UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANTHONY D. NATTY,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

SF-0752-14-0165-I-1

DATE: February 5, 2015

THIS ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 

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 Parties may cite nonprecedential orders, 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 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his removal, the agency rescinded the adverse action and moved to dismiss the 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 

initial 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 receiving 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board