UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2008 MSPB 65 

Docket No. DE-1221-07-0427-W-1 

Susan K. McDonnell, 

Appellant, 

v. 

Department of Agriculture, 

Agency. 

March 17, 2008 

Susan K. McDonnell, Albuquerque, New Mexico, pro se. 

Jack Neuman, Albuquerque, New Mexico, for the agency. 

BEFORE 

Neil A. G. McPhie, Chairman 

Mary M. Rose, Vice Chairman 

OPINION AND ORDER

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

October 30, 2007, that dismissed her individual right of action (IRA) appeal for 

lack of jurisdiction. For the reasons set forth below, we GRANT the petition, 

REVERSE the initial decision, and REMAND this appeal for further adjudication 

consistent with this Opinion and Order. 

BACKGROUND

¶2 The appellant is employed by the agency as a GS-13 Grants and 

Agreements (G&A) Specialist. Initial Appeal File (IAF), Tab 4, Subtab 4 at 42. 

In March 2007, she filed a whistleblower complaint with the Office of Special 
2

Counsel (OSC) in which she alleged that her supervisor, Acquisition Management 

Director Richard Salazar, violated various statutes and a regulation, and 

committed gross mismanagement, a gross waste of funds, and abuse of authority 

by improperly filling vacancies in the G&A department only with Hispanics with 

whom he was friendly, and by creating a hostile work environment for employees 

who were not in “his clique of friends.” Id. at 17-19, 22. She contended that, 

after she complained of Salazar’s actions to Salazar and Deputy Regional 

Forester Lucia Turner, Salazar retaliated against her by verbally reprimanding 

her, undermining her supervisory authority, and removing certain of her 

supervisory duties, which the appellant asserted constituted a reassignment, a 

constructive demotion, and a significant change in duties, responsibilities, or 

working conditions. Id. at 17-19, 22-23. In subsequent correspondence with 

OSC, the appellant alleged that Salazar had violated merit system principles, that 

she was only allowed limited travel, and that she was not given career-enhancing 

assignments in retaliation for her disclosures and because she was not Hispanic. 

Id. at 3-4. 

¶3 After OSC terminated its investigation of her complaint, the appellant filed 

the instant appeal. IAF, Tab 1; Tab 4, Subtab 4 at 1-2. Before the Board, the 

appellant added that she did not receive a performance award for fiscal year 2006 

and has not attended any training since 2002. IAF, Tab 4, Subtab 2 at 16. 

¶4 The administrative judge issued two show-cause orders setting forth the 

jurisdictional requirements for an IRA appeal and ordering the appellant to file a 

statement, accompanied by evidence, listing: (1) her alleged protected 

disclosures; (2) the dates she made the protected disclosures; (3) the individuals 

to whom the disclosures were made; (4) an explanation of why her belief in the 

truth of the disclosures was reasonable; (5) the actions the agency took, failed to 

take, or threatened to take or fail to take as a result of her disclosures; and (6) an 

explanation of why she believes the disclosures were contributing factors in the 
3

actions taken or not taken. IAF, Tabs 3, 10. While the appellant submitted a 

response to the first order, she did not respond to the second. IAF, Tabs 4, 5. 

¶5 Without holding the hearing the appellant requested, the administrative 

judge dismissed the appeal for lack of jurisdiction, finding that general 

allegations of unfair treatment and discrimination and harassment based on 

ethnicity are not protected under the Whistleblower Protection Act (WPA). 

Initial Decision (ID) at 6-7. She also found that the appellant failed to make 

nonfrivolous allegations that her remaining disclosures were protected. ID at 7-8. 

Nevertheless, the administrative judge went on to conclude that the appellant had 

nonfrivolously alleged that her disclosures were a contributing factor in the 

agency’s decision to take the personnel actions of not allowing the appellant to 

supervise her subordinate and not giving the appellant a performance award in 

2006. ID at 9-12. The appellant has filed a petition for review of that decision∗

and the agency has responded in opposition thereto. Petition for Review File 

(PFRF), Tabs 1, 3. 

ANALYSIS

¶6 On petition for review, the appellant asserts that her disclosures revealed 

misconduct and abuse of authority such that a reasonable person could conclude 

that merit principles had been violated. PFRF, Tab 1 at 4-5. We agree. 

¶7 The Board has jurisdiction over an IRA appeal if the appellant has 

exhausted her administrative remedies before OSC and makes nonfrivolous 

allegations that: (1) She engaged in whistleblowing activity by making a 

protected disclosure, and (2) the disclosure was a contributing factor in the 

agency's decision to take or fail to take a personnel action. Yunus v. Department 

 

∗

 The appellant made an additional submission after the petition for review record 

closed. PFRF, Tabs 2, 4. Because the appellant made no showing that the information 

contained therein was not readily available before the record closed, the Board has not 

considered it. See 5 C.F.R. § 1201.114(i). 
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of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). Conclusory, vague, or 

unsupported allegations are insufficient to qualify as nonfrivolous allegations of 

IRA jurisdiction. Luecht v. Department of the Navy, 87 M.S.P.R. 297, ¶ 5 (2000). 

The WPA provides that it is a prohibited personnel practice to take a personnel 

action against an employee for any disclosure of information which the employee 

reasonably believes evidences a violation of any law, rule, or regulation, or gross 

mismanagement, gross waste of funds, abuse of authority, or a substantial and 

specific danger to public health or safety. 5 U.S.C. § 2302(b)(8); Keefer v. 

Department of Agriculture, 82 M.S.P.R. 687, ¶ 13 (1999). 

¶8 To satisfy the exhaustion requirement in an IRA appeal, an appellant must 

inform OSC of the precise ground of her charge of whistleblowing, giving OSC a 

sufficient basis to pursue an investigation that might lead to corrective action. 

Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992). In 

an IRA appeal, the Board may consider only those charges of whistleblowing that 

the appellant asserted before OSC, and it may not consider any subsequent 

recharacterization of those charges put forth by the appellant in her appeal to the 

Board. D'Elia v. Department of the Treasury, 60 M.S.P.R. 226, 231 (1993), 

overruled on other grounds by Thomas v. Department of the Treasury, 77 

M.S.P.R. 224 (1998), overruled on other grounds by Ganski v. Department of the 

Interior, 86 M.S.P.R. 32 (2000); see Ellison v. Merit Systems Protection Board, 7 

F.3d 1031, 1036 (Fed. Cir. 1993) (the test of the sufficiency of an employee’s 

charges of whistleblowing to OSC is the statement that he makes in the complaint 

requesting corrective action, not his post hoc characterization of those 

statements). 

The appellant has nonfrivolously alleged that she made a protected 

disclosure.

¶9 In her OSC complaint, the appellant described four matters as her alleged 

protected disclosures. IAF, Tab 4, Subtab 4 at 17-18. As set forth below, one of 
5

these descriptions constitutes a nonfrivolous allegation that the appellant made a 

disclosure protected by the WPA. It is undisputed that the appellant exhausted 

her OSC remedies with respect to these four alleged protected disclosures. 

¶10 The appellant complained to OSC that in 2002, Salazar canceled a vacancy 

announcement he had previously approved and agreed to laterally reassign Diane 

Garcia from the Human Resources Department to G&A. IAF, Tab 4, Subtab 4 at 

17. She contended that Garcia was unqualified for the position and was 

transferred at the request of the Director of Human Resources, with whom Garcia 

had an ongoing conflict, and as a favor to Garcia’s friend, Dolores Rottach, 

Deputy Director of Acquisition Management. Id. She also claimed that she was 

not permitted to supervise Garcia or to direct her work. The appellant contended 

that she was verbally reprimanded for her “challenging” behavior when she 

asserted the right to supervise Garcia and objected to Garcia’s constantly being 

assigned other duties by Rottach. Id. 

¶11 The appellant asserted that she objected to Garcia’s reassignment because 

she was unqualified and that she “took the issue” to Turner. Id. at 17, 29. 

According to the appellant, Salazar then verbally reprimanded her for taking the 

problem to his supervisor, Turner. Id. at 17. In her OSC complaint, she claimed 

that Garcia’s reassignment violated 5 C.F.R. § 7.1 and 5 U.S.C. § 2302(b)(2), (6), 

and (10). Id. 

¶12 Under 5 U.S.C. § 2302(b)(6), an agency employee with the authority to 

take, recommend, or approve a personnel action is prohibited from granting any 

preference or advantage not authorized by law, rule, or regulation to any 

employee or applicant for the purpose of improving or harming the prospects of 

any particular individual for employment. Although the appellant did not list this 

subsection, we note that 5 U.S.C. § 2302(b)(12) provides that it is prohibited to 

take or fail to take a personnel action if doing so violates any law, rule, or 

regulation implementing or directly concerning merit system principles. Pursuant 

to 5 U.S.C. § 2301, the merit system principles mandate protection against 
6

personal favoritism and provide that recruitment should be from qualified 

individuals. Among the “personnel actions” covered by § 2302 are 

reassignments. 5 U.S.C. § 2302(a)(2)(A)(iv); see Villamarzo v. Environmental 

Protection Agency, 92 M.S.P.R. 159, ¶ 7 (2002) (indicating that the definition of 

“personnel actions” in 5 U.S.C. § 2302(a)(2)(A) are to be used to determine if a 

prohibited personnel practice has occurred with regard to “personnel actions,” as 

used in 5 U.S.C. § 2302(b)). 

¶13 The lateral reassignment of Garcia to the G&A position is therefore a 

personnel action within the meaning of 5 U.S.C. § 2302(b). Further, the 

appellant’s contention that Salazar reassigned an unqualified employee to a 

position as a favor to others could constitute a violation of 5 U.S.C. § 2302(b)(6) 

and (12) because Garcia apparently was not entitled to any preference or 

advantage authorized by law, rule, or regulation. The Board has previously held 

that claims concerning disclosures about hiring and selection improprieties, 

including giving preferential treatment to friends, may constitute nonfrivolous 

allegations of protected disclosures that statutory provisions have been violated. 

Luecht, 87 M.S.P.R. 297, ¶ 14; Schaeffer v. Department of the Navy, 86 M.S.P.R. 

606, ¶¶ 9-10 (2000) (finding the appellant made a nonfrivolous allegation that he 

disclosed a violation of law and an abuse of authority regarding personnel 

selections being made without regard to merit); Ganski, 86 M.S.P.R. 32, ¶¶ 6-7. 

Accordingly, we find that the appellant has nonfrivolously alleged that she made 

a protected disclosure to Turner regarding an alleged violation of law by Salazar 

when he reassigned Garcia. 

The appellant’s remaining disclosures either were not protected or could not 

have contributed to any personnel action about which the appellant 

complains. 

The lateral transfer of Dennis Rino

¶14 This allegedly protected disclosure concerned Salazar’s arranging for the 

lateral reassignment of his friend, Dennis Rino, from Oregon to Santa Fe, New 
7

Mexico, to fill a vacant G&A position. IAF, Tab 4, Subtab 4 at 17. The 

appellant asserted that Salazar gave the position to Rino because he “needed to 

get back” to New Mexico and that Rino never intended to stay in the position, as 

he accepted a different position in Santa Fe a few months after his lateral 

reassignment. Id. The appellant contended that she complained about this to 

Salazar. Id. In her OSC complaint, she claimed that Rino’s reassignment 

violated 5 U.S.C. § 2302(b)(2), (8)(A)(ii), and (10). Id. 

¶15 The appellant indicated in her OSC complaint that the individuals 

responsible for the violations she was reporting were Salazar and Turner. IAF, 

Tab 4, Subtab 4 at 17. She did not specifically allege that Turner was involved in 

this alleged violation, however. While she listed Turner and Richard Lucero as 

individuals to whom she made disclosures generally, she did not indicate that she 

made this particular disclosure to anyone but Salazar. Id. at 17, 22. Because she 

reported this purported violation to the individual allegedly responsible for it, the 

disclosure was not protected. It is well-settled that the WPA does not apply when 

an employee complains to her supervisor about the supervisor’s own conduct. 

E.g., Reid v. Merit Systems Protection Board, 508 F.3d 674, 678 (Fed. Cir. 2007); 

Huffman v. Office of Personnel Management, 263 F.3d 1341, 1350 (Fed. Cir. 

2001). 

Salazar’s behavior toward the appellant and Carmen Melendez

¶16 After Garcia left G&A and her former position was advertised, agency 

employee Carmen Melendez was selected for it. IAF, Tab 4, Subtab 4 at 17-18. 

The appellant was involved in her selection. Id., Subtab 2 at 3. The appellant 

asserted that she was supposed to supervise Melendez, but that Salazar told 

Melendez the appellant was difficult and to go to him directly for supervision. 

Id., Subtab 4 at 17-18. Salazar located Melendez in a cubicle next to his office, 

instead of in the G&A area. Id. at 18. The appellant claimed that Salazar refused 

to support her supervision of Melendez, which resulted in Melendez’s refusing to 

account for her time, submit her time sheets to the appellant, notify the appellant 
8

of absences, or take direction from or speak to the appellant. Id. The appellant 

contended that Salazar treated Melendez much more favorably than he treated the 

appellant. Id. at 3-4. 

¶17 Unlike her prior allegations, this disclosure did not concern Salazar’s 

vacancy-filling practices. Instead, it focused on Salazar’s perceived favoritism 

toward Melendez and his undermining of the appellant’s supervisory authority. 

¶18 Under the circumstances presented in this case, the alteration of the 

appellant’s supervisory authority is more appropriately categorized as a personnel 

action under the WPA, as the administrative judge found. Nevertheless, we have 

considered whether the actions described could be considered gross 

mismanagement or an abuse of authority. 

¶19 “Gross mismanagement” is a decision that creates a “substantial risk of 

significant adverse impact on the agency’s ability to accomplish its mission.” 

McCorcle v. Department of Agriculture, 98 M.S.P.R. 363, ¶ 22 (2005). While 

Salazar’s alleged actions undoubtedly would have adversely impacted the 

appellant, it does not appear that they would have created a substantial risk of 

significant adverse impact on the agency’s ability to accomplish its mission. 

¶20 “Abuse of authority” occurs when there is an “arbitrary or capricious 

exercise of power by a federal official or employee that adversely affects the 

rights of any person or that results in personal gain or advantage to himself or to 

preferred other persons.” McCorcle, 98 M.S.P.R. 363, ¶ 24. Although the 

appellant’s allegations regarding Salazar’s treatment of her with respect to 

Melendez could conceivably be considered an abuse of authority, the appellant 

did not assert in her OSC complaint that she disclosed this particular matter to 

any individual at her agency. See IAF, Tab 4, Subtab 4. She generally alleged 

that she made disclosures to Turner and Lucero, but she did not specify that she 

made this disclosure to anyone. Id. at 17-18, 22. Before the Board, the appellant 

claimed that she had reported this information to Turner. IAF, Tab 5 at 6-7. The 

Board may consider only those charges of whistleblowing that the appellant 
9

asserted before OSC, however; it may not consider any subsequent factual 

recharacterization of those charges put forth by the appellant in her appeal to the 

Board. See Ellison, 7 F.3d at 1036. While her communication of this information 

to OSC could constitute a protected disclosure under 5 U.S.C. § 2302(b)(8)(B), 

she did not file her OSC complaint until after all of the personnel actions 

allegedly taken against her had already occurred. See IAF, Tab 4, Subtab 4 at 22-

23. Thus, even if this disclosure were protected, it could not have contributed to 

a personnel action taken against the appellant. 

Hostile work environment

¶21 The appellant asserted that Salazar has created a hostile work environment 

for employees “not included in his clique of friends” and has engaged in disparate 

treatment of employees who are not Hispanic. IAF, Tab 4, Subtab 4 at 3-4, 18. 

She claimed that Salazar arranged for the non-competitive hire of Ron Bratton, 

the husband of his wife’s best friend, as a FOIA Officer. Id. at 18. After Bratton 

was later appointed as counsel in the Employee Relations Department, his 

replacement, Ray Montano, was announced on March 12, 2007, before anyone on 

staff had an opportunity to express an interest in the position. Id. The appellant 

contended that Montano is currently employed in Employee Relations and has 

advised Salazar on employee issues and complaints in the past. Id. 

¶22 Alleged disclosures that an agency engaged in discrimination and created a 

hostile work environment in violation of title VII are covered under 5 U.S.C. 

§ 2302(b)(1) and (b)(9), and are excluded from coverage under § 2302(b)(8). 

McCorcle, 98 M.S.P.R. 363, ¶ 21; Redschlag v. Department of the Army, 89 

M.S.P.R. 589, ¶ 84 (2001), review dismissed, 32 F. App’x 543 (Fed. Cir. 2002). 

Moreover, the appellant did not assert in her OSC complaint that she disclosed 

this series of events to anyone within the agency. She generally alleged that she 

made disclosures to Turner and Lucero, but she did not specify that she made this 

disclosure to anyone. IAF, Tab 4, Subtab 4 at 18, 22. Before the Board, the 

appellant claimed that she raised Salazar’s preference for Hispanic employees 
10

with Turner, but we cannot accept her recharacterization of the charges she made 

before OSC. IAF, Tab 5 at 7; see Ellison, 7 F.3d at 1036. As was the case with 

her prior alleged disclosure, the fact that she raised the matter with OSC could 

make this disclosure protected. 5 U.S.C. § 2302(b)(8)(B). The appellant filed 

her OSC complaint after all of the alleged personnel actions occurred, however. 

IAF, Tab 4, Subtab 4 at 22-23. This disclosure, even if protected, therefore could 

not have contributed to any personnel action that had already been taken against 

her. 

The appellant has made a nonfrivolous allegation that her disclosure 

contributed to the agency’s decision to take a personnel action against her.

¶23 Neither party disputes the administrative judge’s finding that the appellant 

made a nonfrivolous allegation that her disclosures were a contributing factor in 

the agency’s decision to take the personnel actions of not allowing the appellant 

to supervise her subordinate, Melendez, and not giving the appellant a 

performance award in 2006. See ID at 9-12; PFRF, Tab 1 at 5, Tab 3. We agree 

that the appellant has nonfrivolously alleged that Salazar’s actions in 

undermining her supervisory authority constituted a significant change in duties, 

responsibilities, or working conditions, which is a “personnel action” within the 

meaning of the WPA. See 5 U.S.C. § 2302(a)(2)(A)(xi). However, the record 

does not indicate that the appellant exhausted her OSC remedies with respect to 

her allegation that she was denied a performance award for fiscal year 2006. See 

IAF, Tab 4, Subtab 4. Accordingly, on remand, the only personnel action within 

the scope of the appeal is Salazar’s action to prevent the appellant from 

supervising her subordinate. See Ellison, 7 F.3d at 1036; D'Elia, 60 M.S.P.R. at 

231. 

ORDER

¶24 For the foregoing reasons, we find that the appellant has exhausted her 

OSC remedies and has made nonfrivolous allegations that she made a protected 
11

disclosure and that, as a result, she was subjected to a personnel action covered 

by the WPA. Accordingly, we conclude that the Board has jurisdiction over this 

appeal and we REMAND it to the Denver Field Office for adjudication on the 

merits. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C.