NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

TERRI V. STRICKLAND-DONALD,

Petitioner

v.

DEPARTMENT OF THE ARMY,

Respondent

______________________ 

2016-1635

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DE-1221-15-0132-W-1.

______________________ 

Decided: August 9, 2016

______________________ 

TERRI V. STRICKLAND-DONALD, Leavenworth, KS, pro 

se.

DELISA SANCHEZ, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN C.

MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-MILLER;

ANNE E. HINKEBEIN, Office of the Judge Advocate General, Labor and Employment Law Division, United States 

Department of the Army, Rosslyn, VA.

______________________ 
2 STRICKLAND-DONALD v. DEP’T OF THE ARMY

Before O’MALLEY, WALLACH, and TARANTO, Circuit Judges.

PER CURIAM. 

Terri V. Strickland-Donald appeals the final decision 

of the Merit Systems Protection Board (“MSPB”) denying 

her request for corrective action sought in her Individual 

Right of Action (“IRA”) appeal under the Whistleblower 

Protection Act of 1989 (“WPA”), Pub. L. No. 101-12, 103 

Stat. 16 (codified as amended in scattered sections of 5

and 22 U.S.C.) and the Whistleblower Protection Enhancement Act of 2012, Pub. L. 112-199, 126 Stat. 1465 

(codified as amended in scattered sections of 5, 6, and 31 

U.S.C.). See Strickland-Donald v. Dep’t of the Army, No. 

DE-1221-15-0132-W-1 (M.S.P.B. Dec. 31, 2015) (Resp’t’s 

App’x 31–43). We affirm. 

BACKGROUND

In November 2008, Ms. Strickland-Donald was employed by the United States Army (“Army”) as an Audiovisual Production Specialist, at the GS-11 pay grade, in 

the Visual Information Support Center (“VISC”) at Camp 

Humphreys, South Korea. Resp’t’s App’x 9, 32. In either 

late 2009 or early 2010, Ms. Strickland-Donald’s first-line 

supervisor at Camp Humphreys, Douglas Mitchell, “advised her that he believed her position description needed 

to be updated to reflect additional duties she was performing, which merited a GS-12 classification.” Id. at 32

(citation omitted). From May to December 2010, several 

Human Resource Specialists reviewed Ms. StricklandDonald’s job description, but those reviews did not result 

in the requested reclassification. Id. at 32–33. Mr. 

Mitchell subsequently retired in 2011. Id. at 33.

Because Ms. Strickland-Donald did not “receive[] the 

promotion to which she believed she was entitled,” she 

“continued to raise the matter with various [Army] offi-
STRICKLAND-DONALD v. DEP’T OF THE ARMY 3

cials.” Id. In March 2013, Ms. Strickland-Donald pursued another avenue for obtaining reclassification when 

she apprised a senior rater about the actions taken in 

2010. Id. Ms. Strickland-Donald subsequently forwarded 

her communications with the senior rater to her new firstline supervisor, Edward Johnson. Id. Mr. Johnson informed Ms. Strickland-Donald that he would discuss her 

reclassification with the Civilian Personnel Advisory 

Center (“CPAC”). Id. No reclassification occurred as a 

result of these efforts. Id. at 33–34.

In July 2014, through the Army’s Priority Placement 

Program, Ms. Strickland-Donald received a new job in 

Fort Leavenworth, Kansas, as an Audiovisual Production 

Specialist. Id. at 34. This position was ranked at the GS09 level, but Ms. Strickland-Donald retained a GS-11 

level salary. Id. 

Frustrated by an inability to secure a reclassification, 

Ms. Strickland-Donald filed a complaint with the United 

States Office of Special Counsel (“OSC”), and, after exhausting OSC procedures, she appealed to the MSPB. Id.

at 49–52. Ms. Strickland-Donald alleged that she made 

protected disclosures while stationed in South Korea and

that the Army retaliated by not promoting her to the GS12 level. See id. at 34, 49–52. These protected disclosures 

included: 

(1) on March 2, 2011, [Ms. Strickland-Donald] 

emailed [Mr. Mitchell] stating that two employees 

complained to her that an email [Mr. Mitchell] 

had sent them used a “demeaning and intimidating” tone, and that she had personally experienced 

[Mr. Mitchell]’s “harsh and demeaning” communication style, which “created a hostile working environment” . . . ; (2) in March 2013, [Ms. 

Strickland-Donald] reported to the Inspector General [] that [Mr. Mitchell] had abused his authority by being abusive towards employees; (3) in 
4 STRICKLAND-DONALD v. DEP’T OF THE ARMY

November 2011, [Ms. Strickland-Donald] reported 

to [Mr. Mitchell], [Deputy Garrison Commander 

Mark Cox], and others, that the resource manager 

for Camp Humphreys was improperly diverting 

funds from VISC to the rest of Camp Humphreys[] 

. . . ; (4) sometime after November 2012, [Ms. 

Strickland-Donald] reported to her then first-line 

supervisor, the Security Operations Manager, and 

the Chief of Staff that two directorates [the Public 

Affairs Office and the VISC] were [“]illegally 

meshed[”]; and (5) in February 2013, [Ms. Strickland-Donald] reported to [Mr. Cox], [Mr. Johnson], 

and others, that Wi-Fi equipment was illegally installed on Government computers at Camp Humphreys. 

Id. at 34–35 (citations and footnotes omitted). Ms. Strickland-Donald contends that the Army should have promoted her “from October 2010 to present.” Id. at 34.

In an Initial Decision, the Administrative Judge 

(“AJ”) determined that Ms. Strickland-Donald “failed to 

prove her prima facie claim of whistleblower retaliation” 

and therefore denied her request for corrective action. Id.

at 8. Specifically, for events in 2010, the AJ concluded 

that “all critical [Army] decisions related to [her] efforts to 

be promoted occurred in 2010 and predated her whistleblowing; as such, her whistleblowing could not have been 

a contributing factor to the [Army]’s 2010 decisions.” Id. 

The AJ further found that, even if Ms. Strickland-Donald 

had proven the necessary elements to demonstrate retaliation, “the problem remains that there is still no record 

evidence that [Mr.] Mitchell ever changed his mind and 

obstructed a promotion for” Ms. Strickland-Donald—i.e., 

committed an adverse action. Id. at 14. For events that 

occurred after 2010, the AJ assumed the alleged disclosures were made and concluded that the “challenged 

events occurring after 2010” “were not concrete personnel 

actions that could form the basis of a whistleblower 
STRICKLAND-DONALD v. DEP’T OF THE ARMY 5

retaliation claim.” Id. at 8 (citations omitted). “[N]o 

concrete personnel action or other identifiable steps were 

taken, or not taken, related to [Ms. Strickland-Donald’s] 

promotion in 2011 and thereafter” and therefore “her 

disclosures were [not] a contributing factor in any [Army] 

actions related to not promoting her.” Id. at 21 (emphases 

and citation omitted). Ms. Strickland-Donald then filed a 

petition for review requesting that the MSPB reconsider 

the AJ’s Initial Decision. 

The MSPB may grant petitions for review when the 

claimant presents new or previously unavailable evidence, the AJ’s decision is inconsistent with required 

procedures, the AJ makes an error interpreting a law or 

regulation or erroneously applies the law to the facts of 

the case, or the AJ makes an erroneous finding of material fact. 5 C.F.R. § 1201.115(a)–(d) (2015). In its Final 

Decision, the MSPB affirmed the Initial Decision in all 

respects. Id. at 32, 40. The MSPB determined “the 

protected disclosures alleged in this appeal all occurred in 

March 2011 or thereafter. Thus, the [Army]’s failure to 

upgrade [Ms. Strickland-Donald]’s position and promote 

her beginning in December 2010, cannot have been due to 

those disclosures.” Id. at 39 (footnotes and citation omitted). Ms. Strickland-Donald timely filed an appeal to this 

court. We have jurisdiction under 28 U.S.C. § 1295(a)(9) 

(2012). 

DISCUSSION

I. Standard of Review and Legal Standard

This court affirms the MSPB’s decision unless, inter 

alia, it is “unsupported by substantial evidence.” 5 U.S.C. 

§ 7703(c)(3) (2012). “Substantial evidence is more than a 

mere scintilla” of evidence, Consol. Edison Co. of N.Y. v. 

N.L.R.B., 305 U.S. 197, 229 (1938), but “less than the 

weight of the evidence,” Consolo v. Fed. Mar. Comm’n, 

383 U.S. 607, 620 (1966) (citations omitted). 
6 STRICKLAND-DONALD v. DEP’T OF THE ARMY

II. Substantial Evidence Supports the MSPB’s Final 

Decision 

Certain Federal agencies, including the Army, are 

“prohibited from taking a personnel action against an 

employee for” making a disclosure protected by the WPA

(i.e., whistleblowing). Chambers v. Dep’t of Interior, 602 

F.3d 1370, 1375 (Fed. Cir. 2010) (citation omitted); see 

King v. Dep’t of Army, 602 F. App’x 812, 813 (Fed. Cir. 

2015) (unpublished) (reviewing whistleblower claim made 

against the Army). An employee, like Ms. StricklandDonald, may bring an IRA appeal to the MSPB alleging 

that a “personnel action” was taken in retaliation for 

making a protected disclosure. 5 U.S.C. § 1221(a). 

A petitioner bears the initial burden of demonstrating 

“by a preponderance of the evidence that the disclosure 

was ‘a contributing factor’ in the agency’s personnel 

action.” Kewley v. Dep’t of Health & Human Servs., 153 

F.3d 1357, 1361 (Fed. Cir. 1998). Specifically, the petitioner must demonstrate that (1) she made “a disclosure 

or [performed a] protected activity described under” 5 

U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), and (2) 

the disclosure “was a contributing factor in the personnel 

action which was taken or is to be taken against” the 

employee, which can be shown through circumstantial 

evidence. 5 U.S.C. § 1221(e)(1). If the petitioner satisfies 

this burden, then the relevant agency must “demonstrate[] by clear and convincing evidence that it would 

have taken the same personnel action in the absence of 

such disclosure.” Id. § 1221(e)(2).

Ms. Strickland-Donald argues that the Initial and Final Decisions “did not encompass all of the facts or evidence and [the MSPB] ignored all violations which should 

have been addressed” when reviewing her claims. Pet’r’s 

Br. 2 (citations omitted). We do not agree. In constructing the Initial and Final Decisions, the MSPB “has broad 

discretion to determine what the opinion should contain 
STRICKLAND-DONALD v. DEP’T OF THE ARMY 7

and in what detail.” Lowder v. Dep’t of Homeland Sec., 

504 F.3d 1378, 1383 (Fed. Cir. 2007). “The failure to 

discuss particular contentions in a case . . . does not mean 

that the tribunal did not consider them in reaching its 

decision.” Id. (citations omitted); see Vick v. Dep’t of 

Transp., 545 F. App’x 986, 991 (Fed. Cir. 2013) (unpublished) (“[T]his court presumes—absent specific evidence to the contrary—that the [MSPB] reviews all 

evidence presented unless [it] explicitly expresses otherwise.” (citation omitted)). The AJ identified record evidence that was relevant to Ms. Strickland-Donald’s 

appeal, within the relevant statutory framework, and 

properly considered this evidence in reaching the final 

determination. See Resp’t’s App’x 7–30. So too did the 

MSPB. Id. at 31–40. Neither the AJ nor the MSPB 

needed to do more. 

Ms. Strickland-Donald next contends the AJ erred in 

his credibility determinations and weighing testimony. 

Pet’r’s Br. 12–13, 24–30. This court has previously held 

that credibility determinations made by the MSPB are 

“virtually unreviewable.” Hambsch v. Dep’t of Treasury,

796 F.2d 430, 436 (Fed. Cir. 1986) (citations omitted); see 

Anderson v. City of Bessemer City, 470 U.S. 564, 575 

(1985) (“[W]hen a trial judge’s finding is based on his 

decision to credit the testimony of one of two or more 

witnesses, each of whom has told a coherent and facially 

plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can 

virtually never be clear error.” (citations omitted)). The 

AJ correctly identified and applied the applicable legal 

framework under which credibility determinations must 

be made. See Resp’t’s App’x 10–11. Ms. StricklandDonald does not identify, nor do we find, anything in the 

record to justify reconsidering the AJ’s determinations.

Ms. Strickland-Donald also argues the AJ and MSPB 

“erred by stating all [Army] decisions predate[] the Whistleblowing 2010 timeframe.” Pet’r’s Br. 13. She does not, 
8 STRICKLAND-DONALD v. DEP’T OF THE ARMY

however, identify record evidence in support of her argument, and such unsubstantiated claims cannot serve as a 

basis to establish MSPB error. See, e.g., Poett v. Merit 

Sys. Prot. Bd., 360 F.3d 1377, 1381 (Fed. Cir. 2004) (“unsubstantiated” assertions do not equate to evidence).

In any event, substantial evidence supports the AJ’s 

findings. See Resp’t’s App’x 13–20 (AJ’s analysis that Ms. 

Strickland-Donald’s disclosures were not a contributing 

factor in the Army’s actions in 2010 related to her position 

grading). In discussing the Army’s actions in 2010, the 

AJ determined “the only disclosures about [Mr.] Mitchell 

that I found [Ms. Strickland-Donald] exhausted at OSC 

were her March 2, 2011 email to [Mr.] Mitchell confronting him about some of his behavior and a disclosure to the 

Inspector General.”1 Id. at 14 (citation omitted); see id. at

39 n.11 (MSPB stating the AJ did not err in “consider[ing] 

the pre-March 2011 disclosures” and finding these disclosures were “not properly exhaust[ed]” with OSC). After 

reviewing the relevant evidence and testimony, the AJ 

found “preponderant evidence that in 2010[] [Mr.] Mitchell advocated for CPAC to either upgrade her position as a 

GS-12 or otherwise to declare that she was performing 

GS-12 duties, but that [Mr.] Mitchell was not successful 

in that effort.” Id. at 20; see id. at 16–20 (evidence and 

testimony considered by the AJ in reaching the conclusion 

that Mr. Mitchel did not waver in his support of the Army 

promoting Ms. Strickland-Donald); Id. at 37 (MSPB 

affirming the AJ’s determination). Thus, we find no err in 

the AJ’s and the MSPB’s determinations. 

Finally, Ms. Strickland-Donald argues that her 

“rights to due process under the Fifth [] and Fourteenth [] 

 

1 Absent a right to appeal directly to the MSPB, the 

WPA requires each petitioner to exhaust her administrative remedies with the OSC before appealing to the 

MSPB. 5 U.S.C. § 1214(a)(3). 
STRICKLAND-DONALD v. DEP’T OF THE ARMY 9

Amendments were violated.” Pet’r’s Br. 4. However, Ms. 

Strickland-Donald does not identify the particular actor(s)

and action(s) that caused the alleged violations. Without 

more, we find her arguments waived. See SmithKline 

Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. 

Cir. 2006) (holding that “‘[w]hen a party includes no 

developed argumentation on a point . . . we treat the 

argument as waived’” (quoting Anderson v. City of Bos., 

375 F.3d 71, 91 (1st Cir. 2004))). 

CONCLUSION 

We have considered Ms. Strickland-Donald’s remaining arguments and find them unpersuasive. Accordingly, 

the Final Decision of the Merit Systems Protection Board 

is 

AFFIRMED

COSTS

Each party shall bear its own costs.