UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

FRANK J. MAINO,

Appellant,

v.

DEPARTMENT OF THE TREASURY,

Agency.

DOCKET NUMBER

NY-0752-14-0302-I-1

DATE: July 7, 2015

THIS ORDER IS NONPRECEDENTIAL*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 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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claimed that it had rescinded the suspension and needed some time to complete 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
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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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board