NOTE: This disposition is nonprecedential.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 Departm ent of Justice, of Washingt on, DC, for respondent. With her on the brief were Jeanne E. Davidson , Director, and Harold D. Lester, Jr. , Assistant Director. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential.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 Syst ems 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 fo r review of a final decision of the Merit Systems Protection Board (“Board”) affirmi ng 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 remova l, Stribling was a secretar y in the agency’s Office of Federal Student Aid. Initial Decision at 1. In May 2005, Stri bling was transferred from

* Honorable Janet B. Ar terton, District Judge, Unit ed States District Court for the District of Connecticut, sitting by designation.Philadelphia to the agency’s o ffice 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 tem porary 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 expe nses until August 30, 2005. Id. at 20-21. Additionally, on August 8, 2005, Stribling reported to he r supervisor that she had suffered a medical emergency, and she r equested to be placed on unpaid leave. Id. Stribling’s supervisor granted the reques t, but requested specific medical documentation of Stribling’s me dical condition and prognosis. Id. at 12-14. When Stribling failed to provide the requested m edical documentation, her supervisor ordered her to return to work e ffective September 15, 2005. Id. Stribling did not return to work for fifteen days during the per iod from September 15, 20 05 through October 5, 2005, nor did she contact her supervisor on those dates to request leave as required by the agency’s collective bar gaining agreement. Id. at 7, 14. The agency removed Stribling for absence wit hout 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 evidenc e, 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 2I Preliminarily, we addr ess our jurisdiction to hear St ribling’s appeal. Before the Board, Stribling raised an affi rmative defense of disability discrimination, and the Board found that she had failed to prove the defense by a pre ponderance of the evidence. Id. at 26. Ordinarily, this court has “no juri sdiction 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 cl aim of discrimination.” Davidson v. U.S. Postal Serv. , 24 F.3d 223, 223-24 (Fed. Cir. 1994). In this case, Stri bling explicitly waived her discrimination claims by completing this co urt’s Rule 15(c) St atement 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 arbitr ator has been abandoned or will not be raised or continued in this or any other court.” Notwithstanding this explicit waiver, Stri bling’s informal brief contains, among her other arguments, an assertion t hat her affirmative defense of disability discrimination was wrongly decided becau se “[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 discrim ination, 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 discr imination not before us. Accordingly, we will not addre ss 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 3II “Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board’s deci sion unless we find it to be arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordance 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 pet itioner 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. Firs t, Stribling asserts that the Board made errors in fact-finding by overlooking va rious emails, questionnaires, letters, and other documents that Stribling has identified in t he record. We have reviewed each of the documents that Stribling has identified, and find nothing that cont radicts the Board’s findings. Although some of the identified docu ments concern Stribling’s efforts to obtain treatment for medical cond itions, none of the identifi ed documents suggests that Stribling ever obtained or submitted the medical docum entation 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 request ing leave. Finally, none of the identified documents suggests that Stribling was authorized to us e her government travel credit card for expenses after its expiration on August 7, 2005. Thus, we conclude that the Board’s findings concerning Striblin g’s absence without leave, her failure to follow leave

2008-3336 4requesting procedures, and her misuse of a government travel credit card are all supported by substantial evidence. Second, Stribling argu es that the Board erred by re jecting her claim that she was terminated as a result of protec ted 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 t he 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 ne ither explained at the Board nor explains on appeal how her disclosures concerning m anagers in the Philadelphia office could have been the cause of her termination two years later by different managers in the Washington D.C. office. A ccordingly, we have no basis on which to disturb the Board’s reject ion of this claim. In sum, we cannot conclude that the Board’s decision was “arbitrary, capricious, an abuse of discretion, or ot herwise not in accordance with law; obtained without procedures required by law, rule, or regul ation having been follow ed; or unsupported by

2008-3336 52008-3336 6 substantial evidence.” Abell , 343 F.3d at 1382-83. We therefore affirm the decision of the Board. COSTS No costs.