated and he had prevailed. White v.
      U.S. Postal Service, 117 M.S.P.R. 244, ¶ 15 (2012). If, however, the appellant’s
      factual allegations in support of his discrimination claims cannot support an
      inference that the agency acted in a manner that would entitle him to an award of
      compensatory damages, the Board may properly dismiss the appeal as moot. Id.;
      see Redd v. U.S. Postal Service, 101 M.S.P.R. 182, ¶ 13 (2006) (an administrative
      judge does not have to hold a hearing on an appellant’s discrimination affirmative
      defenses when the appellant’s factual allegations, taken as true, could not support
      an inference that the agency’s action was a pretext for discrimination).
¶12         An appellant asserting an affirmative defense of discrimination under Title
      VII carries the initial burden of demonstrating a prima facie case of
      discrimination, that is that: (1) the appellant is a member of a protected group;

      4
       The agency, however, can restore the appellant to the status quo ante by crediting him
      with 21.5 hours of accrued annual leave or its monetary equivalent.
      5
        The appellant does not address the dismissal of his affirmative defense of retaliation
      without a hearing on review. See PFR File, Tab 1 at 18-20. We have reviewed the
      in itial decision and find that the administrative judge reached the correct result by
      dismissing this claim without an evidentiary hearing.
                                                                                               8

      (2) he is similarly situated to one or more individuals who are not members of the
      protected group; and (3) he was treated more harshly or disparately than an
      individual who is not a member of his protected group. See Spahn v. Department
      of Justice, 93 M.S.P.R. 195, ¶ 10 (2003). For potential comparator employees to
      be deemed similarly situated, the Board has held that all relevant aspects of the
      appellant’s situation must be “nearly identical” to those of the comparator
      employees.       Id., ¶ 13.     Such a showing includes whether the comparator
      employees reported to the same supervisor as the appellant, were subjected to the
      same    disciplinary    standards,     and     engaged   in    similar   conduct   without
      differentiating or mitigating circumstances. Id.
¶13          Based on the record developed below, we find that the administrative judge
      properly dismissed the appellant’s affirmative defenses without a hearing. The
      administrative     judge      found,   based     on   the     absence    of   evidence   of
      similarly-situated comparators who were treated more favorably, that the
      appellant failed to establish a prima facie case of race, color, and national origin
      discrimination. ID at 12-13. We agree that the appellant’s discrimination claims
      fail based on this absence of proof. See, e.g., IAF, Tab 23 at 5-6 (identifying
      potential comparators without addressing their race, color, or national origin or
      their supervisory chains of command).            Although the appellant argued that a
      supervisory employee who threatened him and another employee in late 2012 and
      early 2013 was not disciplined, the appellant failed to identify the color, race, or
      national origin of the proffered comparator, and, even if the appellant had offered
      such evidence, we agree with the administrative judge that this proposed
      comparator is not similarly situated to the appellant because he was a higher-level
      employee who reported to a different supervisor. ID at 13; see IAF, Tab 13 at
      26--27. We also find no error with the administrative judge’s conclusion that the
      appellant’s charge of unacceptable conduct, which was based on a lengthy
      narrative detailing his verbal threats and invective directed toward another
      employee, differentiates the appellant from the putative comparator supervisory
                                                                                             9

      employee.    ID at 13 (quoting the notice of proposed removal).             On review,
      moreover, the appellant has failed to identify any evidence that the administrative
      judge failed to consider in dismissing his discrimination claims without a hearing,
      and we find no basis to conclude that the appellant established a genuine issue of
      material fact warranting a hearing on his affirmative defenses of race, color, and
      national origin discrimination. See PFR File, Tab 1 at 19. 6
¶14         We also conclude that the appellant failed to establish a genuine issue of
      material fact on his claim of retaliation warranting a hearing. ID at 16-17. As
      noted above, the appellant has not specifically challenged the dismissal of this
      affirmative defense without a hearing on review.                We concur with the
      administrative judge’s finding that, although it is undisputed that the appellant
      engaged in prior protected activity, the appellant has otherwise failed to
      demonstrate a genuine nexus between his prior protected activity and his removal.
      ID at 17; see Dwyer v. Department of Veterans Affairs, 107 M.S.P.R. 632, ¶ 7
      (2008). We agree that the severity of the appellant’s alleged misconduct justified
      the imposition of disciplinary action and that the appellant has failed to present
      any evidence tending to show that the agency’s legitimate, nonretaliatory reason
      for disciplining him was a pretext for discrimination. ID at 17. We thus agree
      with the administrative judge that the appellant’s retaliation affirmative defense
      was properly dismissed without a hearing.
¶15         Finally, to the extent that the appellant raises a claim on review of bias by
      the administrative judge, see PFR File, Tab 4 at 8, we find that the appellant has
      failed to overcome the presumption of honesty and integrity that accompanies
      administrative adjudicators, see Fox v. Department of the Army, 120 M.S.P.R.
      529, ¶ 46 (2014).


      6
         Although the appellant reasserts on review that other employees who threatened
      coworkers were treated more favorably by receivin g lesser discipline, he has not
      identified the putative comparators’ race, color, or national origin. See PFR File, Tab 1
      at 19-20.
                                                                               10

                                    ORDER
     For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.          On
remand, should the administrative judge subsequently determine that the
appellant has been restored to the status quo ante, the administrative judge may
adopt his prior findings dismissing the appellant’s affirmative defenses without a
hearing in a new initial decision.          See Viana v. Department of the
Treasury, 114 M.S.P.R. 659, ¶ 8 (2010).




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