UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANGELA M. NELSON,

Appellant,

v. 

DEPARTMENT OF THE ARMY,

Agency. 

DOCKET NUMBER

DA-1221-15-0197-W-1

DATE: February 29, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 
8

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board