“The agency’s refusal to adjust the performance evaluation to 7 remove adverse appraisals that had been based on allegations not sustained by the Board is inimical to a return to the status quo ante.”
How later courts described this case
- “The agency’s refusal to adjust the performance evaluation to 7 remove adverse appraisals that had been based on allegations not sustained by the Board is inimical to a return to the status quo ante.”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TOBY MATHEW, DOCKET NUMBER
Appellant, DA-0752-17-0275-I-2
v.
DEPARTMENT OF VETERANS DATE: April 29, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Peter Broida , Esquire, Arlington, Virginia, for the appellant.
Alfred E. Steinmetz , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as moot based on the administrative judge’s finding
that the agency had completely rescinded the removal. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
decision, and REMAND the case to the Dallas Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
The agency removed the appellant from his position as Director of its
Shreveport, Louisiana Veterans Affairs Medical Center (VAMC) based on
4 specifications of conduct unbecoming an agency senior leader, 13 specifications
of failure to provide effective oversight, and 1 specification of failure to follow
policy, effective April 13, 2017. Mathew v. Department of Veterans Affairs,
MSPB Docket No. DA-0752-17-0275-I-1, Initial Appeal File (IAF), Tab 7
at 28-40, 100-07. The appellant timely appealed his removal to the Board and
requested a hearing. IAF, Tab 1. During the proceedings below, the agency
informed the administrative judge that it had rescinded the removal action and
requested a period of time to provide the appellant with status quo ante relief, to
which the appellant did not object. Mathew v. Department of Veterans Affairs,
MSPB Docket No. DA-0752-17-0275-I-2, Appeal File (AF), Tab 4 at 1-2.
Accordingly, the administrative judge granted the agency a period of
approximately 1 month to restore the appellant to the status quo ante. Id. at 2.
Shortly after the 1-month period ended, the appellant moved for a
protective order to protect him against the agency’s alleged harassment and for an
order to reinstate him to a permanent position within the agency. AF, Tabs 7-8.
Specifically, the appellant alleged that the agency harassed him when an agency
official told a reporter that the agency “had to take back” the appellant “as a
result of a flawed and outdated civil service personnel system that makes it
difficult to remove employees for legitimate reasons.” AF, Tab 7 at 4-6. The
administrative judge docketed a separate protective order proceeding and denied
the appellant’s motion, finding that the appellant failed to show that the
statements rose to the level of harassment or were the proximate cause of
negative, and sometimes threatening, online comments in response to the
3
published article. Mathew v. Department of Veterans Affairs, MSPB Docket
No. DA-0752-17-0275-D-1, Protective Order File, Tab 15 at 4-6.
The administrative judge then afforded the parties an opportunity to show
cause as to why the removal appeal should not be dismissed as moot. AF, Tab 16
at 3-4. The appellant responded, arguing that the appeal should not be dismissed
as moot because (1) the agency subjected him to a hostile work environment
when the agency official made disparaging comments to a reporter; (2) the agency
failed to remove a July 25, 2016 letter of reprimand from the appellant’s Official
Personnel File which the agency had relied on in the removal action; (3) the
appellant was detailed to another position instead of performing his position of
record; and (4) his 2017 performance appraisal contained references to his
removal and his appeal. 2 AF, Tab 17; Tab 21 at 3, 10. The agency responded,
arguing that the appeal should be dismissed as moot. AF, Tab 18.
The administrative judge issued an initial decision, finding the appeal to be
moot and dismissing it for lack of jurisdiction. AF, Tab 25, Initial Decision (ID).
First, the administrative judge found that the appellant had not made a
nonfrivolous allegation that the agency subjected him to a hostile work
environment. ID at 4-6. Next, he found that the agency was not required to
remove the July 2016 letter of reprimand from the appellant’s official personnel
file, and this was not relief the Board could have ordered had the appellant
prevailed in his appeal. ID at 6-7. Then, the administrative judge found that the
appellant’s detail upon reinstatement was appropriate, finding that the agency had
a strong overriding interest not to reinstate the appellant to his former position,
and noting that the appellant had agreed to the detail, and the agency has
the authority to liberally reassign members of the Senior Executive Service.
ID at 7-9. Finally, the administrative judge determined that the appellant’s
2
Originally, the appellant argued that the appeal was not moot because he had yet to
receive a 2017 performance appraisal. AF, Tab 17 at 12. However, subsequent to the
closing of the record, the appellant received his 2017 performance appraisal. AF,
Tab 21.
4
2017 performance appraisal did not evaluate him based on the charges
and allegations in the removal action. ID at 10-12. Accordingly, the
administrative judge found that the appellant had received full status quo ante
relief. ID at 12-13.
The appellant has timely filed a petition for review in which he argues that
his appeal is not moot based largely on the reasons he asserted below and requests
that the Board remand his appeal for the administrative judge to rule on his
request for a protective order. Petition for Review (PFR) File, Tab 1. The
agency has filed an opposition to the appellant’s petition, and the appellant has
filed a reply to the agency’s opposition. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is determined by the nature of an agency’s action
at the time an appeal is filed with the Board. Hagan v. Department of the Army,
99 M.S.P.R. 313, ¶ 6 (2005). An agency’s unilateral modification of its adverse
action after an appeal has been filed cannot divest the Board of jurisdiction unless
the appellant consents to such divesture or unless the agency completely rescinds
the action being appealed. Id.; Harris v. Department of the Air Force,
96 M.S.P.R. 193, ¶ 5 (2004). Thus, the Board may dismiss an appeal as moot if
the appealable action is canceled or rescinded by the agency. Harris,
96 M.S.P.R. 193, ¶ 5. However, an appeal may not be dismissed as moot until the
agency provides acceptable evidence showing that it has actually afforded the
appellant all of the relief that he could have received if the matter had been
adjudicated and he had prevailed. Haskins v. Department of the Navy,
106 M.S.P.R. 616, ¶ 22 (2007). 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. See id., ¶ 15; see Tyrrell
v. Department of Veterans Affairs, 60 M.S.P.R. 276, 279 (1994).
5
The agency did not return the appellant to the status quo ante because his 2017
performance appraisal contains references to the underlying basis of the
removal action.
On review, the appellant renews his argument that the appeal is not moot
because the agency failed to provide him with a 2017 performance rating that is
permanent and the narrative in his performance review references the events
underlying his rescinded removal. PFR File, Tab 1 at 14-18. In its response to
the petition for review, the agency provides an updated performance rating,
contends that the appellant delayed the agency’s efforts to make the rating
permanent, and argues that the performance appraisal does not refer to the
allegations and charges contained in the rescinded removal. PFR File, Tab 3
at 9-10, 14-22.
An employee who has been given improperly lowered performance element
ratings upon his restoration has not been restored to the status quo ante.
Normoyle v. Department of the Air Force, 63 M.S.P.R. 391, 394 (1994). In order
to restore an employee to the status quo ante, the agency must give the employee
the same ratings on restoration that he would have received in the absence of the
removal. Id. at 395-96. While the duty to restore an employee to the status quo
ante does not protect an employee from the consequences of performance
deficiencies that occur after the employee’s restoration, or from the consequences
of any prior deficiencies that were unrelated to the removal, the employee may
not be evaluated based on the charges and allegations set forth in the rescinded
action. See id. at 396; see also Manley v. Department of the Air Force ,
75 M.S.P.R. 103, 106 (1997) (interpreting Normoyle to require that the agency
remove from the appellant’s appraisal all references to the unsustained action,
charges, and allegations).
Here, the appellant challenges the language in the narrative of his 2017
performance appraisal, specifically:
During the period of performance for Mr. Mathew, the Shreveport
VAMC met its critical elements successfully; however, under
6
Mr. Mathew’s leadership serious allegations regarding his leadership
were raised, investigated, and substantiated. Additionally, there
were external reviews from the [Office of Inspector General],
[Emergency Operations Center] and [Federal Drug Administration]
where significant deficiencies were found that were a result of a
failure of leadership. Mr. Mathew was detailed from his position
effective February 1, 2017, as a change in direction was needed in
Shreveport for the facility to move forward and to improve the
culture of psychological safety within the medical center.
Mr. Mathew’s rating reflects the overall rating of the Shreveport
facility which was a level 4 or excellent.
PFR File, Tab 1 at 14-17, Tab 3 at 20. We agree with the appellant that this
narrative rating is not only incongruous with his overall rating of “excellent,” but
also impermissibly references the allegations underlying the removal action.
PFR File, Tab 1 at 14-18. First, the comments that there were “serious
allegations” regarding the appellant’s leadership, that were substantiated by
external entities which found “significant deficiencies” as a result of “a failure of
leadership,” clearly references the events underlying the agency’s charge of
failure to provide effective oversight in the removal action. Compare PFR File,
Tab 3 at 20, with IAF, Tab 7 at 101-05. Similarly, the comments regarding the
basis for the appellant’s detail, i.e., to allow “the facility to move forward and
improve the culture of psychological safety,” clearly references the events
underlying the charge of conduct unbecoming a VA senior leader. Compare
PFR File, Tab 3 at 20, with IAF, Tab 7 at 100-101.
As explained earlier, in order to restore an appellant to the status quo ante,
an agency must remove from the appellant’s appraisals all references to an
unsustained action, charges, or allegations. Manley, 75 M.S.P.R. at 106. Because
the appellant’s appraisal still contains references to the underlying allegations of
the cancelled removal action, the agency has not restored the appellant to the
status quo ante. See Manley v. Department of the Air Force, 91 F.3d 117, 119
(Fed. Cir. 1996) (“The agency’s refusal to adjust the performance evaluation to
7
remove adverse appraisals that had been based on allegations not sustained by the
Board is inimical to a return to the status quo ante.”).
There is no basis to disturb the remaining findings in the initial decision.
We do not find the appellant’s other arguments on review to be persuasive.
First, the appellant renews his argument that the agency official’s statements to
a reporter constituted a hostile work environment, which supported his motion for
a protective order and precluded dismissal of the appeal as moot. PFR File,
Tab 1 at 20-30. We agree with the administrative judge that the appellant failed
to establish that the statements rose to the level of hostile work environment.
ID at 5-6. Furthermore, the Board may grant a protective order if it is necessary
to protect a witness or individual from “harassment.” See 5 C.F.R. § 1201.55(d);
see also 5 U.S.C. § 1204(e)(1)(B). Because the appellant failed to show that
he suffered harassment because of his Board appeal, we also agree with the
administrative judge’s denial of the appellant’s request for a protective order.
Protective Order File, Tab 15; see In re Uriarte, 93 M.S.P.R. 183, ¶ 8 (2002)
(holding that, in order to show that he is entitled to a protective order, the movant
must show that he has suffered harassment because of his involvement or
potential involvement in the Board appeal). 3
The appellant also reiterates that the cancellation of the removal action
warranted the rescission of the July 2016 letter of reprimand because the agency
relied on it in its penalty analysis when effecting the removal. PFR File, Tab 1
at 18-20; see IAF, Tab 7 at 33-37. The Board has held that, in rescinding an
adverse action, nothing requires an agency to expunge records of prior
disciplinary actions upon which the agency relied in effecting the action appealed
because those actions are not properly before the Board. Rojas v. U.S. Postal
Service, 70 M.S.P.R. 400, 404 (1996), overruled on other grounds by Fernandez
3
We certainly do not condone the agency’s statements about the appellant, and it may
be that, under different circumstances, an appellant may well be able to show that
similar public remarks contribute to a finding of harassment.
8
v. Department of Justice, 105 M.S.P.R. 443, ¶ 5 n.1 (2007). Accordingly, the
administrative judge properly concluded that the agency was not required to
rescind the past discipline relied upon in effecting the rescinded adverse action.
ID at 6-7.
Finally, the appellant renews his argument that the agency failed to
reassign him to a substantially equivalent position, challenging, specifically, the
agency’s decision to detail him to a set of unclassified duties with no fixed
support staff or supervisory chain of command commensurate with that of his
former position. PFR File, Tab 1 at 7-14. In response, the agency asserted that
this issue was moot because the detail has ended, PFR File, Tab 3 at 8, and the
appellant conceded that point, and did not dispute that he is now performing the
duties of the permanent position to which he was reinstated, PFR File, Tab 4 at 4.
Accordingly, there appears to be no remedy the Board can award the appellant
regarding this issue, and we conclude that the matter of the reinstatement of the
appellant to a permanent position is moot. See Dalton v. Department of Justice,
66 M.S.P.R. 429, 434 (1995) (finding that, when the appellant’s placement in a
home duty status had ended, and there was no loss of pay or benefits to the
appellant, the matter of the agency’s compliance with the administrative judge’s
order in the removal decision was moot because there was no remedy the Board
could award the appellant).
In conclusion, as discussed above, the agency did not return the appellant
to the status quo ante because his 2017 performance appraisal still contained
references to the underlying basis of the removal action. Therefore, this appeal is
not moot, and we remand it for adjudication on the merits. See Fernandez v.
Department of Justice, 105 M.S.P.R. 443, ¶ 5 (2007) (finding that, if an appeal is
not truly moot, even though the action underlying the appeal was cancelled, the
proper remedy is for the Board to retain jurisdiction and to adjudicate the appeal
on the merits).
9
ORDER
For the reasons discussed above, we remand this case to the Dallas
Regional Office for further adjudication in accordance with this Remand Order. 4
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.