UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

PATTY S. HANUSCHIK,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

SF-1221-16-0236-W-1

DATE: June 15, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Patty S. Hanuschik, Pittsburgh, Pennsylvania, pro se.

Paul B. Taylor, APO, AP, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

denied her request for corrective action in this individual right of action (IRA) 

appeal. Generally, we grant petitions such as this one only in the following 

circumstances: the initial decision contains erroneous findings of mat erial fact; 

the initial decision is based on an erroneous interpretation of statute or regulation 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 dec ision 

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. 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. Except as expressly MODIFIED to

reflect the proper analysis for determining when allegations of a hostile work 

environment constitute a covered personnel action under 5 U.S.C. 

§ 2302(a)(2)(A), we AFFIRM the initial decision.2

We waive the filing deadline and accept the appellant’s untimely filed petition for 

review for good cause shown.

¶2 The appellant’s petition for review is untimely filed by approximately 

21 minutes. Petition for Review (PFR) File, Tabs 12-13. The Board will waive 

its filing deadline only upon a showing of good cause for the delay in filing. 

Wiggins v. Department of the Air Force, 113 M.S.P.R. 443, ¶ 8 (2010); 5 C.F.R. 

§ 1201.114(f). To establish good cause for an untimely filing, a party must show 

that she exercised due diligence or ordinary prudence under the circumstances of 

the case. Wiggins, 113 M.S.P.R. 443, ¶ 8. In making a good cause determination, 

the Board will consider the length of the delay, the reasonableness of the 

appellant’s excuse and her showing of due diligence, whether she is proceeding 

pro se, and whether she has presented evidence of the existence of circumstances 

 

2 During the pendency of this appeal, on December 12, 2017, Congress enacted the 

National Defense Authorization Act for Fiscal Year 2018 (NDAA), Pub. L. No. 115-91, 

131 Stat. 1283. Section 1097 of the NDAA amended various provisions of Title 5 of 

the U.S. Code. Our decision in this appeal would be the same under both pre- and 

post-NDAA law.
3

beyond her control that affected her ability to comply with the time limits or of 

unavoidable casualty or misfortune that similarly shows a causal relationship to 

her inability to timely file her petition. Id. 

¶3 Here, the appellant submitted her petition for review through e -Appeal 

Online at 12:21 a.m. on April 25, 2017—approximately 21 minutes past the 

April 24, 2017 filing deadline. PFR File, Tabs 12-13. She stated, under the 

penalty of perjury, that she tried to electronically file her petition for review 

before midnight on the due date but that “e-appeal kept failing.” PFR File, 

Tab 13 at 4. Given the particular circumstances of this case, we find good cause 

for the pro se appellant’s minimal filing delay. See Wiggins, 113 M.S.P.R. 443, 

¶ 9 (finding good cause when the pro se appellant created his petition for review 

in e-Appeal Online before the deadline but did not complete the electronic 

submission until 4 minutes after the filing deadline); Social Security 

Administration v. Price, 94 M.S.P.R. 337, ¶ 7 (2003) (finding good cause when 

agency counsel began sending the petition via facsimile on the due date but, due 

to technical problems, failed to complete the submission until 34 minutes past the 

filing deadline). In light of our finding that the appellant has established good 

cause for her untimely filing, and because the agency has not alleged that it was 

prejudiced by the 21-minute filing delay, we find that waiver of the filing 

deadline is appropriate. See Wiggins, 113 M.S.P.R. 443, ¶ 9.

The initial decision is modified to reflect the proper analysis for determining 

when allegations of a hostile work environment constitute a covered personnel 

action under 5 U.S.C. § 2302(a)(2)(A). 

¶4 Under both the Whistleblower Protection Enhancement Act (WPEA) and its 

predecessor, the Whistleblower Protection Act (WPA), a “personnel action” is 

defined to include, among other enumerated actions, “any other significant 
4

change in duties, responsibilities, or working conditions.” 3 5 U.S.C. 

§ 2302(a)(2)(A)(xii). In Savage v. Department of the Army, 122 M.S.P.R. 612, 

¶ 23 (2015), overruled in part by Pridgen v. Office of Management and Budget,

2022 MSPB 31, ¶¶ 23-25., the Board stated that a hostile work environment itself 

may constitute a covered personnel action under the WPA. In Skarada v. 

Department of Veterans Affairs, 2022 MSPB 17, ¶ 16, however, the Board 

clarified that, although the term “hostile work environment” has a particular 

meaning in other contexts, allegations of a hostile work environment may 

establish a personnel action in an IRA appeal only if they meet the statutory 

criteria under 5 U.S.C. § 2302(a)(2)(A), i.e., constitute a significant change in 

duties, responsibilities, or working conditions. Thus, although the “significant 

change” personnel action should be interpreted broadly to include harassment and 

discrimination that could have a chilling effect on whistleblowing or otherwise 

undermine the merit system, only agency actions that, individually or 

collectively, have practical and significant effects on the overall nature and 

quality of an employee’s working conditions, duties, or responsibilities will be 

found to constitute a personnel action covered by section 2302(a)(2)(A)(xii). 

Skarada, 2022 MSPB 17, ¶ 16. 

¶5 In the initial decision, the administrative judge, who did not have the 

benefit of the Board’s decision in Skarada, relied, in part, on case law relevant to 

establishing a hostile work environment under Title VII. Initial Appeal File 

(IAF), Tab 69, Initial Decision (ID) at 21-24 (citing Faragher v. City of Boca 

Raton, 524 U.S. 775, 787-88 (1998), and Gregory v. Department of the Army, 

114 M.S.P.R. 607, ¶¶ 25, 31 (2010)). In light of Skarada, however, reliance on 

Title VII standards to determine whether agency actions amount to a personnel 

action that may be the subject of an IRA appeal is incorrect. See Skarada, 

 

3

The relevant events occurred after the December 27, 2012 effective date of the WPEA. 

Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476. Therefore, we have applied the 

WPEA to this appeal. 
5

2022 MSPB 17, ¶ 16. Accordingly, we modify the administrative judge’s 

analysis of the appellant’s hostile work environment claim consistent with this 

section. 

¶6 The appellant alleged below that the agency subjected her to a hostile work 

environment when management took the following actions against her: counseled 

her five times within several months; “ostracized and demeaned [her] in front of 

her co-workers”; ignored her requests for assistance and emails; yelled at her in 

front of others; removed her “access to [information technology] tools that she 

needed to adequately perform her duties”; told her in front of coworkers that her 

assignment would not be extended; and told her to register for the Priority 

Placement Program even though she still had several months remaining in her 

overseas tour.4IAF, Tab 54 at 75-77. In her equal employment opportunity 

complaint and her responses to the agency’s interrogatories, the appellant further 

alleged that the agency subjected her to a hostile work environment when, among 

other related allegations, management officials undermined her relationships with 

her subordinates, ignored abusive treatment of the appellant by her coworkers, 

and “assault[ed]” her. IAF, Tab 13 at 16-71, Tab 31 at 13-31. The administrative 

judge found that, while the appellant may have personally felt humiliated or 

threatened by the agency’s actions, she failed to present evidence regarding the 

kind of pervasive, objectionable behavior that could objectively be considered a 

change in working conditions sufficient to constitute a hostile work environment. 

ID at 21-24.

 

4 As part of her hostile work environment claim, the appellant also alleged that the 

agency threatened to remove her, lowered her performance evaluations, denied her 

request to extend her overseas tour, and reassigned her to a “doomed to fail” position. 

IAF, Tab 54 at 75-76. Because these actions could constitute personnel actions or 

threatened personnel actions under 5 U.S.C. § 2302(a)(2)(A)(iii), (iv), and (viii), we do 

not consider them as part of the appellant’s claim that the agency subjected her to “any 

other significant change in duties, responsibilities, or working conditions” under 

section 2302(a)(2)(A)(xii). 
6

¶7 Considering the appellant’s allegations in light of Skarada, we agree with 

the administrative judge’s determination that they do not establish a covered 

personnel action. Regarding the appellant’s allegations that agency officials 

yelled at her, humiliated her, mocked her, demeaned her, treated her in a 

threatening manner, assaulted her, ignored abusive treatment directed at her, took 

away tools necessary to complete her duties, and embarrassed or undermined her 

in front of coworkers and subordinates, we find that she failed to provide 

corroborating evidence and that her mere allegations are insufficient to establish 

by preponderant evidence that the agency’s actions constituted harassment to such 

a degree that her working conditions were significantly and practically impacted. 

See Skarada, 2022 MSPB 17, ¶ 23 (stating that, at the merits phase of an IRA 

appeal, the appellant must provide sufficient information and evidence to allow 

the Board to determine whether the agency’s alleged action or actions were 

“significant”). In addition, the appellant has not shown that the agency’s 

nondisciplinary counseling sessions, alleged deficiencies in responding to her

requests and emails, and instruction to register for the Priority Placement 

Program so that she would be eligible to be placed at the end of her overseas tour 

had practical and significant effects on the overall nature and quality of her 

working conditions. Id., ¶ 29 (explaining that, in considering whether allegations 

of a hostile working environment establish a covered personnel action, the Board 

must consider whether the appellant has shown, by preponderant evidence, that 

the agency’s actions, considered individually and collectively, had practical and 

significant effects on the overall nature and quality of her working conditions, 

duties, or responsibilities).

¶8 In light of the foregoing, we affirm, as modified to clarify the applicable 

legal analysis and to supplement the factual findings, supra ¶ 7, the 

administrative judge’s determination that the appellant’s allegations regarding 

hostile work environment do not establish a covered personnel action.
7

The appellant’s arguments on review provide no basis to disturb the initial 

decision. 

¶9 On review, the appellant argues that her attorney representatives violated 

their “oath of office” to “protect” her, prevented her from providing unidentified 

evidence in her appeal, and were unprepared, forgetful, and unresponsive to her 

emails and requests. PFR File, Tab 13 at 42, 44-45. It is well settled, however, 

that the presence of purportedly inadequate counsel does not constitute a ground 

for reversal because the appellant is held responsible for the actions or inactions

of her counsel. Sparks v. Department of the Interior, 62 M.S.P.R. 369, 371 

(1994); Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981). 

Therefore, we find that the appellant’s allegations, even if true, provide no basis 

to disturb the initial decision.

¶10 The appellant further appears to argue that the administrative judge 

improperly denied her the hearing she wanted. PFR File, Tab 13 at 40. The 

record reflects that the appellant, through counsel, withdrew her request for a 

hearing and asked instead that the matter be decided on the basis of the written 

record. IAF, Tab 48. The appellant reasoned that, given the complex legal and 

factual issues and the voluminous record, written submissions “would allow the 

parties to focus on the issues most relevant to the instant matter and succinctly 

outline the law relevant to the underlying appeal and apply it to the facts 

attendant to this appeal.” Id. at 4-5. After notifying the appellant of the 

alternative options available to her, including the right to a postponement of the 

hearing or a dismissal of the appeal without prejudice to timely refiling, the 

administrative judge granted her request to cancel the hearing and issued a 

decision based on the parties’ written submissions. IAF, Tabs 50, 52. We find 

that the appellant’s motion to withdraw her hearing request was clear, 

unequivocal, decisive, and informed. The administrative judge, therefore,

properly granted her request after notifying her of the options available to her. 

See Conant v. Office of Personnel Management, 79 M.S.P.R. 148, 150-51 (1998).
8

¶11 The appellant also argues that the administrative judge was biased because 

she “favored” the agency and was “overly friendly with Agency counsel while 

becoming argumentative with [the appellant’s] counsel.” PFR File, Tab 13 at 42, 

45. In making a claim of bias, an appellant must overcome the presumption of 

honesty and integrity on the part of the administrative judge. Protopapa v. 

Department of Transportation, 14 M.S.P.R. 455, 459 (1983). The appellant’s 

conclusory allegations here are insufficient to overcome the presumption of 

honesty and integrity and therefore do not establish bias on the part of the 

administrative judge. Id.

¶12 Finally, the appellant raises a number of other arguments on review 

generally challenging the administrative judge’s findings and weighing of the 

evidence and alleging that the agency mistreated her in a variety of ways 

unrelated to the accepted issues in this IRA appeal. PFR File, Tab 13 at 41-46. 

We have considered these arguments but find that they provide no basis to disturb 

the administrative judge’s well-reasoned findings. See, e.g., Crosby v. U.S. 

Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the 

administrative judge’s findings when she considered the evidence as a whole, 

drew appropriate inferences, and made reasoned conclusions on issues of 

credibility); Broughton v. Department of Health and Human Services, 

33 M.S.P.R. 357, 359 (1987) (same).

¶13 Accordingly, we affirm the initial decision except as modified herein.

NOTICE OF APPEAL RIGHTS5

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 may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

 

5

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
9

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation and 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

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 particu lar 
10

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, 10, and 11. 

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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 

requirement of prepayment of fees, costs, or other security. See 42 U.S.C. 

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 
11

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 
12

competent jurisdiction.6The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

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, 10, and 11. 

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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

 

6

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
13

Contact information for the 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.

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board