UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2016 MSPB 5 

Docket No. AT-0752-14-0058-I-2 

Lisa J. Hess, 

Appellant, 

v. 

United States Postal Service, 

Agency. 

January 21, 2016 

Thomas J. Connick, Esquire, Beachwood, Ohio, for the appellant. 

Jason L. Hardy, Esquire, and Margaret L. Baskette, Esquire, Tampa, 

Florida, for the agency. 

BEFORE 

Susan Tsui Grundmann, Chairman 

Mark A. Robbins, Member 

OPINION AND ORDER 

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed her removal appeal as moot without holding the requested hearing. For 

the reasons that follow, we GRANT the appellant’s petition for review. We 

AFFIRM the initial decision insofar as it found that the appellant’s appeal of her 

removal and her whistleblower reprisal affirmative defense were both moot. 

However, we VACATE the initial decision insofar as it dismissed the appellant’s 

equal employment opportunity (EEO) affirmative defenses without a hearing, and 

we REMAND the appeal to the administrative judge for further adjudication of 

those defenses, including a hearing. 
2

BACKGROUND 

¶2 The appellant served as a supervisory employee with the agency in Tampa, 

Florida. Initial Appeal File (IAF), Tab 5 at 65-68. Prior to her removal, the 

appellant was in an absence without leave (AWOL) status. Id. at 65-88. The 

agency removed the appellant on an attendance-related charge of misconduct 

effective September 27, 2013. Id. at 65-68. The appellant filed an appeal of her 

removal and raised several EEO discrimination affirmative defenses, as well as a 

claim of whistleblower reprisal. IAF, Tab 1. After the appellant filed her initial 

appeal, the agency rescinded both the notice of proposed removal and the 

decision letter effecting her removal, and it removed all references to these 

actions from her personnel file. IAF, Tab 26 at 35-36. 

¶3 The administrative judge issued an order to show cause, along with several 

affirmative defense orders, directing the appellant to demonstrate why her 

removal appeal should not be dismissed as moot. Refiled Appeal File (RAF), 

Tabs 3, 16. After receiving and considering the parties’ submissions, the 

administrative judge found that the agency’s removal action had been completely 

rescinded, that the appellant had been returned to the status quo ante, and that the 

removal action was thus moot. RAF, Tab 23, Initial Decision (ID) at 2-4. The 

administrative judge further found that the appellant had failed to present a 

genuine issue of material fact for a hearing on any of her EEO discrimination 

affirmative defenses,1

 and he dismissed each of those claims without a hearing. 

ID at 6-19. Finally, the administrative judge found that, although the appellant 

was eligible to assert a whistleblower reprisal affirmative defense, she was not 

entitled to seek an award of damages under 5 U.S.C. § 1221 as an employee of the 

Postal Service, and he dismissed her whistleblower reprisal claim as moot. ID 

at 19. 

 

1

 The administrative judge determined that the appellant raised EEO affirmative 

defenses of sex and disability discrimination, as well as EEO reprisal. ID at 5. 
3

¶4 The appellant has filed a petition for review arguing that she has not been 

returned to the status quo ante and that the administrative judge erred in 

dismissing her affirmative defenses without a hearing. Petition for Review (PFR) 

File, Tab 1. The agency has filed a response in opposition to the petition for 

review. PFR File, Tab 5. 

ANALYSIS 

The administrative judge properly dismissed the appellant’s appeal of her 

removal and her whistleblower reprisal affirmative defense as moot. 

¶5 The Board may dismiss an appeal as moot if the appealable action is 

cancelled or rescinded by the agency. See Harris v. Department of the Air Force, 

96 M.S.P.R. 193, ¶ 5 (2004). For an appeal to be deemed moot, the agency’s 

rescission of the appealed action must be complete, and the employee must be 

returned to the status quo ante. Id. Status quo ante relief generally requires that 

the appellant be placed back in her former position or in one substantially 

equivalent in scope and status to her former position. Id., ¶ 6. Status quo ante 

relief also requires that the agency remove all references to the rescinded action 

and restore to the appellant any lost back pay or benefits. Baldwin v. Department 

of Veterans Affairs, 111 M.S.P.R. 586, ¶ 46 (2009); Harris, 96 M.S.P.R. 193, ¶ 6. 

¶6 We have reviewed the record below and agree with the administrative judge 

that the agency rescinded the appellant’s September 2013 removal and restored 

her to the status quo ante, thus rendering the agency’s removal action moot. ID 

at 3. The agency presented evidence that it rescinded both the proposal notice 

and the letter of decision effecting the appellant’s removal and that it processed a 

Postal Service Form 50 returning the appellant to a nonpay status with the agency 

prior to the effective date of her removal. IAF, Tab 26 at 35-36, 56. The 

agency’s actions have placed the appellant in the same position she was in prior 

to her removal, and they have rendered the appealable action moot for purposes of 

reviewing that action under chapter 75. See Harris, 96 M.S.P.R. 193, ¶¶ 5-6. 
4

¶7 We disagree with the appellant insofar as she argues that she has not been 

returned to the status quo ante because the agency placed her in a nonpay status 

upon rescinding her removal. PFR File, Tab 1 at 12. The appellant concedes that 

she was in an AWOL status during the period of time preceding her removal. Id. 

at 8-9. The Board has found that it generally is inappropriate to direct an agency 

to change an employee’s AWOL status or leave status prior to an appealable 

action because this status is not, in itself, appealable to the Board. See Maki v. 

U.S. Postal Service, 41 M.S.P.R. 449, 457 (1989). The Board does not have 

before it the circumstances of the appellant’s AWOL prior to the effective date of 

her removal.2

 To require the cancellation of the appellant’s preremoval AWOL 

status thus would violate the status quo ante principle because it would place the 

appellant in a more advantageous position than she was in prior to her removal. 

Id. We therefore find that the agency properly returned the appellant to the status 

quo ante by rescinding all references to her removal and placing her in a 

nonpay status. 

¶8 We also find that the administrative judge properly dismissed the 

appellant’s affirmative defense of whistleblower reprisal as moot. ID at 19. A 

claim of whistleblower reprisal generally is not rendered moot by an agency 

rescinding the challenged action because of the appellant’s entitlement to seek 

damages and attorney fees. See, e.g., Vick v. Department of Transportation, 

118 M.S.P.R. 68, ¶ 5 (2012); Perry v. Department of Veterans Affairs, 

81 M.S.P.R. 298, ¶ 10 (1999). Here, however, as an employee of the Postal 

Service, the appellant is not entitled to an award of attorney fees or damages for 

alleged whistleblower reprisal under 5 U.S.C. § 1221. See Mack v. U.S. Postal 

Service, 48 M.S.P.R. 617, 621 (1991) (finding that Postal Service employees 

 

2

 The appellant appears to have absented herself from employment, and this case 

does not present whether she was subjected to a period of enforced leave prior to her 

removal. See Maki, 41 M.S.P.R. at 457-58. 
5

are not entitled to seek “corrective action” under 5 U.S.C. § 1221). Thus, 

although the appellant can assert an affirmative defense of whistleblower reprisal 

in connection with an appealable action before the Board, here, where that action 

has been rescinded, there is no additional relief the Board could order in 

connection with her claim of whistleblower reprisal should she prevail on the 

merits of that claim. See id. We accordingly find that the administrative judge 

properly dismissed this affirmative defense as moot without a hearing. ID at 19. 

The appellant is entitled to a hearing on her EEO affirmative defenses. 

¶9 In his initial decision, the administrative judge also dismissed the 

appellant’s EEO affirmative defenses without a hearing, finding that she failed to 

present a genuine issue of material fact for hearing on any of her claims. ID 

at 6-19. In reaching this conclusion, the administrative judge relied upon Redd v. 

U.S. Postal Service, 101 M.S.P.R. 182, ¶¶ 5, 13 (2006), and found that an 

appellant does not have an unconditional right to a hearing on her discrimination 

claims where the underlying appealable action is no longer in effect. ID at 5-6. 

Although the administrative judge properly relied upon Redd at the time of his 

initial decision, the Board has since overruled Redd and its progeny in part, and 

has found that the Board’s procedures for deciding discrimination claims are a 

matter of civil service law rather than discrimination law. See Savage v. 

Department of the Army, 122 M.S.P.R. 612, ¶¶ 45-46 & n.10 (2015). In Savage, 

the Board explained that its appellate procedures do not provide a mechanism for 

granting summary judgment. Id., ¶ 46. Thus, if an appellant states a cognizable 

claim of statutorily prohibited discrimination in connection with an otherwise 

appealable action, then it must decide those discrimination claims only after the 

record is complete, in accordance with its appellate procedures as defined in 

title 5. See 5 U.S.C. §§ 7701(a), 7702(a)(1); Savage, 122 M.S.P.R. 612, 

¶¶ 45-46; Browder v. Department of the Navy, 81 M.S.P.R. 71, ¶¶ 7-8 (1999), 

aff’d, 250 F.3d 763 (Fed. Cir. 2000) (Table). 
6

¶10 Accordingly, pursuant to our decision in Savage, and because we find that 

the appellant has raised a cognizable claim of discrimination, we find that she has 

a right to a hearing on her affirmative defenses of discrimination based on sex 

and disability, and EEO reprisal. See Savage, 122 M.S.P.R. 612, ¶ 46. We vacate 

the initial decision insofar as it resolved the appellant’s EEO affirmative defenses 

without a hearing, and we remand those claims to the administrative judge for a 

hearing consistent with the standards set forth in Savage. Id., ¶¶ 46, 48-51. 

ORDER 

¶11 For the reasons discussed above, we remand this case to the regional office 

for further adjudication. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C.