UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

TONEISHA M. BASIL,

Appellant,

v

. DEPARTMENT OF THE NA VY,

Agency

. DOCKET NUMBER DC

- 1221

- 21

- 0633

- W

- 1

DATE: March 23, 2023



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Toneisha M. Basil , Washington, D.C., pro se

. Jacob Smith , Washington, D.C., for the agency

.

BEFORE Cathy A . Harris , Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member 2

FINAL ORDER ¶1 The appellant has f iled a petition for review of the initial decision,
which dismissed her individual right of action (IRA) appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 Member Leavitt’s name is included in decisions on which the three

- member Board completed the voting process prior to his March 1, 2023 departure.2

circumstances: 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 of the law to the facts of the case; the administrative ju dge’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 ar gument 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. § 1201.11 5 ). 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 MODIFIE D regarding the basis for concluding the Board lacks jurisdiction over the appeal
, we AFFIRM the in itial decision.

BACKGROUND ¶2 T he appellant is employed as a GS

- 9 Go vernment Information Specialist with the agency ’s Security Programs and Information Manage ment Branch within its Marine Corps’ Freedom of Information Act (FOIA) and Privacy Programs . Initial Appeal F ile (IAF), Tab 4 at 94

. According to the appellant, i n September and October 2020, she questi oned her first

- level supervisor, who was
the Freedom of Information Act/Privacy Act (FOIA/PA) Programs Manager, as well as other agency officials, about whether FOIA exemptions were being misapplied. Id

. at 5

- 11, 22, 27

- 28, 97

- 104 . Around October 2020, the appellant also allegedly disclosed that her first

- level supervisor was harassing her and acting dismissive ly toward her. Id

. at 95, 105

- 09, 213; Petition for Review (PFR) File, Tab 1 at 26

. 3 Lastly, she allegedly disclosed that “ improprieties were

3 On review, the appellant submits a copy of the preliminary determination letter from the Office of Special Counsel (OSC) that was not part of the record below. PFR File,3

occurring regarding lunch breaks and related break policy interpretations. ” PFR File, Tab 1 at 26. ¶3 According to the appellant, a s a result of these disclosures, she was subjected to re tali ation, including an October 20, 2020 letter of caution, a n October 2020 security investigation, a November 23, 2020 letter of reprimand, a January 2021 revocation of her swipe access to enter her work space, and a
hostile wor k environment. IAF, Tab 4 at 11, 15, 19

- 20 , 52, 94

- 96, 149

- 51,
198

- 203 ; PFR File, Tab 1 at 26

- 27

. ¶4 The appellant filed a whistleblower reprisal complaint with the Office of Special Counsel (OSC). IAF, Tab 4 at 249. OSC issued her a final determination
letter in July 2021, closing out its investigation into her complaint. Id

. at 249

- 50. The appellant , acting pro se, filed this IRA appeal with the Board. IAF, Tab 1

at 1, 4 . The administrative judge issued an order setting forth the appellant’s burden to establish jurisdiction over her IRA appeal , to which the appellant responded . IAF, Tab 3 , Tab 4 a t 4

- 24. ¶5 Following the appellant’s jurisdictional response, t he administrative judge issued an initial decision, dismissing the appeal for l ack of jurisdiction. IAF,
Tab 5, Initial Deci sion (ID) at 1, 10

. She did not make findings regarding the appellan t’s alleged disclosures. ID at 7 n.2, 10 n.3. Instead, she found that the Board lacks jurisdiction over the alleged personnel actions. She determined that the appellant exhausted her administrative remedies before OSC concerning the letter of caution, security investigation, and letter of reprimand . ID at 6

- 7. She also implicitly found that the appellant exhausted her OSC remedy regarding an

Tab 1 at 26

- 28. Generally, the Board will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence. Avansino v. U.S. Postal Service
, 3 M.S.P.R. 211 , 214 (1980). Even though this document was available before the close of record, the issue of jurisdiction is always before the Board and may be raised at any time. S toglin v. Department of the Air Force , 123 M.S.P.R. 163 , ¶ 7 (2015), aff’d per curiam , 640 F. App’x 864 (Fed. Cir. 2016) . Thus, we will consider the OSC letter here to the extent it impacts the Board’s jurisdiction over t his appeal.4

alleged hostile work environment. ID at 7 & n.2. However, she found that the
letter of cau tion and security inquiry did not amount to personnel actions over which the Board could exercise IRA jurisdiction. ID at 8

- 10. S h e also concluded
that the Board lacks jurisdiction o ver the appellant’s letter of reprimand because
she elected to file a gr ievance before filing an IRA appeal. ID at 7

- 8, 10. As to the alleged hostile work environment, the administrative judge reasoned that the appellant’ s allegations were too conclusory, vague, or unsupported to amount to a nonfrivolous allegation of a pers onnel action

. ID at 7 n.2. ¶6 The appellant has filed a petition for review of the initial decision. PFR File, Tab 1. 4 The agency has responded to the appell ant’s petition. PFR File,
Tab 3

. The appellant has replied to the agency’s response. PFR File, Tab 4.

DISCUSSION OF ARGUME NTS ON REVIEW ¶7 To establish jurisdiction in a typical IRA appeal, an appellant must show by preponderant evidence that she exhausted her remedies before OSC and make nonfrivolous allegations of the following: (1) she made a disclosure described
under 5 U.S.C. § 2302 (b)(8) or engaged in a protected activity described under
5 U.S.C. § 2302 (b)(9)(A)(i), (B), ( C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a). Corthell v. Department of Homeland Security
, 123 M.S.P.R. 417 , ¶ 8 (2016). A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4 (s). The U.S. Court of Appeals for the Federal Circuit has found that, in

4 On review, the appellant also resubmitted documentation that was already part of the record below. E.g

. , compare IAF, Tab 4 at 249

- 50 , with PFR File, Tab 1 at 29

- 30 ; compare IAF, Tab 3 , with PFR File, Tab 1 at 31

- 39

. Evidence that is already part of the record is not new evidence that warrants granting review. Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980); see 5 C.F.R. § 1201.115 (d) (identifying new and material evidence as a basis on which the Board may, in appropriate circumstances, grant review). In any event, we have considered all of the evidence in the record that relates to the Board’s jurisdiction, regardless of when it was submitted. See Stoglin
, 123 M.S.P.R. 163 , ¶ 7.5

the context of an IRA appeal, a nonfrivolous allegation is an a llegation of “sufficient factual matter, accepted as true, to state a claim that is plausible on its
face.” Hessami v. Merit Systems Protection Board
, 979 F. 3d 1362 , 1364, 1369 (Fed. Cir. 2020). ¶8 The parties do not dispute the administrative judge’s findings regarding
exhaustion
, and we discern no basis to disturb them here. 5 ID at 6

- 7 & n. 2; IAF,
Tab 4 at 249

- 50. We agree with the administrative judge’s conclusion that the appellant failed to esta blish Board jurisdiction

. However, we disagree with her finding that the appellant ’s administrative grievance of her letter of reprimand divested the Board of jurisdiction over that person nel action

. Instead, as discussed below, we conclude that the Board lacks jurisdiction over the instant appeal because the appellant failed to nonfrivolously a llege that she made a protected disclosure.
The administrative judge erred in finding the app ellant failed to nonfrivolously alleg e that she suffered a personnel action. ¶9 Although not directly addressed by the administrative judge, w e find that the appellant nonfrivolously alleged that her letter of reprimand is a personnel
action. IAF, Tab 4 at 149

- 51; s ee Horton v. Department of Veterans Affairs , 106 M.S.P.R. 234 , ¶ 18 (2007) (stating that a letter of r eprimand is a personnel action). The appellant’s supervisor indicated that the letter was considered “a first offense should subsequent discipline need to be imposed” and it would remain in the appellant’s Official Personnel File for 2 year s. 6 IAF, Tab 4

at 150

- 51. T he administrative judge determined that the Board lacks jurisdiction over the reprimand because the appellant elected to grieve it . ID at 7

- 8. The appellant disagrees, arguing that her grievance was not filed pursuant to a

5 To the extent the appellant argues on review that the administrative judge imp roperly found she failed to exhaust her OSC remedy, she is mistaken. PFR File, Tab 1 at 4

- 6.

6 The 2

- year period was later reduced to 6 months during the administrative grievance process. IAF, Tab 4 at 204

- 06.6

negotiated grievance process an d
, therefore, it did not preclude Board jurisdiction

. PFR File, Tab 1 at 6

- 7. We agree with the appellant

. ¶10 Under 5 U.S.C. § 7121 (g) , an individual who is covered by a collective bargaining agreement and who believes that s he has suffered reprisal for making protected disclosures may elect not more than one of the following three
remedies: (1) a direct appeal to the Board under 5 U.S.C. § 7701 ; (2) a grievance filed pursuant to the provisions of the negotia ted grievance procedure; or (3) the procedures for seeking corrective action from OSC followed by an IRA appeal

. Sherman v

. Department of Homeland Security
, 122 M.S.P.R. 644 , ¶ 12 (2015) ; Shannon v. Department of Homeland Security
, 100 M.S.P.R. 629 , ¶ 15 (2005)

. Whichever remedy is sought first is deemed an election of that procedure and precludes pursuing the matter in either of the other two fora. Sherman
, 122 M.S.P.R. 644 , ¶ 12

. ¶11 In the instant appeal, t he appellant sought to “ chall enge the OSC’s
determ ination dated

. . . July 31, 2021.” IAF, Tab 1 at 4. Thus, she did not file a direct appeal with the Board. In any event, she has not alleged she suffered an appealable action that might be the su bject of a Board appeal under 5 U.S.C. § 7701

. Thus, even if she had filed a direct appeal, it would not be a binding election to pursue that option. See Shannon
, 100 M.S.P.R. 629 , ¶ 17 (determining that if an appellant elects to directly appeal a matter to the Board over which it
does not have appellate jurisdiction, such an appeal is not a binding election of remedy). The remaining election options are filing either a grievance or an OS C complaint followed by a Board appeal

. ¶12 Here, the appellant filed an administrative grievance over her let ter of reprimand
, which was governed by Civilian Marine Corps Order 12771.3 , Civilian Marine Administrative Grievance System (MCO 12771.3) (Mar. 28 ,7

2013)

. 7 IAF, Tab 4 at 149

- 51, 204

. This internal grievance process does not cover matters that can be raised through a negotiated grievance procedure

. MCO 12771.3 at 2. There is also no indication in the record that the appellant is covered by a c ollective bargaining agreement. Thus, by filing the administrative grievance , the appellant did not e lect a remedy pursuant to 5 U.S.C. § 7121 (g) that would preclude Board jurisdiction over this appeal. See Mason v. Department of Homeland Security
, 116 M.S.P.R. 135 , ¶ 3 n.1 (2011) (finding that the fact that the appellant filed grievances of personnel actions did not preclude Board IRA jurisdiction over those actions when the grievances were not filed pursuant to a collective bargaining agreement) ; Garrison v. Department of Defense , 101 M.S.P.R. 229 , ¶ 16 (2006) (same)

. Thus, we disagree with the administrative judge that the appellant’s grievance divests the Board of jurisdiction over the letter of reprimand. The appellant met her jurisdictio nal burden as to this personnel action

. ¶13 The appellant has also raised challenges to the administrative judge’ s findings that the appellant failed to nonfrivolously allege that she suffered personnel actions when she received a letter of caution and was subjected to an investigation

. PFR File, Tab 1 at 9

- 20 ; ID at 7 n.2 , 8

- 10. Further, she appears to

re

- raise her claim that her first

- level supervisor harassed her in retaliation for her disclosures. PFR File, Tab 1 at 10, 18

- 19. I n cases involving multiple alleged protected disclosures and multiple alleged per sonnel actions, w hen the appellant makes a nonfrivolous allegation that at least one alleged personnel action was taken in retaliation for at least one alleged protected disclosure, she establishes

7 Although the parties did not provide a copy of MCO 12771.3, we take administrative notice of its contents, which are available online at https://www.marines.mil/Portals/1/Publications/MCO%2012771.3.pdf

. 5 C.F.R. § 1201.64 (providing that an administrative judge may take official notice of matters of common knowledge or matters that can be verified ); see Hessami , 979 F.3d at 1369 n.5 (acknowledgin g that at the jurisdictional stage in an IRA appeal, the Board may consider matters subject to judicial notice) (citation omitted).8

the Board’s jurisdiction over her IRA appeal. Horton , 106 M.S.P.R. 234 , ¶ 14. Therefore, we find it unnecessary to address these other alleged personnel
actions

. Instead, as discussed be low, we find that the Board lacks jurisdiction
because the appellant failed to nonfrivolously allege that she made a protected disclosure

. The appellant failed to nonfrivolously allege that she made a protec ted disclosure regarding possible misapplication of FOIA exemptions

. ¶14 Because the administrative judge determined that the appellant did not suffer a personnel action, she did not analyze whether the appellant made nonfrivolous allegations of a protected disclosure. ID at 10 n.3. T heref ore, we address this issue here. ¶15 A protected disclosure is one that an appellant reasonably believes evidences any violation of any law, rule, or regu lation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specifi c danger to public health or safety. 5 U.S.C. § 2302 (b)(8); Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 5 & n.3 (2013) . The proper test for determining whether an employee had a reasonable belief that her disclosures we re protected
is whether a disinterested observer in her position with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions evidenced any o f the conditions set forth in 5 U.S.C. § 2302 (b)(8). Mudd
, 120 M.S.P.R. 365 , ¶ ¶ 5 , 8

. Any doubt or ambiguity as to
wh ether an appellant raised a nonfrivolous allegation of a reasonable belief should be resolved in favor of a finding that jurisdiction exists. Id
., ¶ 9.
C ommunications concerning policy decisions that lawfully exercise discretionary authority are not prot ected whistleblowing unless the employee reasonably believes that the disclosure evidences one of the categories of wrongdoing listed
in section 2302(b)(8)

. 5 U.S.C. § 2302 (a)(2)(D); Webb v. Department of the9

Interior , 122 M.S.P.R. 248 , ¶ 8 n.6 (2015); O’Donnell v. Merit Systems
Protection Board , 561 F. App’x 926 (Fed. Cir. 2014). 8 ¶16 The appellant alleges that she disclosed an error in which FOIA exemption the agency should invoke in withholding an agency climate survey that was the subject of a FOIA request. IAF, Tab 4 at 27. As background, FOIA requires the
disclosure of certain Government records and information unless they fall under one of nine exemption s. 5 U.S.C. § 552 (a)

- (b); Department of Justice Guide

to the FOIA (DOJ Gui de), Introduction at 1, 6 (Feb. 14, 2020), https://www.justice.gov/oip/page/file/1248371/download . The appellant disagreed with the agency’s use of two of those exemption s, commonly known as exemptions 4 and 5. Exemptio n 4 applies to “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”
5 U.S.C. § 552 (b)(4). FOIA exemption 5 generally applies , in relevant part, to

“ inter

- agency or intra

- agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency

. ” 5 U.S.C. § 552 (b)(5). ¶17 T he appellant’s duties included review ing and respond ing to FOIA/PA requests, including determining whether any exemptions applied to the information and records being requested. IAF, Tab 4 at 27

- 28, 85

- 87, 142. She alleged below that, o n September 16, Oc tober 21, and November 2, 2020, she
emailed her first

- level supervisor and othe r managers, questioning whether FOIA exemptions were being misapplied. IAF, Tab 4 at 6

- 11, 27

- 28 , 41

- 44, 97, 99

- 101

. She also exhausted, at a minimum, her September 16 and Nov ember 2, 2020

8 The Board may follow nonprecedential Federal Circuit decisions that it finds persuasive , as we do here. Dean v. Office of Personnel Management
, 115 M.S.P.R. 157 , ¶ 14 (2010).10

FOIA disclosures with OSC. 9 IAF, Tab 4 at 236, 238

- 39, 249 ; PFR File, Tab 1

at 26

. ¶18 The appellant’s colleagues and first

- level supervisor advised her that she should cite to exemption s 5 and 6, rather than to exemption 4, when explaining why the agency was not releasing the climate survey

. IAF, Tab 4 at 29

- 31. The appellant alleged she disclosed to her first

- level supervisor and other agency
officials that , in essence, exemption 4, which covers commercial information
, “had enough coverag e” to permit withholding the requested climate survey

. Id.

at 100. She also disagreed with her supervisor that exemption 5 applied to certain portions of the survey, reasoning that exemption 5 concerned “letters or
memoranda ” and therefore did not includ e findings, report s, or surveys such as the climate survey

. Id. at 28, 100. She has not alleged that she disclosed that the

agency wrongfully withheld or intended to withhold information it was required
to disclose under FOIA. Id. at 27

- 28 , 99

- 100. ¶19 The DOJ Guide makes clear that FOIA exemptions “describe specific categories of information that are protected from disclosure, and generally they are discretionary, not mandatory, in nature

. ” DOJ Guide
, Introduction at 6

. The language of FOIA is consist ent with this interpretation, as it provides that agencies “shall make available to the public” certain information but that this
mandate “does not apply” to information subje ct to an exemption

. 5 U.S .C. § 552 (a)

- (b) ; see Chrysler Corp. v. Brown , 441 U.S. 281 , 29 0

- 9 4 (1979) (finding that the “language, logic, and history” of FOIA does not require an agency to withhold information that could be the subject of an exemption)

. FOIA does not

9 Although the appellant has not provided evidence that she specifically raise d with OSC her October 21, 2020 disclosure, we find that by exhausting her September and November 2020 disclosures, she provided OSC with sufficient basis to pursue an investigation into her intervening alleged disclosure of the same wrongdoing. See Chamb ers v. Department of Homeland Security
, 2022 MSPB 8 , ¶ 10 (explaining that the substantive requirements of exhaustion are met when an appellant has provided OSC with sufficient basis to pursue an investigation) (citations omitted).11

require that an agency withhold information pursuant to an exemption

. Brown , 441 U.S. at 291

- 93. To establish jurisdiction over her FOIA disclosure, the appellant must nonfrivolously allege that she reasonably believed i t evidenced wrongdoing under 5 U.S.C. § 2302 (b)(8). 5 U.S.C. § 2302 (a )(2)(D)

. ¶20 T here is no indication in the record that the appellant is a lawyer. There are also several references in the record to the appellant being a “new hire” starting
in approximately August 2020 and reflecting that she was in the process of
learnin g how to respond to FOIA requests . IAF, Tab 4 at 22, 134, 150, 231

- 32. These factors favor a finding that the reasonable person in her position could believe that the misapplication of FOIA exemptions violated the statute

. See
Mudd
, 120 M.S.P.R. 365 , ¶ 9 (2013) (considering an appellant’s lack of expertise and experience in legal matters in finding that she made a nonfrivolous allegation that the agency violated various laws, rules, and regulations). However, the appellant indicated that
, upon starting in her new position
, she read the DOJ Guide for “roughly three weeks

. . . with a fine highlighter. ” IAF, Tab 4 at 7, 99,
236 . She then relied on the DOJ Guide both in her disclosures and in her pleadings as the basis for her belief that FOIA exemptions were being misapplied.
Id

. at 9 , 100

. Because the appellant both stated and demonstrated her familiarity
with the DOJ Guide, we find that she failed to nonfrivolously allege that a
reasonable person in her position c ould have believed th e agency violated the law by exercising its discretion to elect which exemptions to cite

. ¶21 Similarly, i n O’Donnell , the court concluded that a Federal employee
could not reasonably believe that his supervisor’ s deter mination that a landowner

was not eligible for G overnment assistance was a violation of the Cons ervation Reserve Program law

. O’Donnell , 561 F. App’x at 9 30. The court reasoned that
the law granted discretionary authority to the agency, and the appellant’s supervisor was in charge of exercising that discretion. Id. H ere, as in the case of
the law at issue in O’Donnell
, agencies g enerally have discretion to apply FOIA exemption s , provided they do not withhold information they are required to12

release under FOIA . Further, as the appellant acknowledged, her supervisor had
th e au thority to determine whether to exercise that discretion. IAF, Tab 4 at 8, 28, 94, 98. Therefore
, we find the appellant co uld not have reasonably believed that the agency’s choice to rely on what she personally viewed as the incorrect
FOIA exemption was a violation of law. ¶22 Lastly
, the appellant ’s claim that in making her disclosure she primarily sought clarification from her supervisor about how t he FOIA exemptions are applied further supports our finding that she did not reasonably believe that her
disclosure evidenced the misconduct listed in section 2302(b)(8)

. IAF, Tab 4

at 9 , 27

- 28 ; Webb
, 122 M.S.P.R. 248 , ¶ ¶ 11

- 12 (finding t hat an appellant’s emails to agency officials requesting clarification as to whether a proposed policy r a n af oul of agency regulations did not constitute a disclosure of a violation of law, rule, or regulation ). Thus, we find that the appellant failed to nonfriv o lously allege that her communications about the agency’s misapplication of FOIA exemptions were protected disclosures

. The appellant failed to nonfrivolously allege that she made a protec ted disclosure

o f harassment by her first

- level supervisor

. ¶23 On review, it is unclear whether the appellant re

- raises her October 2020
disclosure s of supervisory harassment. Ho wever, she attaches her October 20, 2020 letter of caution, which reflects that she accused her supervisor of “borderline harassment and intimidation” earlier that month. PFR File, Tab 1

at 42. Interpreting this pro se appellant’s petition for review in the light most favorable to her, we read her submission as re

- raising this alleged disclosure. See
Patterson v. U.S. Postal Service
, 71 M.S.P.R. 332 , 335 (1996) , aff’d per curiam
, 106 F. 3d 425 (Fed. Cir. 1997) (Table)

. Because the administrative judge did not

re ach the issue of whether this dis closure was protected, we do so here

. ¶24 The appellant alleged below that a round October 2020, she d isclosed that
her first

- level supervisor was harassing her by mistreating her, yelling at her
, and acting dismissive ly towar d her , which she claimed constituted an abuse of13

authority . IAF, Tab 4 at 95, 105

- 09, 213 , 225 , 249 ; PFR File, Tab 1 at 26. The
record reflects that in an October 1, 2020 email, the appellant told her fi r st

- level supervisor that she “ notice [d] quite a few perceived eye

- rolls from [her]” and “felt that [ the appellant’s ] voice was not being heard, but dis missed, ” when giving her opinion during a meeting with her first

- level supervisor the previous day

. IAF, Tab 4 at 105, 108. On or about Octobe r 8, 2020 , when directed by her supervisor to remove a personal quote from her official email signature block, the appellant emailed her supervisor that “this is not a dictatorship” and that she
considered the incident “borderline harassment and intimidation.” Id

. at 95

. Then
, in a November 5, 2020 email, the appellant accused her supervisor of “ignor [ing] [ her ] feelings” and “ dismiss [ing] ” her “voice and concerns” b y requiring the presence of the appellant’s team lead at a meeting to review the appellant’s cases, over the appellant’s objections

. Id

. at 119 , 218 . She also
discussed this disclosure and that she “ objected to how [her] ‘voice’ and concerns were being p ublicly dismissed and silenced ” i n her response to OSC’s preliminary determination. Id

. at 218. The appellant further alleged to OSC th a t she had “ raised concerns before of how [he r first

- level supervisor]

. . . has
abused and mistreated [her]” and “ yelled and interrupted [her]

. . . on numerous occasions. ” Id

. at 213. The appellant appears to have exhausted this disclosure
with OSC

. ¶25 To constitute a nonfrivolous allegation, the allegation must be, as relevant here, more than conclusory. 5 C.F.R. § 1201.4 (s)(1). A nonconclusory allegation of wrongdoing is one that set s forth specific facts that describe a facially plausible series of events

. See Hessami , 979 F. 3d at 1369

- 70 (explaining that the petitioner met the nonfrivolous pleading standard because, as relevant here, she “set forth specific fact s supporting [her] beliefs of wrongdoing” ) ; Linder v. Department of Justice , 12 2 M.S.P.R. 14 , ¶ 14 (2014) (explaining that a disclosure of wrongdoing cannot be vague, but rather must be specific and detailed)

. To the extent that the appellant generally accu ses her supervisor of ignorin g her concerns14

and yelling at, interrupting, harassing, intimidating, or dismissing her, these allegations fail to provide any specifics from which we can conclude a reasonable person would believe the ac tions involved constitu te wrongdoing

. ¶26 The appellant ’s a ssertion that she objected to her team lead being included in a case review meeting on one occasion is more specific

. IAF, Tab 4 at 119

. Supervisory harassment may amount to an abuse of authority. Ayers v. Department of the Army
, 123 M.S.P.R. 11 , ¶ 14 (2015). However, a reasonable

pers on in the appellant’s position , an employee admittedly learning her new duties from, among others, her team lead, could not believe that having her team
lead attend a case review meeting was a n abuse of discretion, gross mismanagement, or any other wrongdoing within the scope of whistleblower reprisal statutes

. T he s tatutory protection for whistleblowers is not a weapon in

ar guments over policy or a shield for insubordinate conduct

. Webb
, 122 M.S.P .R. 248 , ¶ 8. The Board has found an employee’s disagreement over job

- related issues is insufficient to amount to a protected disclosure. Francis v. Department of the Air Force , 120 M.S.P.R. 138 , ¶ 12 (2013); see Mc Corcle v. Department of Agriculture
, 98 M.S.P.R. 363 , ¶ 2 2 (2005) (finding that an appellant’s disclosure of his disagreement with the agency’s decision to assign him clerical and other duties, allegedly wasting his ti me and expertise, failed to

amount to a nonfrivolous allegation of gross mismanagement ). Thus, we find that the appellant failed to nonfrivolously allege that she reasonably believed she

was disclosing harassment th at evidenced wrongdoing under 5 U.S.C. § 2302 (b)(8)

. The appellant failed to nonfrivolously allege that her remaining disclosure regarding lunch and other breaks was protected

. ¶27 According to OSC’s preliminary determination l etter, the appellant also alleged in her OSC complaint that she disclosed that “ improprieties were occurring regarding lunch breaks and related break policy interpretations. ” PFR File, Tab 1 at 26 ; IAF, Tab 4 at 233

. It is not entirely clear if the appel lant15

sought to raise this alleged disclosure below. However, we address it on review because it is contained in OSC’s preliminary determination letter, which she submitted for the first time on review. PFR File, Tab 1 at 26

. ¶28 This alleged disclosure appears to have arisen out of an instruction from the appellant’s supervisor to the appellant in the October 20, 2020 letter of caution that the appellant “conform [her] emails and correspondence to standard language for such communications

. ” PFR File, T ab 1 at 26; IAF, Tab 4 at 94,
233. As examples
, the appellant’s supervisor noted that the appellant had resisted a prior instruction to cease using the word “humbly” in her correspondence. Id. at 95. The letter also reflected that the appellant had

resp onded to her supervisor instructing her to remove a personal quote from her signature block that “[s he] would remove it from some emails but not all
emails

. ” Id. ¶29 I n an October 21, 2020 email to the Head of the Security Programs and Information Managemen t Branch and another agency official
, the appellant
asserted that
, when it came to writing emails, she ha d a right to “express [her] thoughts

. . . [i]f it is not germane to the FOIA/PA office, or while [she wa s] on [her] lunch period
, . . . as [she] see [s] fit. ” IAF, Tab 4 at 99. Assuming we have correctly interpreted this alleged disclosure, it is apparent that the supervisor’s
instruction wa s directed at agency communications to “requesters [and] record
holders

. ” Id

. at 94

- 95. We discern no basis f or a reasonable person in the appellant’s position to believe that her supervisor was referring to personal
communications

. Further, we find that no reasonable person in the appellant’s position could reasonably believe that her supervisor’s instructions regarding the
ministerial details of official communications evidenced agency wrongdoing

. See Francis , 120 M.S.P.R. 138 , ¶ 12 ; Mc Corcle
, 98 M.S.P.R. 363 , ¶ 2 2

. ¶30 Because the appellant has failed to raise a n onfrivolous allegation that
she made a prote cted disclosure, it is unnecessary to determine whether she raised a nonfrivolous allegation that her disclosures were a contributing factor in a16

personnel action. See Schmittling v. Department of the Army
, 219 F. 3d 1332
, 1336

- 67 (Fed. Cir. 2000) (observing that the Board may find it lacks jurisdiction over an IRA appeal if any one of the jurisdictional prerequisites are not met )

. Therefore, we find that this IRA appea l must be dismissed for lack
of jurisdiction. 10

NOTICE OF APPEAL RIG HTS 11 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

re view of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking s uch review and the appropria te forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following

10 On review, the appellant makes a new disclosure regarding the misapplication of a FOIA exemption and alleges for the first time that, in retaliation for the instant Board appeal , her first

- level supervisor subjected her to another personnel action, i.e.
, a September 17, 2021 letter of caution. PFR File, Tab 1 at 20

- 23, 4 4

- 48 , 52

. However, these incidents occurred after OSC issued its July 31, 2021 close

- out letter. IAF, Tab 4 at 249

- 50. T he appellant has not allege d or submitted evidence that she has exhausted her administrative remedies with OSC with respect to these matters, a nd therefore she has not met her jurisdictional burden

. The appellant also appears to argue that the administrat ive judge was biased against her because she rushed to dismiss the appeal without addressing many arguments the appellant raised, she did not thoroughly examine the appellant’s evidence, and she insinuated that the appellant did not have permission to have a Bluetooth radio in her office. PFR File, Tab 1 at 4, 10, 22

- 23. The lack of permission for the Bluetooth radio was a concern in the alleg ed security investigation that the appellant alleged was a personnel action. IAF, Tab 4 at 52, 246

. There is a presumption of honesty and integrity on the part of administrative judges that can only be overcome by a substantial showing of personal bias, and the Board will not infer bias b ased on an administrative judge’ s case

- related rulings

. Vaughn v. Department of the Treasury
, 119 M.S.P.R. 605 , ¶ 18 (2013). W e find that the appellant’s arguments regarding the speed and thoroughness with which the administrative judge handled her claims, and any findings she made regarding the Bluetooth radio, fail to overcome th is presumption o f honesty and integrity.

11 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.17

summary of available appeal rights, the Merit Systems Protection Board does not provid e 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 decisi on, 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 dismis sal 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 mo re 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 ava ilable 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 11.18

If you are interested in sec uring 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 befor e 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 app lies 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 di sposition 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.

____ , 137 S. Ct. 1975 (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, colo r, 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/CourtWeb sites.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). Yo u must file any such request with the19

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
add ress 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 a ddressed 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 y ou 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 describe d 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. 12 The court of appeals must r eceive your

12 The ori ginal 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 on20

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 co urt 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.

July 7, 2018, perma nently 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 Circui t Review Act is retroactive to November 26, 2017. Pub. L. No. 115

- 195, 132 Stat. 1510.21

Con tact 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