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, Beachw ood, Ohio, for the appellant. Jason L. Hardy, Esquire , and Margaret L. Bask ette, 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 re view of the initial decision, which dismissed her removal appeal as moot without holding th e requested hearing. For the reasons that follow, we GRANT the appellant’s petition for review. We AFFIRM the initial decision in sofar as it found that the appellant’s appeal of her removal and her whistleblo wer 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 fo r further adjudication of those defenses, incl uding a hearing.2

BACKGROUND ¶2 The appellant served as a supervisory employee with the agency in Tampa, Florida. Initial Appeal Fi le (IAF), Tab 5 at 65-68. Prior to her removal, the appellant was in an absence w ithout leave (AWOL) status. Id. at 65-88. The agency removed the appell ant on an attendance-rela ted charge of misconduct effective September 27, 2013. Id . at 65-68. The appellan t filed an appeal of her removal and raised several EEO discrimina tion affirmative defenses, as well as a claim of whistleblower repris al. IAF, Tab 1. After th e appellant filed her initial appeal, the agency rescinded both the notice of proposed removal and the decision letter effecting her removal, and it removed all re ferences to these actions from her personnel file. IAF, Tab 26 at 35-36. ¶3 The administrative judge issued an or der to show cause, along with several affirmative defense orders , directing the appellant to demonstrate why her removal appeal should not be dismissed as moot. Re filed Appeal File (RAF), Tabs 3, 16. After rece iving 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the parties’ submissions, the administrative judge found that the agency ’s removal action had been completely rescinded, that the appellant had been returned to the st atus quo ante, and that the removal action was thus moot . RAF, Tab 23, Initial Decision (ID) at 2-4. The administrative judge furthe r found that the appellant had failed to present a genuine issue of material fact for a hearing on any of he r EEO discrimination affirmative defenses, 1 and he dismissed each of thos e claims without a hearing. ID at 6-19. Finally, th e administrative judge found that, although the appellant was eligible to assert a wh istleblower reprisal affirm ative 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 dism issed her whistleblower repr isal 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 th at the administrative judge erred in dismissing her affirmative de fenses without a hearing. Petition for Review (PFR) File, Tab 1. The agency has filed a response in opposition to the petition for review. PFR Fi le, Tab 5.

ANALYSIS The administrative judge properly dismis sed the appellant’s appeal of her removal and her whistleblo wer reprisal affirmativ e defense as moot. ¶5 The Board may dismiss an appeal as moot if the appealable action is cancelled or resci nded 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 fo rmer position or in one substantially equivalent in scope and status to her former position. Id ., ¶ 6. Status quo ante relief also requires that th e agency remove all referenc es 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 a nd agree with the ad ministrative judge that the agency rescinded the appellan t’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 bot h the proposal notice and the letter of decision effecting the a ppellant’s removal and that it processed a Postal Service Form 50 returning the appe llant to a nonpay status with the agency prior to the effective date of her rem oval. 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 th e appealable action moot for purposes of reviewing that acti on under chapter 75. See Harris , 96 M.S.P.R. 193 , ¶¶ 5-6.4

¶7 We disagree with the appe llant insofar as she argue s that she ha s not been returned to the status quo ante because the agency placed he r in a nonpay status upon rescinding her removal. PFR File, Tab 1 at 12. Th e appellant c oncedes that she was in an AWOL status during the pe riod of time preced ing her removal. Id

. at 8-9. The Board has found that it genera lly 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 circumst ances of the appellan t’s AWOL prior to th e effective date of her removal. 2 To require the cancellation of the appellant’s preremoval AWOL status thus would violate th e status quo ante principle because it would place the appellant in a more advantag eous position than she was in prior to her removal. Id . We therefore find that the agency prope rly returned the appe llant 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 defens e of whistleblower reprisal as moot. ID at 19. A claim of whistleblower repr isal generally is not re ndered moot by an agency rescinding the challenged action because of the appellant’s en titlement to seek damages and attorney fees. See, e.g. , Vick v. Departmen t 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 at torney fees or damages for alleged whistleblo wer 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 employm ent, 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 asse rt an affirmative defense of whistleblower reprisal in connection with an appealable action be fore the Board, here, where that action has been rescinded, there is no addi tional relief the Boar d could order in connection with her claim of whistleblo wer reprisal should she prevail on the merits of that claim. See id . We accordingly find th at the administrative judge properly dismissed this affirmat ive defense as moot without a hearing. ID at 19. The appellant is entitled to a heari ng on her EEO affirma tive defenses. ¶9 In his initial decision, the admini strative judge also dismissed the appellant’s EEO affirmative de fenses without a hearing, finding that she failed to present a genuine issue of ma terial 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 ri ght to a hearing on her discrimination claims where the underlying app ealable action is no longer in effect. ID at 5-6. Although the administrative j udge 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 di scrimination claims are a matter of civil serv ice 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 it s appellate procedures do not provide a mechanism for granting summary judgment. Id. , ¶ 46. Thus, if an appe llant states a cognizable claim of statutorily prohibi ted discrimination in conn ection with an otherwise appealable action, then it must decide those discrimi nation claims only after the record is complete, in acco rdance with its appellate pr ocedures 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 c ognizable claim of discrimina tion, we find that she has a right to a hearing on her affirmative defenses of discrimination based on sex and disability, a nd 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 standa rds set forth in Savage

. Id ., ¶¶ 46, 48-51.

ORDER ¶11 For the reasons discussed above, we rema nd this case to the regional office for further adjudication.

FOR THE BOARD:

________________ ______________ William D. Spencer Clerk of the Board Washington, D.C.