# Monica Hendrickson v. Department of Veterans Affairs

> Merit Systems Protection Board · June 13, 2023

URL: https://www.frixlaw.com/law-library/cases/9401815

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** June 13, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

MONICA A. HENDRICKSON, DOCKET NUMBER
Appellant, DE-1221-17-0012-W-1

v.

DEPARTMENT OF VETERANS DATE: June 13, 2023
AFFAIRS,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joshua L. Klinger, Esquire, Denver, Colorado, for the appellant.

Pam Florea, Omaha, Nebraska, for the appellant.

Michael E. Anfang, Kansas City, Missouri, 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. Generally, we grant petitions such as

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

this one only in the following 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 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. Except as expressly
MODIFIED by this Final Order to VACATE the administrative judge’s finding
that the appellant’s appearance as a potential witness at a June 2015 protective
order hearing constituted protected activity under 5 U.S.C. § 2302(b)(9)(B), we
AFFIRM the initial decision.

BACKGROUND
¶2 The appellant is employed as a GS-9 Medical Instrument Technician at the
agency’s Nebraska Western Iowa Health Care System in Omaha, Nebraska.
Initial Appeal File (IAF), Tab 1 at 1, Tab 14 at 4, Tab 19 at 24. The appellant
filed a complaint with the Office of Special Counsel (OSC) alleging that she
made the following disclosures or engaged in the following protected activities:
(1) in January and February 2015, she provided statements to the agency’s Equal
Employment Opportunity (EEO) manager during an interview for an internal
agency “climate assessment” investigation; (2) on May 7, 2015, she provided
testimony before an Administrative Investigation Board (AIB); and (3) on June 8,
2015, she was present at an “order of protection” hearing at a county courthouse
to offer testimony in support of a fellow employee. IAF, Tab 1 at 5-13. In
3

retaliation for these alleged disclosures or protected activities, the appellant
asserted that the agency provided her with a lowered “fully successful” annual
performance evaluation for fiscal year 2015 after several consecutive years of
being rated as “outstanding.” Id. at 10-12. In her complaint to OSC, the
appellant also detailed a number of negative interactions she had with colleagues
and supervisors following these events, and indicated that she desired to work in
a “non-hostile environment.” Id. at 10-11. After receiving OSC’s close-out letter
informing her of her right to seek corrective action from the Board, id. at 14-15,
the appellant timely filed the instant individual right of action (IRA) appeal, IAF,
Tab 1.
¶3 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision denying her request for corrective action. IAF, Tab 30,
Initial Decision (ID) at 2, 15. The administrative judge first found that the
appellant exhausted her administrative remedies with OSC regarding the
above-identified disclosures or activities, and identified the personnel actions the
appellant was challenging as her receipt of a “fully successful” performance
rating for fiscal year 2015, and her claim that she was subject to a retaliatory
“hostile work environment.” ID at 4; IAF, Tab 10 at 6-7. Nonetheless, the
administrative judge determined that the appellant failed to meet her prima facie
burden for establishing her claims of whistleblower retaliation. ID at 5 -15.
Specifically, the administrative judge determined that the appellant did not make
any protected disclosures or engage in any protected activities by being
interviewed as a part of the EEO climate assessment. ID at 5-10. The
administrative judge also found that the appellant did not establish any protected
disclosures or activities in relation to her participation in the AIB proceedings.
ID at 10-12. Finally, the administrative judge determined that the appellant’s
appearance as a witness at a June 8, 2015 protective order hearing was a protec ted
activity under 5 U.S.C. § 2302(b)(9)(B), but that the appellant had failed to
demonstrate that it was a contributing factor in any of the actions challenged in
4

the appeal. ID at 13-15. Consequently, the administrative judge denied the
appellant’s request for corrective action. ID at 2, 15.

DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The appellant has filed a timely petition for review in which she challenges
the administrative judge’s findings that she did not make any protected
disclosures or engaged in any protected activities by participat ing in the climate
assessment and the AIB proceedings. Petition for Review (PFR) File, Tab 3
at 7-12. Regarding the protective order hearing, the appellant challenges the
administrative judge’s contributing factor determination and his conclusion that
none of the officials who were responsible for her lowered performance rating
had any motive to retaliate against her because of her purported disclosures or
protected activities. Id. at 12-13. The agency has filed a response in opposition
to the petition for review, and the appellant has not filed a reply. PFR File,
Tab 5.

The administrative judge correctly determined that the appellant ’s disclosure of
her supervisor’s sexual comments and his assertion that he wished for a physical
altercation with his subordinate were not disclosures or activities protected under
5 U.S.C. § 2302(b)(8) or (b)(9).
¶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). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
¶6 On review, the appellant generally asserts that the administrative judge
erred in concluding that the comments she provided during the climate assessment
and the AIB did not constitute disclosures or activities protected by 5 U.S.C.
§ 2302(b)(8) or (b)(9), but she does not specify how the administrative judge
5

erred in his assessment. PFR File, Tab 3 at 8-12. As the administrative judge
correctly noted, the Board has regularly held that allegations of sexual
discrimination and harassment do not constitute protected disclosures of
wrongdoing outlined in section 2302(b)(8), because they pertain to matters of
discrimination covered by 5 U.S.C. § 2302(b)(1)(A) and are actionable through
other administrative mechanisms, such as by filing an EEO complaint. ID at 6-7;
see McDonnell v. Department of Agriculture, 108 M.S.P.R. 443, ¶ 22 (2008);
Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 84 (2001) (finding that
purported disclosures that involve alleged discrimination or reprisal for engag ing
in activities protected by title VII, even if made outside the grievance or EEO
processes, do not constitute protected whistleblower activity under
section 2302(b)(8) because they pertain to matters of discrimination covered by
section 2302(b)(1)(A)); Mitchell v. Department of the Treasury, 68 M.S.P.R. 504,
510 (1995) (“[A]n employee’s claim of sexual harassment . . . is not a protected
disclosure under 5 U.S.C. § 2302(b)(8) because such a claim is more
appropriately resolved under the equal employment opportunity process.”).
¶7 Additionally, as the administrative judge correctly observed and the
appellant does not contest, she was not seeking to remedy a violation of 5 U.S.C.
§ 2302(b)(8) by disclosing the sexual remarks by her supervisor during either the
climate assessment or the AIB testimony, and thus her activity was not protected
under 5 U.S.C. § 2302(b)(9)(A). ID at 7-8; see 5 U.S.C. §§ 1221(a),
2302(b)(9)(A)(i); Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7
(2013).
¶8 Regarding the appellant’s statements during the climate assessment
interview and the AIB investigation that her supervisor stated that he wished his
subordinate would “just f---ing hit [him],” the administrative judge carefully
evaluated the content of the statements the appellant provided during both
investigations and determined that the appellant could not have reasonably
believed that such statements constituted wrongdoing of the type described in
6

section 2302(b)(8). ID at 8-10. He also concluded that the appellant was not
seeking to remedy whistleblower reprisal by reporting that comment during either
the climate assessment or the AIB interview so the statements could not have
constituted protected activity under section 2302(b)(9)(A). ID at 8-10.
Additionally, the administrative judge concluded that the appellant had provided
no evidence demonstrating that anyone responsible for the contested personnel
actions was aware of the purported disclosure. ID at 10-11; see 5 U.S.C.
§ 1221(a); Mudd, 120 M.S.P.R. 365, ¶ 7. Other than the appellant’s asserting that
these findings were in error, PFR File, Tab 3 at 8-10, and restating her claim that
a number of agency officials were aware of her purported disclosures, id. at 9, the
appellant does not offer contrary evidence or argument to either finding on
review, and we see no reason to disturb them.
¶9 Finally, the appellant argues that her participation in the climate assessment
and the AIB were “for the benefit of” a co-worker. PFR File, Tab 3 at 9-10. As
an initial matter, as the administrative judge noted in an order finding jurisdiction
dated October 27, 2016, the appellant specifically admitted that she had not
“formally assisted any individual” at that time, which the administrative judge
interpreted as an admission that the appellant was not raising a claim under
5 U.S.C. § 2302(b)(9)(B) regarding her participation in the climate assessment or
the AIB investigation. IAF, Tab 10 at 8; Tab 6 at 5-6. Nonetheless, to whatever
extent the appellant is arguing that her participation in the climate assessment
constituted protected activity under 5 U.S.C. § 2302(b)(9)(B), the administrative
judge also considered and rejected this claim, finding that by simply speaking
with the EEO manager during the agency-initiated climate assessment, the
appellant was not “testifying for or otherwise lawfully assisting any individual in
the exercise of any right referred to in subparagraph [5 U.S.C. § 2302(b)(9)](A)(i)
or (ii),” and we see no reason to disturb this finding on review. ID at 7-8; see
5 U.S.C. § 2302(b)(9)(A)-(B); Graves v. Department of Veterans Affairs,
123 M.S.P.R. 434, ¶ 14 (2016) (concluding that participating in “an
7

agency-initiated [AIB] investigation” did not constitute “the exercise of an
appeal, complaint, or grievance right”).

The administrative judge correctly determined that the appellant failed to
establish a prima facie claim of retaliation for her AIB in vestigation testimony.
¶10 Regarding the appellant’s supervisor’s statement to her that he was “going
to clean a couple of [his] guns and [sight] them in” over the weekend, the
administrative judge determined that, even if the appellant’s reporting of that
statement during the AIB investigation was a disclosure under 5 U.S.C.
§ 2302(b)(8), she nonetheless failed to meet her prima facie burden because she
could not establish that the disclosure was a contributing factor in any of the
contested personnel actions. ID at 11-12. On review, the appellant challenges
the administrative judge’s contributing factor analysis, arguing that her
rating-official supervisor had a motive to retaliate against her due t o his close
relationship with her then-supervisor. 2 PFR File, Tab 3 at 11.
¶11 The administrative judge adequately considered and rejected this argument
below. Specifically, the administrative judge determined that the appellant ’s
then-supervisor who made the gun comment was aware that the appellant
previously had participated in the climate assessment at the time that he made the
comments, and the administrative judge acknowledged the appellant ’s stated
belief that he made the comments to intimidate her. ID at 11. Nonetheless, the
administrative judge found that the appellant failed to demonstrate that her rating
supervisor or anyone else responsible for giving her the fiscal year 2015 “fully

2
The appellant also appears to suggest that she and other alleged whistleblowers were
treated differently than other employees. PFR File, Tab 3 at 10 -12. However, because
the administrative judge determined that the appellant failed to meet her prima facie
case of reprisal for whistleblowing, considering such a claim would have been
inappropriate. See Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19
n.10 (2014) (stating that the Board may not proceed to the clear and convincing
evidence test unless it has first determined that the appellant established her prima facie
case), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015).
8

successful” performance rating had actual or constructive knowledge of the fact
that the appellant disclosed the gun-sighting statements during the AIB. ID
at 11-12. The administrative judge also evaluated alternative means for
establishing contributing factor, including the strength or weakness of the
agency’s reasons for providing her with the lowered performance rating and
whether the appellant’s supervisor had any desire or motive to retaliate against
her, and determined that even assuming the appellan t’s disclosure of the
gun-sighting remarks during the AIB was protected, she nonetheless failed to
demonstrate that the remarks were a contributing factor in the lowered rating
decision. ID at 12; see Dorney v. Department of the Army, 117 M.S.P.R. 480,
¶¶ 14-15 (2012) (identifying the alternative ways that an appellant can satisfy the
contributing factor standard). We agree with the administrative judge’s findings
in this regard and discern no basis to disturb these findings on revi ew.

The appellant failed to demonstrate that she was subjected to a hostile work
environment that would constitute a personnel action as defined under 5 U.S.C.
§ 2302(a)(2)(A).
¶12 The administrative judge interpreted the appellant’s statement in her OSC
complaint that she wished to work in a “non-hostile environment” as an allegation
that she was subject to a hostile work environment in retaliation for her alleged
protected disclosures. IAF, Tab 10 at 6, Tab 25 at 1-2; ID at 4. The appellant
does not specifically challenge the administrative judge’s findings concerning her
hostile work environment claim by name in her petition for review, and instead
only generally challenges his conclusion that none of her alleged disclosures or
protected activities was a contributing factor in either of the challenged personnel
actions. PFR File, Tab 3 at 7-8.
¶13 In Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 16, the
Board clarified that an allegation of a hostile work environment may constitute a
covered personnel action if it results in a significant change in duties,
responsibilities, or working conditions as set forth in 5 U.S.C. § 2302(a)(2)(A).
9

See 5 U.S.C. § 2302(a)(2)(A)(xii). In determining whether an appellant has
suffered a “significant change” in her duties, responsibilities, or working
conditions, the Board must consider the alleged agency actions both collectively
and individually. Skarada, 2022 MSPB 17, ¶ 16; see Holderfield v. Merit
Systems Protection Board, 326 F.3d 1207, 1209 (Fed. Cir. 2003). A number of
agency actions may amount to a covered “significant change” personnel action
collectively, even if they are not covered personnel actions individually.
Skarada, 2022 MSPB 17, ¶ 18. To constitute a significant change in working
conditions, however, a series of minor agency actions must be pervasive and
occur over an extended period of time. Id., ¶ 16. In sum, 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). Id.
¶14 Although the administrative judge did not have the benefit of Skarada at the
time he issued his initial decision, he nonetheless concluded that the appellant
was not subject to a hostile work environment because the actions the appellant
alleged were taken against her after the May 2015 AIB hearing were not
“sufficiently severe or pervasive” to rise to the level of a hostile work
environment. ID at 12. In reaching this conclusion, the administrative judge did
not specifically explain why he only considered the alleged instances of a hostile
work environment that post-dated the appellant’s statements to the AIB in May
2015, but it appears that he limited his consideration to that timeframe because
that was when the appellant first disclosed the gun-sighting statements—the only
disclosure he evaluated as potentially protected. Id. Nonetheless, we will
consider the additional allegations that contributed to the appellant ’s hostile work
environment claim that occurred prior to the May 2015 AIB investigation, which
were identified by the appellant in a pre-hearing filing and during her hearing
testimony. IAF, Tab 27; Hearing Transcript (HT) (testimony of the appellant). In
10

one allegation, the appellant asserted that on February 4, 2015, she was accused
by a co-worker of lifting a patient in a manner inconsistent with agency policy
immediately after that co-worker left a meeting with her then-supervisor. IAF,
Tab 27 at 4-5; HT at 89-91 (testimony of the appellant). The appellant also
alleged that, on another occasion on April 13, 2015, her second-level supervisor
placed a piece of paper in front of her asking whether her supervisor was “a good
supervisor,” to which the appellant did not reply. IAF, Tab 27 at 5; HT at 93
(testimony of the appellant).
¶15 Nothing about either incident describes “harassment to such a degree that
[the appellant’s] working conditions were significantly and practically impacted.”
Skarada, 2022 MSPB 17, ¶ 29. Accordingly, even considering the above
additional instances of a hostile work environment and applying the framework
for such claims identified in Skarada, we agree with the administrative judge’s
finding that none of the incidents the appellant identified were “sufficiently
severe or pervasive,” individually or collectively, to constitute a significant
change in her working conditions necessary to rise to the level of a covered
personnel action. ID at 12; see 5 U.S.C. § 2302(a)(2)(A)(xii); cf. Skarada,
2022 MSPB 17, ¶¶ 16-18.

We vacate the administrative judge’s finding that the appellant’s appearance at a
protective order hearing on a coworker’s behalf constituted activity protected by
5 U.S.C. § 2302(b)(9)(B).
¶16 Under 5 U.S.C. § 2302(b)(9)(B), it is a protected activity to “testify[ ] for or
otherwise lawfully assist[ ] any individual in the exercise of any right referred to
in subparagraph (A)(i) or (ii).” Section 2302(b)(9)(A), in turn, covers the
protected activities of “the exercise of any appeal, complaint, or grievance right
granted by any law, rule, or regulation—(i) with regard to remedying a violation
of [section 2302(b)(8)]; or (ii) other than with regard to remedying a violation of
[section 2302(b)(8)].” The Board held in Von Kelsch v. Department of Labor,
59 M.S.P.R. 503, 508-09 (1993), overruled on other grounds by Thomas v.
11

Department of the Treasury, 77 M.S.P.R. 224, 236 n.9 (1998), overruled by
Ganski v. Department of the Interior, 86 M.S.P.R. 32 (2000), that filing a claim
with the Office of Workers’ Compensation Programs did not constitute the
“exercise of any appeal, complaint or grievance right ” because it did not
constitute an initial step toward taking legal action against an employer for the
perceived violation of employment rights. Subsequently, in Graves v.
Department of Veterans Affairs, the Board held that an appellant testifying at an
AIB in support of another employee also did not constitute the “exercise of any
appeal, complaint or grievance right” for the same reason, noting that the
Whistleblower Protection Enhancement Act of 2012 (WPEA) did not alter the
Board’s analysis in Von Kelsch concerning the meaning of the term “appeal,
complaint, or grievance” in 5 U.S.C. § 2302(b)(9). 123 M.S.P.R. 434, ¶ 18; see
Linder v. Department of Justice, 122 M.S.P.R. 14, ¶¶ 10-11 (2014).
¶17 Here, the administrative judge determined that by appearing at a county
courthouse and making herself available to testify as a potential witness in
defense of a co-worker during a protective order hearing, the appellant was
“otherwise lawfully assisting” the defendant co-worker in the exercise of any
“appeal, complaint, or grievance right protected b y any law, rule, or regulation”
under 5 U.S.C. § 2302(b)(9)(B). ID at 13. The administrative judge reached this
conclusion, even though the appellant was never actually called to testify on the
defendant co-worker’s behalf, and even though the proceedings were initiated
against the defendant co-worker and not at his behest. Id.
¶18 We find that this determination was in error. By merely appearing at the
county courthouse for a civil protective order proceeding, the appellant was not
taking “an initial step toward taking legal action” against the agency on her co-
worker’s behalf for a perceived violation of that co-worker’s employment rights.
See 5 U.S.C. § 2302(b)(9); Graves, 123 M.S.P.R. 434, ¶¶ 17-19; Von Kelsch,
59 M.S.P.R. at 508-09; cf. Carney v. Department of Veterans Affairs,
121 M.S.P.R. 446, ¶ 6 (2014) (finding that representing an agency employee
12

during an informal grievance meeting falls under the protective umbrella of the
WPEA). Additionally, despite the administrative judge’s conclusion otherwise,
because the co-worker on whose behalf the appellant was appearing was the
subject of and not the initiator of the protective order, the hearing was inarguably
not an “appeal, complaint, or grievance right” that was initiated by that employee.
Graves, 123 M.S.P.R. 434, ¶ 14; ID at 13-14. Consequently, we modify the
administrative judge’s findings concerning the June 2015 protective order hearing
and conclude that the appellant was not “otherwise lawfully assisting” her
co-worker in the exercise of any “appeal, complaint or grievance right” when she
appeared in order to (but did not actually) provide supporting testimony at the
protective order hearing. See 5 U.S.C. § 2302(b)(9)(B); Graves, 123 M.S.P.R.
434, ¶ 18.
¶19 For the foregoing reasons, we deny the petition for review and affirm the
initial decision as modified by this final order. 3

NOTICE OF APPEAL RIGHTS 4
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
your claims determines the time limit for seeking such review and the appropriat e
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

3
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
4
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.
13

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.uscou rts.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
14

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, y ou 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.
Alternatively, you may request review by the Equ al 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
15

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
competent jurisdiction. 5 The court of appeals must receive your petition for

5
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.
16

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.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17

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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9401815. Public record. Not legal advice.