             NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
             is not citable as precedent. It is a public record.

  United States Court of Appeals for the Federal Circuit

                                    05-3208

                          BARBARA J. THOMPSON,

                                               Petitioner,

                                       v.

         DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

                                               Respondent.

                            ____________________

                         DECIDED: November 1, 2005
                           ____________________

Before NEWMAN, LOURIE, and RADER, Circuit Judges.

PER CURIAM.

      Barbara J. Thompson petitions for review of the final decision of the Merit

Systems Protection Board dismissing her Individual Right of Action (“IRA”)

appeal for lack of jurisdiction and denying her request for corrective action for

nonselection for a promotion. Thompson v. Dep’t of Hous. & Urban Dev., No.

AT-1221-03-0411-W-2 (M.S.P.B. April 29, 2005). We affirm.

                                BACKGROUND

      Barbara J. Thompson was employed as an Associate Community Builder

in the Columbia, South Carolina Office of the Department of Housing and Urban

Development (“HUD”). In April 2002, the Community Builder program was
abolished, and Thompson was transferred to the Multi-Family Division as a

Construction Analyst. On June 1, 2002, Thompson retired from HUD.

       On June 16, 2001, Thompson filed an EEO complaint, alleging a hostile

work environment based on her race and gender. The AJ eventually dismissed

the complaint for lack of jurisdiction to allow her complaint to be heard by the

Board. Thompson filed two complaints at the Office of Special Counsel (“OSC”),

alleging retaliation for engaging in whistleblowing activity.    Her claims were

terminated without remedying her complaints.       Thompson then filed an IRA

appeal to the Board in August 2003.         She contended that due to what she

considered intolerable work conditions she was forced to resign, and she claimed

she was retaliated against for reporting those conditions along with other

employee misconduct in violation of the Whistleblower Protection Act (“WPA”).

       The AJ held a two-day hearing on the merits of her involuntary resignation

and whistleblower claims.       Thompson argued that the following specific

circumstances showed a hostile work environment: (1) humiliation by being

included in a clerical staff meeting, (2) being forced to pay $60 for a meal and

being the only presenter required to work in the hallway, (3) fear of a supervisor,

Gregorie, because he pulled an imaginary gun on her in an intimidating manner,

and (4) the agency’s failure to address or remedy the decline in her health.

Thompson argued that due to those conditions, as well as others, she was forced

to retire.   She further alleged that she reported some of the alleged hostile

conditions to an employee, Scioscia, and others, and because of the disclosures,

she was not selected for a promotion.




05-3208                                 2
       With respect to her involuntary resignation claim, the AJ determined that

Thompson failed to establish by preponderant evidence that working conditions

were made so difficult by the agency that a reasonable person in her position

would have felt compelled to resign. The AJ found Thompson’s testimony of the

described events to be not credible in some instances and considered Thompson

to have overreacted in others.         The AJ considered the totality of the

circumstances and determined that a reasonable person would have had a

choice whether to resign or not.     Because Thompson did not prove that her

resignation was involuntary, the claim was dismissed for lack of jurisdiction.

       As for her whistleblower claim, the AJ held that certain disclosures by

Thompson were not protected under the WPA. Scioscia, the recipient of her

disclosures, was not a supervisor. Since Scioscia was not in a position to correct

the abuse, and he did not report the disclosures to anyone else, the AJ found

that the disclosures did not qualify as protected disclosures under the WPA.

Also, Thompson failed to prove by preponderant evidence that her disclosures

were a contributing factor in her nonselection for the promotion. Furthermore,

even if Thompson established that they were a contributing factor, the agency

proved by clear and convincing evidence that it would have selected the other

candidate over Thompson in any event. Because Thompson did not establish

her claim of nonselection for a promotion, the AJ denied her request for

corrective action.

       Thompson petitioned the full Board for review of her case in January

2004. In April 2005, the full Board denied Thompson’s petition for review, and




05-3208                                  3
the AJ’s decision became the Board’s final decision. See 5 C.F.R. § 1201.113(b).

Thompson timely appealed to this court. We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).

                                  DISCUSSION

      The scope of our review in an appeal from a decision of the Board is

limited. We must affirm the Board’s decision unless it was “(1) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (2)

obtained without procedures required by law, rule, or regulation having been

followed; or (3) unsupported by substantial evidence.”       5 U.S.C. § 7703(c)

(2000); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).

A board decision is unsupported by substantial evidence when it lacks “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933

(Fed. Cir. 1984) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 299

(1938)). Whether the Board has jurisdiction to adjudicate a particular appeal is a

question of law, which this court reviews without deference. Diefenderfer v. Merit

Sys. Prot. Bd., 194 F.3d 1275, 1277 (Fed. Cir. 1999).

      On appeal, Thompson contends that the Board either misunderstood or

failed to consider several significant facts that support her claims, including the

alleged harassment and discriminatory treatment by Gregorie and others. She,

however, does not assert any particular error of law or procedure by the Board,

nor have we discerned any such error ourselves.           Moreover, the Board’s

credibility determinations and the fact that Thompson’s disclosures were not




05-3208                                 4
made to anyone in a position to remedy her complaints are supported by

substantial evidence.

      Thompson did appear before this Court to indicate how she had been

mistreated and how her claims were ignored within the agency. These are all

fact questions, however, and an appellate court is not in a position to appraise

the soundness of these assertions. Our role is to ascertain whether there was an

amount of evidence upon which a reasonable fact-finder could arrive at its

decision, and here there was. Accordingly, we affirm the decision of the Board.

No costs.




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