                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     COLLEEN A. FABRICK,                             DOCKET NUMBER
                   Appellant,                        CH-1221-15-0703-W-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: January 6, 2017
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Colleen A. Fabrick, Chicago, Illinois, pro se.

           Russ Eisenstein, Esquire, and Pamela D. Langston-Cox, Esquire, Chicago,
             Illinois, 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 Board
     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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     on an 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. However,
     for the reasons set forth below, we MODIFY the initial decision to find that the
     appellant failed to make a nonfrivolous allegation of a protected disclosure under
     5 U.S.C. § 2302(b)(8), and AFFIRM the dismissal of the appeal for lack of Board
     jurisdiction.

                                      BACKGROUND
¶2         The appellant is a Human Resources Assistant (Labor Relations), GS -0203-
     07, at the agency’s Internal Revenue Service (IRS) Human Capital Office in
     Chicago, Illinois. Initial Appeal File (IAF), Tab 11 at 30. In March 2012, she
     received a temporary promotion to the position of Human Resources Specialist,
     GS-0201-09. Id. at 46. That promotion ended in June 2012. Id. at 45. In 2013,
     the appellant filed an equal employment opportunity (EEO) complaint alleging
     age and race discrimination. Id. at 25-29.
¶3         In September 2014, the appellant was detailed for 60 days to the Leadership
     Succession, Readiness and Development (LEADS) group.             Id. at 32-35.   The
     detail was briefly extended, but ended on December 28, 2014. Id. In early 2015,
     an opportunity for a temporary part-time promotion became available in the
     agency’s Executive Misconduct Unit (EMU). Id. at 12-13. Although she applied
     for the opportunity, the appellant was not selected. Id.; IAF, Tab 1 at 1, Tab 4
                                                                                      3

     at 11.    The Associate Director of the Labor/Employee Relations (LER) office
     explained that she did not recommend the appellant for the opportunity because
     she previously had been given such an opportunity, whereas the se lectee had not.
     IAF, Tab 11 at 12-13.        In March 2015, management in LEADS asked the
     appellant to serve a second detail there. Id. at 13-16. However, the appellant’s
     immediate supervisor in consultation with her second-level supervisor determined
     that the appellant would not be released for the detail because there were staffing
     and workload concerns within her permanent group. Id.
¶4            The appellant filed a complaint with the Office of Special Counsel (OSC)
     on March 24, 2015, alleging that she had made two protected disclosures to the
     Treasury Inspector General for Tax Administration (TIGTA) in August 2013 and
     had subsequently been denied a temporary promotion and a second detail to
     LEADS. IAF, Tab 4 at 4-12. On July 27, 2015, OSC informed her that it had
     terminated its inquiry into her complaint, Case No. MA -15-3028, and apprised
     her of her Board appeal rights. Id. at 26.
¶5            On April 1, 2015, the appellant filed a motion to amend her ongoing EEO
     complaint to include the denial of the temporary promotion to the EMU. IAF,
     Tab 11 at 25-29.         On July 2, 2015, an Equal Employment Opportunity
     Commission administrative judge denied the appellant’s motion to amend her
     complaint and ordered the agency to advise her of the right to file a new
     complaint concerning the temporary promotion. Id. at 29. The agency informed
     the appellant of her rights, and she filed another EEO complaint on August 19,
     2015. Id. at 17-25.
¶6            On September 24, 2015, the appellant filed this appeal. IAF, Tab 1. The
     administrative judge issued an order informing the parties of the jurisdictional
     issues and directing the appellant to submit evidence and argument to establish
     the Board’s jurisdiction over her appeal. IAF, Tab 3. In response, the appellant
     identified two disclosures that she believed were protected under 5 U.S.C.
                                                                                      4

     § 2302(b)(8). She identified these disclosures in her OSC complaint, and they
     were listed in OSC’s close-out letter. IAF, Tab 4 at 9, 26.
¶7         The appellant’s alleged protected disclosures are two complaints she lodged
     in August 2013 with the TIGTA.         The appellant initially contacted TIGTA
     regarding a “‘suspicious crash’ possibly fraud” of the IRS E mployee Suggestion
     Program website, which she alleged occurred briefly after she submitted a
     suggestion regarding labor and employee relations training for new managers. Id.
     at 1. The appellant claimed that she never received a response or decision from
     the agency regarding her suggestion, though “portions of [her] suggestion appear
     to have been implemented.”       Id.   The TIGTA complaint information form
     attached to her jurisdictional response states that she “reported that she did not
     receive a monetary award after the IRS implemented a suggestion she submitted
     to the IRS as part of the Employee Suggestion Program and the President’s
     Securing Americans’ Value and Efficiency (SAVE) Award program.” Id. at 31,
     41. The appellant filed a second complaint with TIGTA on August 27, 2013,
     alleging “illegal threats” and “serious abuse” by the Associate Director of the
     LER office on four occasions since she began working for the IRS in 2007. Id.
     at 1, 9, 55-57.
¶8         A TIGTA Special Agent in Chicago, Illinois, received both of the
     appellant’s complaints. Id. at 2. TIGTA decided not to investigate either of the
     complaints and informed the appellant of its decision. IAF, Tab 11 at 11. The
     Special Agent did not contact any IRS manager or employee, other than the
     appellant, regarding the complaints.    Id.   Instead, “[c]onsistent with TIGTA’s
     procedures, the complaints were forwarded to the IRS Employee Conduct and
     Compliance Office (ECCO) for informational purposes only.” Id.
¶9         In her response to the Board’s jurisdictional order, the appellant identified
     the following personnel actions as those she believed were taken in retaliation for
     protected disclosures: (1) the agency’s failure to select her for the temporary
     promotion in the EMU in January 2015; and (2) the agency’s denial of a second
                                                                                             5

      detail opportunity in LEADS around May 2015. IAF, Tab 4 at 2; see 5 U.S.C.
      § 2302(a)(2)(A). She reported these actions to OSC in her complaint. IAF, Tab 4
      at 8, 18, 22.
¶10         The administrative judge issued an initial decision dismissing the appeal for
      lack of Board jurisdiction without holding a hearing, finding that the appellant
      failed to make a nonfrivolous allegation of the Board’s jurisdiction. 2              IAF,
      Tab 14, Initial Decision (ID) at 2, 11. The administrative judge did not determine
      whether the appellant’s alleged protected disclosures met the statutory definition
      and found instead that she had failed to nonfrivolously allege that her disclosures
      contributed to the agency’s decision not to temporarily promote or detail her. ID
      at 8-9.     The administrative judge noted that the appellant’s September 2014
      LEADS detail took place more than a year after her alleged protected disclosures
      to TIGTA, and so “[i]t belies logic” that the agency’s subsequent refusal to
      release her for second LEADS detail was retaliatory, given that it approved her
      for the first detail. ID at 9. The administrative judge found that the unrebutted
      evidence showed that her supervisors had no knowledge of her alleged protected
      disclosures until October 2015, after she filed her Board appeal. ID at 9; see IAF,
      Tab 11 at 11, 13-14, 16. The administrative judge thus concluded that, because
      the appellant did not show that her disclosures could have contribut ed to her
      supervisors’ decisions not to afford her either the temporary promotion or the
      detail opportunity, the appellant failed to meet her jurisdictional burden.           ID
      at 9-10.
¶11         The administrative judge additionally determined that the appellant failed to
      establish    the   Board’s   jurisdiction   over   her   nonselection     pursuant     to
      section 2302(b)(9), because the underlying allegations in her 2013 EEO complaint
      focused on title VII claims of race and age discrimination, and she did not

      2
        The initial decision we have cited is a revised initial decision, which corrected the
      finality date in the initial decision. Compare IAF, Tab 14, Initial Decision at 11, with
      IAF, Tab 12 at 11.
                                                                                           6

      characterize her complaint as a protected disclosure in her filing with OSC. ID
      at 10-11. Here, the administrative judge noted that the EEO complaints she had
      filed were ongoing and “best-suited for resolution through the Equal Employment
      Opportunity . . . process, which is where the y currently are.” Id. The appellant
      filed this petition for review. 3 Petition for Review (PFR) File, Tab 1.

                                           ANALYSIS
¶12         An appellant bears the burden of proving the Board’s jurisdiction over her
      appeal by a preponderance of the evidence.        5 C.F.R. § 1201.56(b)(2)(A). To
      establish the Board’s jurisdiction over an IRA appeal, an appellant must have
      exhausted her administrative remedies before the OSC and make nonfrivolous
      allegations of the following: (1) she made a protected disclosure described under
      5 U.S.C. § 2302(b)(8) or engaged in protected activity as specified in 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 t o take or fail to take a
      personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. §§ 1214(a)(3),
      1221; Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see
      Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
¶13         A protected disclosure for purposes of whistleblowing is one that the
      appellant reasonably believed evidenced gross mismanagement, a gross waste of
      funds, an abuse of authority, a substantial and specific danger to public health or
      safety, or any violation of a law, rule, or regulation. 5 U.S.C. § 2302(b)(8)(A).
      3
        The appellant appended to her petition for review several documents that are not
      already in the record. The documents she included are information and correspondence
      pertaining to her TIGTA complaints and to the functions of the EMU. PFR File, Tab 1
      at 8-23. Under 5 C.F.R. § 1201.115(d), the Board generally will not consider evidence
      submitted for the first time with the petition for review absent a showing that it was
      unavailable before the record was closed despite the party’s due diligence. Avansino v.
      U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). All of the
      documents included predate the October 30, 2015 close of the record in the proceeding
      before the administrative judge. IAF, Tab 8. The appellant has not shown these
      documents were unavailable to her before the close of the record despite her due
      diligence, and so we will not consider them.
                                                                                         7

      The disclosure must have been specific and detailed, not a vague allegation of
      wrongdoing regarding broad or imprecise matters. Rzucidlo v. Department of the
      Army, 101 M.S.P.R. 616, ¶ 13 (2006).        In other words, conclusory, vague, or
      unsupported allegations are insufficient to support a nonfrivolous allegation of
      jurisdiction in an IRA appeal.     Ontivero v. Department of Homeland Security,
      117 M.S.P.R. 600, ¶ 15 (2012). Conversely, nonfrivolous allegations of Board
      jurisdiction are allegations of fact that, if proven, could establish that the Board
      has jurisdiction over the appeal.      See 5 C.F.R. § 1201.4(s).     An allegation
      generally will be considered nonfrivolous when, under oath or penalty of perjury,
      an individual makes an allegation that is more than conclusory, plausible on its
      face, and material to the legal issues in the appeal. Id.
¶14         The administrative judge found that the appellant had exhausted her
      remedies with OSC.      ID at 8.   The administrative judge rendered no decision
      regarding the appellant’s alleged protected disclosures—the TIGTA complaints—
      except to opine that her allegations regarding those disclosures might be
      deficient. ID at 9. Instead, she concluded that the Board lack s jurisdiction over
      the appeal based on her finding that the appellant failed to nonfrivolously allege
      that the complaints contributed to the agency’s failure to temporarily promote her
      and to detail her to LEADS for a second time. ID at 8-10. The administrative
      judge relied upon agency-submitted declarations from the appellant’s supervisors
      stating that they were unaware of her TIGTA complaints prior to her filing of this
      appeal. ID at 9; see IAF, Tab 11 at 11, 13-14, 16.
¶15         On review, the appellant argues that because the LER Associate Director
      had administrative oversight over the EMU, “any reasonable person” would
      conclude that the Associate Director and her assistant (the appellant’s first -level
      supervisor) “had knowledge either direct or indirect of [her] hostile work
      environment claims.” PFR File, Tab 1 at 3. She asserts that the agency simply
      withheld evidence that would rebut the supervisors’ declarations. Id. at 4.
                                                                                       8

¶16             At this stage of the proceedings, the appellant’s burden is only to make
      nonfrivolous allegations.        Jessup v. Department of Homeland Security,
      107 M.S.P.R. 1, ¶ 10 (2007).         Although the appellant has not presented any
      evidence supporting her assertion that the LER Associate Director’s oversight
      over the EMU extended to the ECCO, where the TIGTA complaints were
      forwarded, IAF, Tab 11 at 11, the agency’s evidence regarding the supervisors’
      knowledge or lack thereof merely contradicts the appellant’s allegations.       In
      determining whether an appellant has made a nonfrivolous jurisdictional
      allegation, the administrative judge may consider the agency’s documentary
      submissions; however, to the extent that the agency’s evidence constitutes mere
      factual contradiction of the appellant’s otherwise adequate prima facie showing of
      jurisdiction, the administrative judge may not weigh evidence and resolve
      conflicting assertions of the parties, and the agency’s evidence may not be
      dispositive. Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446, ¶ 11
      (2014); Inman v. Department of Veterans Affairs, 112 M.S.P.R. 280, ¶¶ 7, 11
      (2009). The administrative judge thus should not have considered the agency’s
      declarations as dispositive. Accordingly, we vacate the findings as to whether the
      appellant nonfrivolously alleged that her disclosures contributed to the agency’s
      alleged failure to take certain personnel actions.
¶17             We need not remand the appeal, however, because the record does not
      support a finding that the appellant met the first prong of the jurisdictional
      standard.      The appellant identified two alleged protected disclosures in her
      jurisdictional response, and OSC addressed these disclosures in its close-out
      letter.     IAF, Tab 4 at 1-3, 26.    According to the appellant, both disclosures
      occurred in August 2013, and both were made in complaints submitted to the
      same TIGTA agent in Chicago, Illinois.         Id. at 2, Tab 11 at 11. TIGTA has
      independent authority to determine whether to investigate complaints it receives,
      and it decided not to investigate either of the appellant’s complaints. IAF, Tab 4
      at 1-2, Tab 11 at 11.
                                                                                           9

¶18        The appellant’s first complaint pertains to a “suspicious crash” of the
      agency’s website for the collection of employee suggestions shortly after she
      submitted a suggestion to the SAVE Award program pertaining to the curriculum
      used in the training of new agency managers. IAF, Tab 4 at 1, 31, 41, 50. The
      appellant submitted her suggestion in 2010. Id. at 50. In the aftermath of the
      crash, she asserted, “portions of [her] suggestion appear to have been
      implemented,” but she never received a response or decision regarding her
      suggestion. Id. at 1. The appellant’s second TIGTA complaint alleged “illegal
      threats, serious abuse and demonstrated prohibited personnel practices” by the
      LER Associate Director on four occasions from the time she began working for
      the IRS in 2007 through May 2013. Id. at 1, 56.
¶19        A protected disclosure is one that an employee reasonably believed
      evidenced gross mismanagement, a gross waste of funds, an abuse of authority, a
      substantial and specific danger to public health or safety, or a ny violation of a
      law, rule, or regulation. 5 U.S.C. § 2302(b)(8)(A). An appellant need not prove
      that the matter she disclosed established any of these conditions. Applewhite v.
      Equal Employment Opportunity Commission, 94 M.S.P.R. 300, ¶ 12 (2003).
      Instead, she must have nonfrivolously alleged that the matter she disclosed was
      one that a reasonable person in her position would believe evidenced any of the se
      conditions. Id. The test for determining whether or not her belief was reasonable
      is to inquire whether a disinterested observer with knowledge of the essential
      facts she knew or could readily ascertain could reasonably conclude that the
      agency’s actions evidenced one of the conditions set forth in the statute. Id.
¶20        We conclude that the appellant could not have reasonably believed that the
      actions she was reporting to TIGTA evidenced any of these conditions. She did
      not allege that the disclosed actions violated any law, rule, or regulation, nor did
      she assert that they constituted a substantial and specific danger to public health
      or safety, or a gross waste of funds.       Her disclosures appear to have been
      allegations of either gross mismanagement or abuse of authority.                 Gross
                                                                                        10

      mismanagement means a management action or inaction that creates a substantial
      risk of significant adverse impact upon the agency’s ability to accomplish its
      mission. White v. Department of the Air Force, 63 M.S.P.R. 90, 95 (1994).         An
      abuse of authority occurs when a Federal official or employee arbitrarily or
      capriciously exercises power and adversely affected anyone’s rights or causes
      personal gain or advantage to himself or to someone he prefers.             Webb v.
      Department of the Interior, 122 M.S.P.R. 248, ¶ 10 n.3 (2015).
¶21        As for her first alleged protected disclosure, the appellant failed to offer any
      evidence that her allegation of a suspicious computer crash and possible fraud
      were anything other than mere speculation.         A disinterested observer with
      knowledge of the essential facts that the appellant knew or could readily ascertain
      could not reasonably conclude that agency personnel caused or allowed to occur
      such a systems failure so that the appellant’s submission to the SAVE Award
      program would be lost in order to avoid paying the award she would have
      otherwise won in that Government-wide competition. The appellant offered no
      evidence that the relevant computer system crashed during the relevant
      timeframe. Her allegations regarding such a crash have evolved over time. Other
      than to allege that her SAVE Award suggestion was stolen, she did not speculate
      in her TIGTA complaint as to why she did not receive an award for her
      suggestion or suggest that the agency’s Employee Suggestion Program website
      failed while her suggestion was pending. IAF, Tab 4 at 31, 41, 50. In her OSC
      complaint, she explained that she recalled that a computer crash “supposedly
      occurred exactly during the timeframe I submitted a very valuable su ggestion to
      the proper platform” after she heard about other systems problems at the agency
      in the summer of 2013. Id. at 9. In her jurisdictional response for this appeal,
      she stated that such a system crash “supposedly” occurred, and that “to ensure the
      truth,” it was incumbent on TIGTA to investigate what had occurred “in light of
      what appears to be many other ‘suspicious’ IRS computer crashes.” Id. at 1-2.
      Even if the appellant had shown that a systems failure occurred, she has not made
                                                                                     11

      a nonfrivolous allegation that she reasonably believed such a failure created a
      substantial risk of significant adverse impact upon the agency’s ability to
      accomplish its mission, or that someone intentionally caused it to block her
      submission for the SAVE Award program.        To the contrary, the evidence she
      submitted shows that her entry was received and considered, but did not merit an
      award. Id. at 48.
¶22        As for her second alleged protected disclosure, we likewise cannot find that
      the appellant reasonably believed that the four incidents she disclosed evidenced
      a substantial risk of significant adverse impact upon the agency’s ability to
      accomplish its mission.   As for whether the incident represented an abuse of
      authority, the Board has found that supervisory bullying and intimidation may be
      abuse of authority, Special Counsel v. Costello, 75 M.S.P.R. 562, 580 (1997),
      rev’d on other grounds, 182 F.3d 1372 (Fed. Cir. 1999), and that there is no
      de minimis standard for abuse of authority, D’Elia v. Department of the Treasury,
      60 M.S.P.R. 226, 232 (1993), overruled on other grounds by Thomas v.
      Department of the Treasury, 77 M.S.P.R. 224 (1998), overruled in part on other
      grounds by Ganski v. Department of the Treasury, 86 M.S.P.R. 32 (2000).
¶23        Nevertheless, nothing the appellant disclosed would lead a disinterested
      observer with knowledge of the essential facts that she knew or could readily
      ascertain to reasonably conclude that the LER Associate Director engaged in such
      an arbitrary or capricious exercise of power.     Only two of the four alleged
      incidents directly involved the appellant’s encounters with the LER Associate
      Director. In one such incident, the LER Associate Director allegedly told the
      appellant that she was “unreliable and unable to perform her job correctly” during
      a staff meeting related to a “furlough project.” IAF, Tab 4 at 66. In an email
      message to TIGTA supporting her complaint, however, the appellant described
      the LER Associate Director complimenting one of her coworkers for reliably
      completing an assigned project. Id. at 100. In another of the incidents, which
      occurred when the appellant met the LER Associate Director during her first
                                                                                          12

      week of work, the Associate Director opined that the appellant’s sandals were not
      appropriate office attire. Id. at 69. The appellant explained that she had been
      wearing the sandals for medical reasons.         Id.    It is difficult to see how a
      reasonable person would construe the LER Associate Director’s comment under
      the circumstances as anything other than an attempt to inform a new employee
      about appropriate office attire. The other two allegations are briefly described in
      the appellant’s email correspondence with TIGTA.           Id. at 99-101.   One such
      incident pertains to a “snide comment” made by a person other than the LER
      Associate Director suggesting that the appellant would be absent from work
      because she was “going before Congress to testify” rather than absent because of
      upcoming medical leave.      Id. at 100.    The other allegation is the appellant’s
      general   observation    regarding    the   Associate    Director’s   demeanor     and
      mannerisms. 4 Id. at 99-101. Even if the LER Associate Director spoke in a “loud
      threatening (bullying) tone [that] can be heard all throughout [the] workspace,” as
      the appellant alleged, id. at 101, she failed to make a specific and detailed
      allegation of wrongdoing, see Rzucidlo, 101 M.S.P.R. 616, ¶ 13; cf., e.g., Murphy
      v. Department of the Treasury, 86 M.S.P.R. 131, ¶ 7 (2000) (holding that a
      supervisor who engaged in “threats, swearing, [and] physical acts of aggression”
      to intimidate the appellant and other staff members into following the
      supervisor’s requests without question was abusing his authority). We thus find
      that the appellant failed to make a nonfrivolous allegation of having made a
      protected disclosure under 5 U.S.C. § 2302(b)(8).
¶24         Because the appellant failed to meet the first prong of the jurisdictional
      standard, there is no need to issue a formal finding regarding whether the
      appellant nonfrivolously alleged that the agency took or failed to take a personnel


      4
        To the extent that the appellant’s OSC complaint describes additional incidents, IAF,
      Tab 4 at 7-8, she has not alleged reprisal for disclosing these matters to OSC. The
      record also includes a document that appears to have been prepared for the appellant’s
      EEO complaint, wherein she described various incidents. Id. at 82-90.
                                                                                          13

      action as defined by the statute, though we note that the actions she alleged on
      their face would fall within the statutory definition.     See 5 U.S.C. § 2302(a),
      (2)(A)(ii), (iv), (xii). There is also no need to address issues the appellant raises
      that might go to whether the agency would have met its burden to prove by clear
      and convincing evidence that it would have declined to take the same personnel
      action in the absence of any protected disclosure. 5 U.S.C. § 1221(e); Whitmore
      v. Department of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012); see PFR File,
      Tab 1 at 1.
¶25         The appellant also asserts on review that her 2013 EEO complaint
      constitutes a protected whistleblowing disclosure or activity. PFR File, Tab 1
      at 2, 5. The administrative judge found that the appellant did not claim that her
      EEO complaint was a protected disclosure, and in any event, she did not exhaust
      her administrative remedies with OSC for that complaint. ID at 4 n.2, 10; see
      Cassidy v. Department of Justice, 118 M.S.P.R. 74, ¶ 5 (2012) (finding that an
      employee seeking corrective action for whistleblower reprisal under 5 U.S.C.
      § 1221 is required to seek corrective action from OSC before appealing to the
      Board). Here, the appellant raises a new argument for the first time on review.
      The Board generally will not consider an argument raised for the first time absent
      a showing that it is based on new and material evidence not previously available
      despite the party’s due diligence.      Banks v. Department of the Air Force,
      4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). The appellant has not made
      such a showing. To the extent that the appellant is reasserting issues she raised
      before the administrative judge, we find that she has not established error.
      Although attachments to her jurisdictional pleading reference her EEO
      complaints, she did not specifically allege that her 2013 complaint was one of her
      protected disclosures.   IAF, Tab 4 at 1-3.     The appellant discussed her EEO
      complaint with OSC and opined that the agency had not processed it to her
      satisfaction, but she did not assert therein that she considered h er complaint to be
      one of her protected disclosures, nor did OSC treat it as such. Id. at 9, 22, 26.
                                                                                       14

¶26         Likewise, the appellant’s possible claim–that her filing the EEO complaint
      constituted whistleblowing activity and that the agency retaliate d against her for
      that activity–is unavailing under the circumstances. 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
      2302(b)(9)). The Whistleblower Protection Enhancement Act of 2012 extended
      the Board’s jurisdiction over IRA (whistleblower) 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, filed by the appellant on his or
      her own behalf, that do not concern remedying a violation of subparagraph (b)(8).
      5 U.S.C. §§ 1221(a), 2302(b)(9)(A); Mudd v. Department of Veterans Affairs,
      120 M.S.P.R. 365, ¶ 7 (2013). In any event, as stated above, the administrative
      judge correctly found that the appellant failed to exhaust her administrative
      remedies at OSC as to her EEO complaint. ID at 10. Accordingly, we affirm the
      administrative judge’s findings regarding these issues. ID at 10-11.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
      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).
                                                                                     15

         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 U nited
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 at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
                                                                                 16

Merit Systems Protection Board neither endorses the services provided b y 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.
