UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

THELMA J. MCGADDYE,

Appellant,

v.
DEPARTMENT OF THE AR MY,

Agency. DOCKET NUMBER DA

- 1221

- 17

- 0311

- W

- 1

DATE: March 8, 2023



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shaun Yancey , Esquire, Atlanta, Georgia, for the appellant.

Blaine Markuson , Esquire, Fort McCoy, Wisconsin, 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 dismissed her individual right of action (IRA) appeal for lack of jurisdiction

. On petition for review, the appellant challenges the administrative judge’s jurisdictional determination. Generall y, we grant petitions such as this one only
in the followin g circumstances: the initial decision contains erroneous findings

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 material fact; the initial decision is based on an erroneous interpretation of statute or regulation 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 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. 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. 2 5 C.F.R. § 1201.113 (b).

2 Regarding the administrative judge’s finding that the appellant failed to exhaust with the Office of Special Counsel (OSC) her claim that the agency removed her in reprisal for her claim of sexual harassment, we discern no error in the administrative judge’s finding. In an IRA appeal, the Board may consider only matters that the appellant first raised before OSC. Mason v. Department of Homeland Security
, 116 M.S.P.R. 135 , ¶ 8 (2011). The purpose of the requirement that an appellant exhaust her remedies with OSC prior to filing an IRA appeal with the Board is to give OSC “the o pportunity to take corrective action before involving the Board in the case.” Ward v. Merit Systems Protection Board
, 981 F.2d 521 , 526 (Fed. Ci r. 1992). The Whistleblower Protection Enhancement Act provides that, if OSC finds that there is a substantial likelihood that the information it received discloses a violation of the Act, it “shall transmit the information to the head of the agency invol ved for investigation and report.” Id. (making this finding based on the same language in the prior Whistleblower Protection Act); see 5 U.S.C. § 1213 (b), (c). These inquiries by OSC and their tr ansmittals to agencies for remedial action are a major component of OSC’s work. Ward
, 981 F.2d at 526

. To serve exhaustion’s intended purpose, the appellant must articulate to OSC the basis of h er request for corrective action “with reasonable clarity and precision,” giving OSC a sufficient basis to pursue an investigation that might lead to corrective action. Ellison v. Merit Systems Protection Board
, 7 F.3d 1031 , 1037 (Fed. Cir. 1993); Ward , 981 F.2d at 526. An appellant may demonstrate exhaustion through h er initial OSC complaint, evidence that s he amended h er original complaint, includ ing but not limited to OSC’s preliminary determination letter and other letters from OSC referencing the amended allegations. Mason , 116 M.S.P.R. 135 , ¶ 8. To establish Board jurisdiction, the appellant must prove exhaustion with OSC by preponderant evidence, not just present nonfrivolous allegations of exhaustion. 5 C.F.R. § 1201.57 (c)(1). Further, we discern no error in the administrative judge’s finding that3

NOTICE OF APPEAL RIG HTS 3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of 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 ha ve 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

the Board lacks jurisdiction over the appellant’s claim that the agency retaliated against her for having filed an equal employment opportunity (EEO) complai nt in which she raised allegations of sexual harassment and retaliation for prior EEO activity. The Board lacks jurisdiction over such claims in the context of an IRA appeal because there is no indication that the substance of the complaint concerned reme dying a violation of whistleblower retaliation under 5 U.S.C. § 2302 (b)(8)
, and thus it does not constitute a nonfrivolous allegation of protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i). Young v. Merit Systems Protection Board
, 961 F.3d 1323 , 1329 (Fed. Cir. 2020).

3 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.4

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 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.

(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 Fe deral 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.

____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before5

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
disc rimination 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.uscou rts.gov/Court_Locator/CourtWebsites.aspx

. 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 requi ring 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. 205076

(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2 012 . 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 competent jurisdiction. 4 The 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 t he 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.

4 The orig inal 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, perman ently 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. 1510.7

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. Conta ct 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