                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANGELA M. NELSON,                               DOCKET NUMBER
                  Appellant,                         DA-1221-15-0197-W-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: February 29, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Angela M. Nelson, Leesville, Louisiana, pro se.

           Bernadine Lenahan, Esquire, Fort Polk, Louisiana, 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
     denied her request for corrective action in her individual right of action (IRA)
     appeal. 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 regulation or the erroneous application

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).

                                       BACKGROUND
¶2         Effective June 2, 2014, the agency appointed            the   appellant   to a
     GS-11 Clinical Nurse position at the Department of Behavioral Health at the
     agency’s Bayne-Jones Army Community Hospital.            Initial Appeal File (IAF),
     Tab 9 at 11, 14. On August 22, 2014, the agency informed the appellant that she
     was being terminated during her probationary period due to unsatisfactory
     performance and conduct. Id. at 14-15. The appellant resigned in lieu of being
     terminated effective that same day. Id. at 11-12. On or about September 6, 2014,
     the appellant submitted a complaint to the Office of Special Counsel (OSC)
     alleging that the agency had forced her to resign in retaliation for her
     whistleblowing activity at a July 14, 2014 meeting, during which she complained
     to management that A.C., the individual assigned to train her, was unwilling to
     train her and had treated her in a negative manner. IAF, Tab 7 at 8, 12-14. OSC
     notified the appellant by letter dated November 17, 2014, that it was terminating
     its inquiry into those allegations. Id. at 17-18.
                                                                                             3

¶3         The appellant timely filed an IRA appeal with the Board. 2 IAF, Tab 1. The
     administrative judge issued a jurisdictional order informing the appellant of her
     burden of proof and ordering her to file evidence and argument to establish Board
     jurisdiction over her IRA appeal. IAF, Tab 3. In response, the appellant asserted
     that she made protected disclosures to management regarding A.C.’s refusal to
     train her and her hostile behavior towards the appellant during a July 14, 2014
     meeting and that, as a result of her disclosures, the agency forced her to resign
     several weeks later, on August 22, 2014. 3 IAF, Tab 5 at 6-7. The appellant also
     submitted numerous documents, including, among other things, “sample packets”
     she purportedly presented to management detailing her complaints about A.C. and
     the training she had received. IAF, Tab 5. In relevant part, these documents
     assert that: A.C. treated the appellant in a disrespectful and hostile manner; A.C.
     had limited time to assist the appellant; A.C. did not want to train the appellant;
     A.C. had a “personal relationship” with the other trainee and “made constant
     comments like Miss [J] already knows how to do this, and Miss [J] can do this
     and Miss [J] can do that”; the orientation process was “confusing and
     overwhelming”; A.C. referred to the appellant and the other trainee as “you girls”
     in emails; A.C. initially praised the appellant’s progress but later questioned her
     understanding and informed her that she “asked too many repetitive questions”;
     A.C. appeared annoyed when the appellant tried to ask her questions; and, on one


     2
      Although the appellant initially requested a hearing, IAF, Tab 1 at 2, she subsequently
     withdrew her request, IAF, Tab 13.
     3
       As the administrative judge noted in the initial decision, contrary to the appellant’s
     statements that she met with management on July 14, 2014, other evidence suggests that
     the meeting occurred on or about August 6, 2014. IAF, Tab 22, Initial Decision (ID)
     at 6; see IAF, Tab 5 at 37, Tab 18 at 12, Tab 19 at 5. In addition, it is unclear which of
     the documents the appellant presented management at the meeting because, as the
     administrative judge noted, some of the documents post-date the alleged meeting or
     refer to the supervisor’s behavior during the meeting itself, indicating that they were
     drafted after the fact. ID at 6; see, e.g., IAF, Tab 5 at 18-19. Nonetheless, we need not
     resolve these discrepancies as they do not affect the outcome of the case.
                                                                                        4

     occasion, another instructor treated the appellant in a condescending manner and
     questioned her competence and comprehension level. Id. at 17-27.
¶4         In an initial decision based on the written record, the administrative judge
     found that the appellant had established jurisdiction over her IRA appeal by
     exhausting her administrative remedy and making nonfrivolous allegations that
     she had disclosed an abuse of authority and that the disclosure was a contributing
     factor in the agency’s decision to terminate her. ID at 5. However, he concluded
     that she failed to establish a prima facie case of whistleblower retaliation because
     she failed to meet her burden of showing by preponderant evidence that she made
     a protected disclosure. ID at 6. Specifically, the administrative judge found that
     a disinterested observer could not reasonably conclude that the appellant’s
     disclosures regarding A.C.’s “hostile” behavior evidenced an abuse of authority
     because the incidents, as described by the appellant, appeared to be within the
     bounds of appropriate workplace behavior and did not involve abusive language
     or denigrating, harassing, or intimidating behavior.        ID at 7.    Further, the
     administrative judge found that, although an arbitrary or capricious refusal to
     carry out one’s duties could fall within the definition of an abuse of authority, the
     appellant’s disclosure that A.C. had improperly refused to train her was not
     supported by the record. ID at 7-8.
¶5         The appellant has filed a petition for review of the initial decision, the
     agency has responded in opposition to the appellant’s petition for review, and the
     appellant has submitted a reply to the agency’s opposition. Petition for Review
     (PFR) File, Tabs 1, 3-4.

                                         ANALYSIS
¶6         To prevail on the merits of an IRA appeal in which the appellant alleges
     retaliation for protected disclosures, the appellant must prove by preponderant
     evidence that: (1) she reasonably believed that she made a protected disclosure
     concerning    one   or     more   categories   of   wrongdoing      enumerated     in
                                                                                         5

     section 2302(b)(8); and (2) her protected disclosure was a contributing factor in
     the   challenged      personnel       action.       Shibuya   v.    Department      of
     Agriculture, 119 M.S.P.R. 537, ¶¶ 27-28 (2013). If the appellant makes such a
     showing, the burden shifts to the agency to prove by clear and convincing
     evidence that it would have taken the same action in the absence of the
     disclosure. Id., ¶ 32; see 5 U.S.C. § 1221(e)(2).
¶7         One of the categories of wrongdoing specified in section 2302(b)(8) is an
     abuse of authority.    See 5 U.S.C. § 2302(b)(8)(A)(ii).      An abuse of authority
     occurs when there is an arbitrary or capricious exercise of power by a Federal
     official or employee that adversely affects the rights of any person or results in
     personal gain or advantage to himself or preferred other persons.           Pasley v.
     Department of the Treasury, 109 M.S.P.R. 105, ¶ 18 (2008).            Harassment or
     intimidation of other employees may constitute an abuse of authority.          Id. A
     supervisor’s use of his influence to denigrate other staff members in an abusive
     manner and to threaten the careers of staff members with whom he disagrees
     constitutes abuse of authority. Id.
¶8         As stated above, the administrative judge found that the appellant failed to
     show by preponderant evidence that she had a reasonable belief that she had
     disclosed an abuse of authority. ID at 6-8. On review, the appellant does not
     point to any specific error in the initial decision. PFR File, Tabs 1, 4. Rather,
     she states that she is “disappointed” in the initial decision and reiterates that A.C.
     treated her in a “hostile and abusive” and “harassing and intimidating” manner
     and that A.C. refused to train her or “did not provide sufficient training.” PFR
     File, Tab 1 at 3, Tab 4 at 4-6.
¶9         We agree with the administrative judge that the appellant has failed to show
     that she disclosed an abuse of authority based on A.C.’s alleged “hostile”
     treatment and failure to provide the appellant “sufficient” training.         As the
     administrative judge correctly explained, none of the appellant’s disclosures
     alleged that A.C. used abusive language or that she behaved in a denigrating,
                                                                                        6

      harassing, or intimidating manner towards the appellant. ID at 7. Rather, the
      events she described appear to be within the bounds of appropriate workplace
      behavior, including, for example, her allegations that A.C. questioned her
      understanding and referred to the appellant and another trainee in emails as “you
      girls.” Id.; see IAF, Tab 5 at 20. Furthermore, a disinterested observer could not
      reasonably conclude that the appellant’s allegations that the orientation process
      was “confusing and overwhelming” and that A.C. “looked annoyed” when the
      appellant asked her questions evidenced an arbitrary or capricious exercise of
      power by a Federal official.      IAF, Tab 5 at 20.   Furthermore, the appellant’s
      cursory allegations that A.C. treated her in a “hostile” and “disrespectful”
      manner, e.g., id. at 17-21, 26, are too vague to constitute a protected disclosure.
      See Rzucidlo v. Department of the Army, 101 M.S.P.R. 616, ¶ 13 (2006)
      (explaining that disclosures must be specific and detailed, not vague allegations
      of wrongdoing regarding broad or imprecise matters).
¶10         Insofar as the appellant disclosed that A.C. refused to train her, we agree
      with the administrative judge that the training logs, emails, and witness
      statements show that A.C. provided training to the appellant at least until July 14,
      2014. ID at 8; IAF, Tab 19 at 5-158. Moreover, as noted by the administrative
      judge, the appellant acknowledged that she informed management at the meeting
      that “it was not a good idea” for A.C. to continue to train her. ID at 8; see IAF,
      Tab 5 at 18.    Thus, a reasonable person in the appellant’s position could not
      reasonably conclude that she had disclosed an abuse of authority based on A.C.’s
      alleged refusal to train the appellant.
¶11         Based on the foregoing, we discern no basis for disturbing the
      initial decision.

                          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.
                                                                                  7

      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   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
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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 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.
