                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     NICOLE ALISE THOMPSON,                          DOCKET NUMBER
                   Appellant,                        DC-1221-14-0827-W-1

                  v.

     DEPARTMENT OF STATE,                            DATE: May 6, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Nicole Alise Thompson, Washington, D.C., pro se.

           Anne Joyce, Esquire, Jennifer E. Marcovitz, Esquire, and Niels
             von Deuten, Esquire, Washington, D.C., 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 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 erroneous interpretation of statute or


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.          Title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).          For the reasons
     discussed below, we DENY the appellant’s petition for review, AFFIRM the
     initial decision AS MODIFIED, and FORWARD the appellant’s removal appeal
     for docketing in accordance with this order.
                                       BACKGROUND

¶2         Effective May 23, 2014, the appellant was removed from her position as a
     Motor Vehicle Operator with the agency’s Fleet Management and Operations
     Division for inability to perform the duties of her position as a result of an
     on-the-job injury. Initial Appeal File (IAF), Tab 1 at 53. On June 20, 2014, she
     filed a Board appeal. IAF, Tab 1. On her appeal form, she did not check any box
     to indicate which personnel action she was challenging, but asserted that she was
     appealing an agency action, effective May 23, 2014, and alleged that “the agency
     actions are provoked by the activity I have participated in for whistleblowing.”
     Id. at 3, 5.     The appellant attached to her appeal several letters concerning
     numerous complaints she had filed with the Office of Special Counsel (OSC). Id.
     at 10-18.      A May 6, 2014 close-out letter from OSC in case MA-13-2322
     indicates that she had raised a claim of agency retaliation for whistleblower
     activity and for filing an equal employment opportunity (EEO) complaint. She
     alleged that the agency retaliated against her by mishandling her EEO complaint
     and her Office of Workers’ Compensation (OWCP) request. 2 Id. at 11. Finally,


     2
       According to OSC’s letter, the appellant also claimed that the agency denied her leave
     requests and light duty in reprisal for her EEO complaint. IAF, Tab 1 at 11.
                                                                                     3

     she attached a copy of the agency’s proposal notice and Standard Form 50
     regarding her removal. Id. at 23-26, 53.
¶3         The administrative judge construed the appellant’s appeal as an individual
     right of action (IRA) appeal and issued an order providing the appellant with
     notice of how to establish Board jurisdiction over an IRA appeal. IAF, Tab 3. In
     response, the appellant filed numerous pleadings. IAF, Tabs 7-11. With one of
     her responses, the appellant filed another appeal form indicating that she was
     appealing, among other things, her removal. IAF, Tab 8 at 8. According to the
     administrative judge, during a status conference, the appellant asserted that her
     IRA appeal concerned the matters raised in OSC case number MA-13-2322, IAF,
     Tab 18 at 2, and she also apparently indicated that she was appealing her removal,
     id. at 2 n.1.
¶4         In an order and summary of the status conference, the administrative judge
     informed the appellant that her submissions to date were insufficient to make a
     finding of jurisdiction over her IRA appeal and explained what information was
     needed.    Id. at 3.   The administrative judge also informed the appellant that,
     because her May 23, 2014 removal had occurred after OSC closed its case, she
     could not have exhausted her administrative remedies before OSC as to her
     removal and therefore the Board was “without jurisdiction to consider her
     removal.” Id. at 2 n.1. Following the status conference, the appellant filed a
     motion to include her removal as an “[a]dverse action due to [her] protected
     activity and disclosures.” IAF, Tab 21 at 4.
¶5         The agency filed a motion to dismiss the appellant’s IRA appeal for lack of
     jurisdiction, asserting that the appellant failed to make nonfrivolous allegations
     that she made a protected disclosure that was a contributing factor in a personnel
     action, and failed to show that she exhausted her administrative remedies before
     OSC. IAF, Tabs 13, 26. The agency also contended that the appellant’s attempt
     to raise a chapter 75 appeal concerning her removal in her September 19, 2014
     motion was untimely. IAF, Tab 26 at 15-16.
                                                                                            4

¶6         Without holding the appellant’s requested hearing, the administrative judge
     issued an initial decision dismissing the appeal for lack of jurisdiction.          IAF,
     Tab 27, Initial Decision (ID). The administrative judge found that the appellant
     failed to establish that she exhausted her administrative remedies with OSC
     because, other than OSC’s preliminary determination and close-out letters, the
     appellant did not provide evidence regarding what claims she presented to OSC in
     her complaint under case number MA-13-2322. ID at 3-5. The administrative
     judge also noted that, although the appellant sought to appeal her removal, such a
     claim could not be included in this appeal because she previously had not raised it
     before OSC. ID at 2 n.1. Consequently, she instructed the appellant that she
     could file a new removal appeal with the Board under 5 U.S.C. §§ 7511-7513 or a
     new IRA appeal pursuant to 5 U.S.C. § 1221 after she exhausted her removal with
     OSC. Id.
¶7         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 3. 3 The agency has opposed the appellant’s petition. 4 PFR File, Tab 8.
     The appellant has filed a reply. PFR File, Tab 9. 5




     3
       The appellant also had filed two supplements to her petition, which we have
     considered but find immaterial to the issue of the Board’s jurisdiction. PFR File,
     Tabs 5-6. To the extent the appellant is seeking to amend her appeal to name as parties
     the administrative judge, the agency representative, and certain other individuals, PFR
     File, Tab 3 at 4, we find that she has not established a valid basis for recaptioning the
     appeal, and we deny her motion to amend.
     4
       The agency’s response was due on December 13, 2014. PFR File, Tab 7. However,
     because December 13, 2104, was a Saturday, the deadline is extended until the
     following workday. 5 C.F.R. § 1201.23. Accordingly, the agency’s December 15, 2014
     response was timely filed.
     5
      To the extent that the appellant has moved to strike the agency’s response because a
     paralegal executed the certificate of service filed by the agency representative,
     PFR File, Tab 9, we find no basis for excluding the agency’s response, and we deny her
     motion to strike.
                                                                                        5

                      DISCUSSION OF ARGUMENTS ON REVIEW
      The administrative judge properly found that the Board lacks jurisdiction over the
      appellant’s IRA appeal.
¶8         Under 5 U.S.C. § 1214(a)(3), an employee is required to exhaust her
      administrative remedies with OSC before seeking corrective action from the
      Board in an IRA appeal.         Mason v. Department of Homeland Security,
      116 M.S.P.R. 135, ¶ 8 (2011).       An appellant filing an IRA appeal has not
      exhausted her OSC remedy unless she has filed a complaint with OSC and either
      OSC has notified her that it was terminating its investigation of her allegations or
      120 calendar days have passed since she first sought corrective action. Simnitt v.
      Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 8 (2010). To satisfy the
      exhaustion requirement, the appellant must inform OSC of the precise grounds of
      her charge of whistleblowing, giving OSC a sufficient basis to pursue an
      investigation that might lead to corrective action. Mason, 116 M.S.P.R. 135, ¶ 8.
¶9         To establish Board jurisdiction, the appellant must prove exhaustion with
      OSC, not merely present nonfrivolous allegations of exhaustion. Id., ¶ 9. The
      Board may consider only those disclosures of information and personnel actions
      that the appellant raised before OSC. Id., ¶ 8. If an appellant has exhausted her
      administrative remedies before OSC, she can establish Board jurisdiction over an
      IRA appeal based on whistleblower reprisal by nonfrivolously alleging that she
      made a protected disclosure and that the disclosure was a contributing factor in
      the agency’s decision to take a personnel action.      Peterson v. Department of
      Veterans Affairs, 116 M.S.P.R. 113, ¶ 8 (2011). Once an appellant establishes
      jurisdiction over her IRA appeal, she is entitled to a hearing on the merits of her
      claim. Id.
¶10        The administrative judge found that the appellant’s OSC complaint in case
      number MA-13-2322 was the subject of the instant appeal. ID at 2. Because the
      appellant failed to file an actual copy of her OSC complaint and did not otherwise
      explain in her pleadings below what are the nature of the claims she raised before
                                                                                        6

      OSC    in     case   number   MA-13-2322,   OSC’s    April 16,   2014   preliminary
      determination letter and May 6, 2014 close-out letter were the only evidence in
      the record by which she could establish OSC exhaustion. ID at 3-4; IAF, Tab 1
      at 11-12, 14; see Kinsey v. Department of the Navy, 107 M.S.P.R. 426, ¶ 12
      (2007) (stating that an appellant may show exhaustion of her OSC remedy
      through means other than her OSC complaint).
¶11         We agree with the administrative judge that, although OSC’s letters indicate
      that the appellant raised a claim of reprisal for whistleblowing under 5 U.S.C.
      § 2302(b)(8), they do not identify which protected disclosure(s) the appellant
      raised. ID at 3-4; IAF, Tab 1 at 11-12, 14. The record does not reflect that the
      appellant ever told OSC the date of her alleged protected disclosure, the identity
      of the person(s) to whom she allegedly made a disclosure, or any specifics
      regarding the content of the disclosure. ID at 4. Although the appellant may
      have given OSC more information concerning what she disclosed, to whom, and
      when, her failure to respond to the administrative judge’s jurisdictional order to
      indicate what she told OSC signifies that she failed to carry her burden to
      establish exhaustion of her administrative remedies before OSC.         See Mason,
      116 M.S.P.R. 135, ¶¶ 8-9.
¶12         The record reflects that the administrative judge issued two separate orders
      on jurisdiction and held a status conference to explain the necessary jurisdictional
      elements of an IRA appeal.        IAF, Tabs 3, 18.     The administrative judge’s
      August 7, 2014 order specifically informed the appellant that the information she
      had provided to date did not clearly articulate what in particular she raised before
      OSC and that OSC’s letter lacked specificity regarding what disclosures or
      protected activities she raised. IAF, Tab 18 at 3. The order also provided the
      appellant with a template for providing the information required for the
      administrative judge to make a jurisdictional determination.            Id. at 3-4.
      Notwithstanding such notice, the appellant failed to clarify the nature of
      her claims.
                                                                                        7

¶13          The appellant also fails to address the issue of OSC exhaustion on review,
      providing nothing with her petition for review to indicate what information she
      provided to OSC regarding her alleged protected disclosures.       Thus, we agree
      with the administrative judge that the appellant has not proven that she exhausted
      her administrative remedies with OSC regarding her claims of whistleblower
      reprisal under 5 U.S.C. § 2302(b)(8). ID at 4-5; see Mason, 116 M.S.P.R. 135,
      ¶ 8.
¶14          OSC’s May 6, 2014 close-out letter, however, does indicate that the
      appellant raised a claim with OSC concerning agency retaliation for filing an
      EEO complaint in violation of 5 U.S.C. § 2302(b)(9) by mishandling her EEO
      complaint and OWCP request, denying her leave requests, and denying her light
      duty. IAF, Tab 1 at 11. OSC’s letter further suggests that such allegations were
      sufficiently specific to allow OSC to pursue an investigation that might have led
      to corrective action. Therefore, we modify the initial decision to find that the
      appellant exhausted her administrative remedies with OSC regarding such claims.
¶15          Nonetheless, we find that the appellant’s claim of reprisal for filing an EEO
      complaint cannot form the basis of an IRA appeal. Reprisal for filing an EEO
      complaint is a prohibited personnel practice under 5 U.S.C. § 2302(b)(1) and
      (b)(9), not 5 U.S.C. § 2302(b)(8). See Mahaffey v. Department of Agriculture,
      105 M.S.P.R. 347, ¶ 20 n.8 (2007) (clarifying that a claim of retaliation for filing
      an EEO complaint may be pursued under either 5 U.S.C. § 2302(b)(1) or (b)(9)).
      The Whistleblower Protection Enhancement Act of 2012 (WPEA) extended the
      Board’s jurisdiction over IRA appeals to claims of reprisal for filing complaints
      seeking to remedy whistleblower reprisal under 5 U.S.C. § 2302(b)(8), but not to
      other types of complaints.        5 U.S.C. §§ 1221(a), 2302(b)(9)(A); Mudd v.
      Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013).
¶16          Here, we find that the appellant has not nonfrivolously alleged that her EEO
      complaint involved remedying a violation of 5 U.S.C. § 2302(b)(8).              The
      appellant submitted below a copy of an EEO investigative report concerning a
                                                                                             8

      November 17, 2012 EEO complaint (DOS-F-024-13), which reflects claims that
      the agency discriminated against her and subjected her to a hostile work
      environment by denying her a reasonable accommodation, inappropriately
      soliciting and retaining her medical information, engaging in name-calling,
      denying her 6 hours of pay, and denying her requests for advanced sick leave. 6
      IAF, Tab 1 at 9. The appellant stated below that this EEO complaint concerned
      the agency’s failing to accommodate her, reducing her work hours to 3 per day,
      and retaliating against her for filing her EEO complaint. 7 IAF, Tab 7 at 5.
¶17         Additionally, it does not appear that OSC construed the appellant’s EEO
      complaint as one seeking to remedy whistleblower reprisal because, in closing its
      case, OSC informed the appellant that her claims would be “more appropriately
      resolved through the EEO process.” IAF, Tab 1 at 14. Because the appellant
      has not nonfrivolously alleged that her EEO complaint sought to remedy
      whistleblower reprisal, we find that the Board lacks jurisdiction to consider such
      an allegation in the context of an IRA appeal. 8 See, e.g., Mudd, 120 M.S.P.R.
      365, ¶¶ 6-7.


      6
        After filing her complaint with OSC on March 26, 2013, IAF, Tab 1 at 13, but before
      OSC closed its investigation on May 6, 2014, id. at 12, the appellant filed another EEO
      complaint on February 10, 2014, IAF, Tab 14 at 15. The documentation in the record
      regarding the substance of this complaint does not indicate that the appellant sought
      therein to remedy whistleblower reprisal. Id. at 59-60, 68-72.
      7
        We acknowledge that the agency submitted additional documentation concerning this
      same EEO complaint in which the appellant references whistleblower retaliation for
      filing complaints with the agency’s Office of the Inspector General and OSC. IAF,
      Tab 14 at 32-51.     However, we find the appellant’s conclusory references are
      insufficient to meet her burden because she has not explained and we are unable to
      discern the nature of such claims, or how or whether they concern remedying a
      violation of 5 U.S.C. § 2302(b)(8). See McDonnell v. Department of Agriculture,
      108 M.S.P.R. 443, ¶ 7 (2008) (stating that conclusory, vague, or unsupported
      allegations are insufficient to qualify as nonfrivolous allegations of jurisdiction in an
      IRA appeal). Moreover, such claims do not appear to have been investigated as part of
      the appellant’s EEO complaint. IAF, Tab 1 at 9.
      8
       To the extent the appellant asserted below that she was retaliated against for assisting
      coworkers with their EEO complaints, IAF, Tab 7 at 8, we find that such a claim
                                                                                          9

      We forward the appellant’s removal appeal for docketing under 5 U.S.C.
      chapter 75.
¶18         An employee who claims to have suffered whistleblower reprisal regarding
      an adverse action appealable to the Board may elect to pursue a remedy through
      one, and only one, of the following remedial processes:        (1) an appeal to the
      Board under 5 U.S.C. § 7701; (2) a grievance filed pursuant to the provisions of
      the negotiated grievance procedure; or (3) a complaint following the procedures
      for seeking corrective action from OSC under 5 U.S.C. §§ 1211-1222.                See
      5 U.S.C. § 7121(g); Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 17
      (2015); Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 12 (2013).
      Whichever remedy is sought first by an aggrieved employee is deemed to be an
      election of that procedure and precludes pursuing the matter in either of the other
      two forums.     Edwards, 120 M.S.P.R. 307, ¶ 12.      However, an election under
      5 U.S.C. § 7121(g) is binding only if it was knowing and informed. Edwards,
      120 M.S.P.R. 307, ¶ 12.       If an individual elects to challenge an otherwise
      appealable action by filing a request for corrective action with OSC, the
      individual must exhaust her administrative remedies with OSC before filing an
      IRA appeal with the Board. Id., ¶ 15.
¶19         Here, the record reflects that the appellant was both attempting to appeal
      her   removal    and   asserting   that   her   removal   constituted   reprisal   for
      whistleblowing. IAF, Tab 1 at 3, 5, 23-26, 53, Tab 8 at 8, Tab 18 at 2 n.1, Tab 21
      at 4. The agency’s separation notice informed the appellant of her procedural
      options under section 7121(g) and the preclusive effect of filing a Board appeal.
      IAF, Tab 14 at 117-18. Based on the record, it does not appear that the appellant
      filed a complaint with OSC concerning her removal prior to filing the instant
      Board appeal.     As the administrative judge correctly noted, the appellant


      was not exhausted before OSC, IAF, Tab 1 at 14 (characterizing her OSC complaint as
      alleging reprisal for “filing an EEO complaint” as opposed to assisting an individual
      with his or her EEO complaint).
                                                                                           10

      could not have raised such a claim before OSC in case number MA-13-2322
      because OSC issued its May 6, 2014 close-out letter prior to the appellant’s
      May 23, 2014 removal. ID at 2 n.1. Therefore, the appellant appears to have
      elected to pursue a direct appeal to the Board concerning her removal. 9
¶20         In contrast to an IRA appeal, if an appellant raises whistleblowing as an
      affirmative defense in an adverse action appeal, she is not required to demonstrate
      exhaustion of administrative remedies before OSC.          See Savage, 122 M.S.P.R.
      612, ¶ 52 (noting the absence of this requirement in a removal appeal).
      Accordingly, we forward the appellant’s removal appeal for adjudication under
      5 U.S.C. chapter 75, including any affirmative defenses the appellant has raised
      in response to her removal under the applicable standards. 10 See, e.g., Savage,
      122 M.S.P.R. 612, ¶¶ 42-43, 51 (setting forth the standards for adjudicating a
      discrimination affirmative defense); Alarid v. Department of the Army,
      122 M.S.P.R. 600, ¶¶ 12-15 (2015) (explaining the standards for adjudicating
      affirmative defenses of reprisal under 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i),
      (b)(9)(B), (b)(9)(C), and (b)(9)(D)).

                                              ORDER
¶21         For the reasons discussed above, we find that the administrative judge
      properly determined that the Board lacks jurisdiction over the appellant’s IRA
      appeal. In addition, we forward the removal appeal to the regional office for
      docketing and further adjudication in accordance with this order.

      9
        Nothing in this order, however, precludes the parties from submitting evidence or
      argument regarding whether the appellant made a binding election under
      section 7121(g) to pursue an IRA appeal by filing an OSC complaint concerning her
      removal that predated her June 20, 2014 Board appeal. In addition, in the removal
      appeal, the administrative judge is at liberty to explore the timeliness issue raised by
      the agency in its motion to dismiss. IAF, Tab 26.
      10
         On appeal, the appellant also checked boxes indicating she was raising various other
      claims. IAF, Tab 8 at 8. The administrative judge should clarify in the removal appeal
      whether the appellant is seeking to raise such claims, and, if so, afford her proper
      jurisdictional notice.
                                                                                   11

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      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
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 described in 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 by 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.
      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.
                                                                                 12

     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 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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
