                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JULIETTE L. NEAL,                               DOCKET NUMBER
                    Appellant,                       PH-1221-15-0378-W-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: August 17, 2016
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Juliette L. Neal, Laurel, Maryland, pro se.

           Anita Gwynn, Baltimore, Maryland, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her individual right of action (IRA) appeal for lack of jurisdiction.
     Generally, we grant petitions such as this one only when: the initial decision
     contains erroneous findings of material fact; the initial decision is based on an


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent with required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, we conclude that
     the petitioner has not established any basis under section 1201.115 for granting
     the petition for review.    Therefore, we DENY the petition for review and
     AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2        On September 20, 2013, the agency notified the appellant, a GS-12 Health
     Insurance Specialist, that she would be terminated during her probationary period
     due to conduct and performance issues effective the next day. Initial Appeal File
     (IAF), Tab 4 at 14-19. However, prior to the effective date of the termination, the
     appellant resigned, and the agency processed her separation as a resignation
     effective September 22, 2013.     Id. at 13; IAF, Tab 11 at 8.    On the day she
     received the notice of termination, the appellant initiated the equal employment
     opportunity (EEO) complaint process, alleging, among other things, that she was
     terminated due to sex-based discrimination and reprisal. IAF, Tab 5, Subtab VI
     at 30‑39. On December 13, 2013, the appellant was notified of her right to file a
     formal EEO complaint of discrimination, but did not do so. IAF, Tab 4 at 12;
     Tab 13 at 4.   On December 11, 2014, the appellant filed a complaint with the
     Office of Special Counsel (OSC) alleging that she was terminated in retaliation
                                                                                              3

     for her opposition to, and reporting of, sexual harassment by her supervisor. 2
     IAF, Tab 6. On March 30, 2015, OSC notified the appellant that it was closing its
     investigation into her complaint and that she had the right to file a request for
     corrective action with the Board. IAF, Tab 1 at 8‑9.
¶3           The appellant timely filed a request for corrective action with the Board. 3
     IAF, Tab 1.        In an order on jurisdiction, the administrative judge advised the
     appellant that disclosures of discrimination do not constitute protected
     whistleblower activity because they pertain to matters of discrimination covered
     by 5 U.S.C. § 2302(b)(1)(A) and explained that her claims of sexual harassment
     and     “hostile    environment”    sexual    harassment     constituted   allegations   of
     discrimination based on sex. IAF, Tab 17 at 2. The administrative judge further
     explained that, although the Whistleblower Protection Enhancement Act
     (WPEA) made allegations of reprisal for certain “protected activity” in 5 U.S.C.
     § 2302(b)(9) actionable in an IRA appeal, the WPEA did not appear to have
     any effect on the Board’s precedent holding that disclosures of Title VII
     violations—such         as   discrimination    based    on      sex—are    not   protected
     whistleblowing. Id. Thus, the administrative judge ordered the appellant to show
     cause why the appeal should not be dismissed for lack of jurisdiction. Id. at 3. In
     response, the appellant explained that she withdrew her request for a hearing in



     2
       In the appellant’s OSC complaint, she alleged that her supervisor sexually harassed
     her over the course of several months. IAF, Tab 6 at 1. The appellant stated that, due
     to the harassment, she twice suggested sexual harassment awareness training in
     response to a survey from the Deputy Director. Id. at 1, 8. She further stated that she
     believed her supervisor became aware of her survey responses because he subsequently
     told her that he did not “believe in sexual harassment.” Id. at 2, 8. The appellant also
     stated that she spoke to a coworker about her supervisor’s harassing behavior in
     confidence but later learned that her coworker had informed her supervisor of the
     conversation. Id. at 2. The appellant alleged that the agency failed to respond to her
     complaints of sexual harassment. Id. at 3, 9.
     3
         The appellant did not request a hearing. IAF, Tab 1 at 1.
                                                                                      4

     her EEO complaint after the agency attorney treated her in a “hostile,
     antagonistic” manner during a teleconference. IAF, Tab 18 at 1‑2.
¶4        In an initial decision based on the written record, the administrative judge
     found that the appellant failed to make a nonfrivolous allegation that she made
     any disclosures protected under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or
     (D), and dismissed the IRA appeal for lack of jurisdiction. IAF, Tab 19, Initial
     Decision (ID).    The appellant has filed a petition for review of the initial
     decision, the agency has responded in opposition, and the appellant has replied to
     the agency’s response. Petition for Review (PFR) File, Tabs 3, 5‑6.
¶5        The Board has jurisdiction over an IRA appeal if the appellant exhausts her
     administrative remedies before OSC and makes nonfrivolous allegations that:
     (1) she made a disclosure described under 5 U.S.C. § 2302(b)(8), or engaged in
     protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
     and (2) the disclosure or protected activity was a contributing factor in the
     agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
     § 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans
     Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
¶6        We agree with the administrative judge’s finding that the appellant has not
     presented a nonfrivolous allegation that she made any protected disclosure under
     section 2302(b)(8).    ID at 6-7.      Although the appellant exhausted her
     administrative remedy regarding her claims of having suggested sexual
     harassment awareness training in response to a survey from the Deputy Director
     and telling a coworker about her supervisor’s purported harassing behavior, it is
     well settled that disclosures concerning discrimination covered by Title VII are
     excluded from coverage under section 2302(b)(8).        Parikh v. Department of
     Veterans Affairs, 110 M.S.P.R. 295, ¶ 24 (2008); McDonnell v. Department of
     Agriculture, 108 M.S.P.R. 443, ¶ 22 (2008).       On review, the appellant has
                                                                                        5

     provided no basis to disturb the administrative judge’s finding, and we discern
     none. PFR File, Tabs 3, 5.
¶7         We likewise agree with the administrative judge’s finding that the appellant
     has not presented a nonfrivolous allegation that she disclosed retaliation based on
     a protected activity. ID at 7. As the administrative judge correctly explained, the
     WPEA expanded the scope of protected activity to include a claim that an agency
     retaliated for “the exercise of any appeal, complaint, or grievance right granted by
     any law, rule, or regulation . . . with regard to remedying a violation of
     [section 2302(b)](8).”   5 U.S.C. § 2302(b)(9)(i); ID at 7.     Here, however, the
     appellant does not allege that the agency retaliated against her for filing an EEO
     complaint, and the record reflects that she initiated an EEO complaint only after
     she was notified of her termination. IAF, Tab 5 at 30; IAF, Tab 1; PFR File,
     Tabs 3, 6. Accordingly, we discern no basis to disturb the administrative judge’s
     finding that the appellant failed to nonfrivolously allege that the agency retaliated
     against her for engaging in protected activity. ID at 7‑8.
¶8         In sum, we conclude that, because the appellant did not nonfrivolously
     allege that she made a protected disclosure under 5 U.S.C. § 2302(b)(8), or
     engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
     (C), or (D), the administrative judge correctly determined that the Board lacks
     jurisdiction over this IRA appeal. ID at 8.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the U.S.
     Court of Appeals for the Federal Circuit.
           The court must receive your request for review no later than 60 calendar
     days after the date of this order.     See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
     Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
     has held that normally it does not have the authority to waive this statutory
                                                                                  6

deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you want to request review of the Board’s decision concerning your
claims   of    prohibited   personnel   practices   under   5 U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).     You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the U.S. Court of Appeals for the Federal Circuit is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.            Additional
information about other courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
                                                                                 7

at   http://www.mspb.gov/probono      for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                              ______________________________
                                            Jennifer Everling
                                            Acting Clerk of the Board
Washington, D.C.
