UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JULIETTE L. NEAL,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

PH-1221-15-0378-W-1

DATE: August 17, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Juliette L. Neal, Laurel, Maryland, pro se.

Anita Gwynn, Baltimore, Maryland, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, 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. 

Generally, we grant petitions such as this one only when: the initial decision 

contains erroneous findings of material fact; the initial decision is based on an 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. See 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. 5 C.F.R. 

§ 1201.113(b). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 On September 20, 2013, the agency notified the appellant, a GS-12 Health 

Insurance Specialist, that she would be terminated during her probationary period 

due to conduct and performance issues effective the next day. Initial Appeal File 

(IAF), Tab 4 at 14-19. However, prior to the effective date of the termination, the 

appellant resigned, and the agency processed her separation as a resignation 

effective September 22, 2013. Id. at 13; IAF, Tab 11 at 8. On the day she 

received the notice of termination, the appellant initiated the equal employment 

opportunity (EEO) complaint process, alleging, among other things, that she was 

terminated due to sex-based discrimination and reprisal. IAF, Tab 5, Subtab VI 

at 30‐39. On December 13, 2013, the appellant was notified of her right to file a 

formal EEO complaint of discrimination, but did not do so. IAF, Tab 4 at 12;

Tab 13 at 4. On December 11, 2014, the appellant filed a complaint with the 

Office of Special Counsel (OSC) alleging that she was terminated in retaliation 
3

for her opposition to, and reporting of, sexual harassment by her supervisor. 2 

IAF, Tab 6. On March 30, 2015, OSC notified the appellant that it was closing its 

investigation into her complaint and that she had the right to file a request for 

corrective action with the Board. IAF, Tab 1 at 8‐9. 

¶3 The appellant timely filed a request for corrective action with the Board.3

 

IAF, Tab 1. In an order on jurisdiction, the administrative judge advised the 

appellant that disclosures of discrimination do not constitute protected 

whistleblower activity because they pertain to matters of discrimination covered 

by 5 U.S.C. § 2302(b)(1)(A) and explained that her claims of sexual harassment 

and “hostile environment” sexual harassment constituted allegations of 

discrimination based on sex. IAF, Tab 17 at 2. The administrative judge further 

explained that, although the Whistleblower Protection Enhancement Act 

(WPEA) made allegations of reprisal for certain “protected activity” in 5 U.S.C. 

§ 2302(b)(9) actionable in an IRA appeal, the WPEA did not appear to have 

any effect on the Board’s precedent holding that disclosures of Title VII 

violations—such as discrimination based on sex—are not protected 

whistleblowing. Id. Thus, the administrative judge ordered the appellant to show 

cause why the appeal should not be dismissed for lack of jurisdiction. Id. at 3. In 

response, the appellant explained that she withdrew her request for a hearing in 

 2 In the appellant’s OSC complaint, she alleged that her supervisor sexually harassed 

her over the course of several months. IAF, Tab 6 at 1. The appellant stated that, due 

to the harassment, she twice suggested sexual harassment awareness training in 

response to a survey from the Deputy Director. Id. at 1, 8. She further stated that she 

believed her supervisor became aware of her survey responses because he subsequently 

told her that he did not “believe in sexual harassment.” Id. at 2, 8. The appellant also 

stated that she spoke to a coworker about her supervisor’s harassing behavior in 

confidence but later learned that her coworker had informed her supervisor of the 

conversation. Id. at 2. The appellant alleged that the agency failed to respond to her

complaints of sexual harassment. Id. at 3, 9. 

3 The appellant did not request a hearing. IAF, Tab 1 at 1. 
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her EEO complaint after the agency attorney treated her in a “hostile, 

antagonistic” manner during a teleconference. IAF, Tab 18 at 1‐2. 

¶4 In an initial decision based on the written record, the administrative judge 

found that the appellant failed to make a nonfrivolous allegation that she made 

any disclosures protected under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or 

(D), and dismissed the IRA appeal for lack of jurisdiction. IAF, Tab 19, Initial 

Decision (ID). The appellant has filed a petition for review of the initial 

decision, the agency has responded in opposition, and the appellant has replied to 

the agency’s response. Petition for Review (PFR) File, Tabs 3, 5‐6. 

¶5 The Board has jurisdiction over an IRA appeal if the appellant exhausts her 

administrative remedies before OSC and makes nonfrivolous allegations that: 

(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8), or engaged in 

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). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans 

Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).

¶6 We agree with the administrative judge’s finding that the appellant has not 

presented a nonfrivolous allegation that she made any protected disclosure under 

section 2302(b)(8). ID at 6-7. Although the appellant exhausted her 

administrative remedy regarding her claims of having suggested sexual 

harassment awareness training in response to a survey from the Deputy Director

and telling a coworker about her supervisor’s purported harassing behavior, it is 

well settled that disclosures concerning discrimination covered by Title VII are 

excluded from coverage under section 2302(b)(8). Parikh v. Department of 

Veterans Affairs, 110 M.S.P.R. 295, ¶ 24 (2008); McDonnell v. Department of 

Agriculture, 108 M.S.P.R. 443, ¶ 22 (2008). On review, the appellant has 
5

provided no basis to disturb the administrative judge’s finding, and we discern 

none. PFR File, Tabs 3, 5. 

¶7 We likewise agree with the administrative judge’s finding that the appellant 

has not presented a nonfrivolous allegation that she disclosed retaliation based on 

a protected activity. ID at 7. As the administrative judge correctly explained, the

WPEA expanded the scope of protected activity to include a claim that an agency 

retaliated for “the exercise of any appeal, complaint, or grievance right granted by 

any law, rule, or regulation . . . with regard to remedying a violation of 

[section 2302(b)](8).” 5 U.S.C. § 2302(b)(9)(i); ID at 7. Here, however, the 

appellant does not allege that the agency retaliated against her for filing an EEO 

complaint, and the record reflects that she initiated an EEO complaint only after 

she was notified of her termination. IAF, Tab 5 at 30; IAF, Tab 1; PFR File,

Tabs 3, 6. Accordingly, we discern no basis to disturb the administrative judge’s 

finding that the appellant failed to nonfrivolously allege that the agency retaliated 

against her for engaging in protected activity. ID at 7‐8. 

¶8 In sum, we conclude that, because the appellant did not nonfrivolously 

allege that she made a protected disclosure under 5 U.S.C. § 2302(b)(8), or 

engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), 

(C), or (D), the administrative judge correctly determined that the Board lacks 

jurisdiction over this IRA appeal. ID at 8. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit. 

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. 

Dec. 27, 2012). If you choose to file, be very careful to file on time. The court 

has held that normally it does not have the authority to waive this statutory 
6

deadline and that filings that do not comply with the deadline must be dismissed. 

See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court. 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the

United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

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, and 11. Additional 

information about other 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. 

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 
7

at http://www.mspb.gov/probono for information regarding pro bono 

representation for Merit Systems Protection Board appellants before the Federal 

Circuit. The Merit Systems Protection Board neither endorses the services 

provided by any attorney nor warrants that any attorney will accept representation 

in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board