                      NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                        2008-3336

                                 JANICE L. STRIBLING,

                                                              Petitioner,

                                             v.

                           DEPARTMENT OF EDUCATION,

                                                              Respondent.


      Janice L. Stribling, of Alexandria, Virginia, pro se.

       Maame A.F. Ewusi-Mensah, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
her on the brief were Jeanne E. Davidson, Director, and Harold D. Lester, Jr., Assistant
Director.

Appealed from: Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                         2008-3336

                                  JANICE L. STRIBLING,

                                                         Petitioner,

                                             v.

                            DEPARTMENT OF EDUCATION,

                                                         Respondent.


Petition for review of the Merit Systems Protection Board in DC0752080086-I-1.

                             __________________________

                              DECIDED: February 5, 2009
                             __________________________

Before LINN and PROST, Circuit Judges, and ARTERTON, District Judge. *

PER CURIAM.

       Janice L. Stribling (“Stribling”) petitions for review of a final decision of the Merit

Systems Protection Board (“Board”) affirming her removal from employment by the

Department of Education (the “agency”).              Stribling v. Dep’t of Educ., No.

DC0752080086-I-1 (M.S.P.B. Mar. 4, 2008) (“Initial Decision”), review denied, Stribling

v. Dep’t of Educ., No. DC0752080086-I-1 (M.S.P.B. Aug. 4, 2008). Because Stribling

has identified no basis for us overturn the Board’s decision, we affirm.

       At the time of her removal, Stribling was a secretary in the agency’s Office of

Federal Student Aid. Initial Decision at 1. In May 2005, Stribling was transferred from

       *
               Honorable Janet B. Arterton, District Judge, United States District Court
for the District of Connecticut, sitting by designation.
Philadelphia to the agency’s office in Washington, D.C. Id. at 20. In connection with

this transfer, Stribling was given a government credit card to cover authorized relocation

expenses, including a temporary housing allowance. Id. Stribling’s temporary housing

allowance expired on August 7, 2005, but she continued to use her travel credit card to

pay for housing and other expenses until August 30, 2005. Id. at 20-21.

       Additionally, on August 8, 2005, Stribling reported to her supervisor that she had

suffered a medical emergency, and she requested to be placed on unpaid leave. Id.

Stribling’s   supervisor   granted   the   request,   but   requested   specific    medical

documentation of Stribling’s medical condition and prognosis.       Id. at 12-14.     When

Stribling failed to provide the requested medical documentation, her supervisor ordered

her to return to work effective September 15, 2005. Id. Stribling did not return to work

for fifteen days during the period from September 15, 2005 through October 5, 2005,

nor did she contact her supervisor on those dates to request leave as required by the

agency’s collective bargaining agreement. Id. at 7, 14.

       The agency removed Stribling for absence without leave, failure to follow leave

requesting procedures, and misuse of a government travel credit card.              Id. at 1.

Following a hearing, an administrative judge of the Board found that the agency had

proven all three charges by a preponderance of the evidence, and that Stribling had

failed to prove either of her affirmative defenses of disability discrimination and

retaliation. Id. at 7-28. The administrative judge also concluded that the agency had

properly applied the Douglas factors and that the penalty of removal was reasonable.

Id. at 28-30 (citing Douglas v. Veterans Admin., 5 M.S.P.R. 280, 306 (1981)). The full

Board denied review, and Stribling appeals.




2008-3336                                    2
                                                I

       Preliminarily, we address our jurisdiction to hear Stribling’s appeal. Before the

Board, Stribling raised an affirmative defense of disability discrimination, and the Board

found that she had failed to prove the defense by a preponderance of the evidence. Id.

at 26. Ordinarily, this court has “no jurisdiction over the merits of a mixed case, i.e., one

involving an adverse action and a claim of discrimination,” unless “the petitioner files an

explicit waiver of the claim of discrimination.” Davidson v. U.S. Postal Serv., 24 F.3d

223, 223-24 (Fed. Cir. 1994). In this case, Stribling explicitly waived her discrimination

claims by completing this court’s Rule 15(c) Statement Concerning Discrimination (Form

10), and checking the box stating that “Any claim of discrimination by reason of race,

sex, age, national origin, or handicapped condition raised before and decided by the

Merit Systems Protection Board or arbitrator has been abandoned or will not be raised

or continued in this or any other court.”

       Notwithstanding this explicit waiver, Stribling’s informal brief contains, among her

other arguments, an assertion that her affirmative defense of disability discrimination

was   wrongly    decided    because    “[t]he       MSPB   failed   to   consider   reasonable

accommodation.” Pet’r’s Informal Br. ¶ 4. Because Stribling’s Rule 15(c) statement

unambiguously waived any claim based on discrimination, and because this is neither a

case in which the petitioner’s other arguments cannot be divorced from her

discrimination claim, nor one in which the appeal is based entirely on allegations of

discrimination, the court deems the argument based on discrimination not before us.

Accordingly, we will not address it and do not consider it to defeat our jurisdiction

pursuant to 28 U.S.C. § 1295(a)(9) over Stribling’s appeal.




2008-3336                                       3
                                            II

      “Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence.” Abell v. Dep’t of Navy, 343 F.3d 1378, 1382-83

(Fed. Cir. 2003) (citing 5 U.S.C. § 7703(c)).     “The petitioner bears the burden of

establishing error in the Board’s decision.” Harris v. Dep’t of Veterans Affairs, 142 F.3d

1463, 1467 (Fed. Cir. 1998).

      Apart from the discrimination argument we have deemed not before us, Stribling

raises two principal arguments on appeal. First, Stribling asserts that the Board made

errors in fact-finding by overlooking various emails, questionnaires, letters, and other

documents that Stribling has identified in the record. We have reviewed each of the

documents that Stribling has identified, and find nothing that contradicts the Board’s

findings. Although some of the identified documents concern Stribling’s efforts to obtain

treatment for medical conditions, none of the identified documents suggests that

Stribling ever obtained or submitted the medical documentation that her supervisor

expressly requested to justify her request for leave. Likewise, none of the identified

documents suggests that Stribling complied with the terms of the agency’s collective

bargaining agreement when requesting leave. Finally, none of the identified documents

suggests that Stribling was authorized to use her government travel credit card for

expenses after its expiration on August 7, 2005. Thus, we conclude that the Board’s

findings concerning Stribling’s absence without leave, her failure to follow leave




2008-3336                                   4
requesting procedures, and her misuse of a government travel credit card are all

supported by substantial evidence.

       Second, Stribling argues that the Board erred by rejecting her claim that she was

terminated as a result of protected whistleblowing activity. “To establish a violation of

the Whistleblower’s Protection Act (WPA), we require proof of four elements: (1) the

acting official has the authority to take, recommend, or approve any personnel action;

(2) the aggrieved employee made a disclosure protected under [5 U.S.C. §] 2302(b)(8);

(3) the acting official used his authority to take, or refuse to take, a personnel action

against the aggrieved employee; (4) the acting official took, or failed to take, the

personnel action against the aggrieved employee because of the protected disclosure.”

Drake v. Agency for Int’l Dev., 543 F.3d 1377, 1380 (Fed. Cir. 2008) (quoting Lachance

v. White, 174 F.3d 1378, 1380 (Fed. Cir. 1999)).      The Board found that Stribling’s

alleged whistleblowing activity occurred two years prior to her removal, and that it

concerned actions by management officials in the Philadelphia office of the Office of

Federal Student Aid. Initial Decision at 6 n.2. Stribling neither explained at the Board

nor explains on appeal how her disclosures concerning managers in the Philadelphia

office could have been the cause of her termination two years later by different

managers in the Washington D.C. office. Accordingly, we have no basis on which to

disturb the Board’s rejection of this claim.

       In sum, we cannot conclude that the Board’s decision was “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law; obtained without

procedures required by law, rule, or regulation having been followed; or unsupported by




2008-3336                                      5
substantial evidence.” Abell, 343 F.3d at 1382-83. We therefore affirm the decision of

the Board.

                                       COSTS

      No costs.




2008-3336                                 6
