Stribling v. Department of Education ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3336
JANICE L. STRIBLING,
Petitioner,
v.
DEPARTMENT OF EDUCATION,
Respondent.
Janice L. Stribling, of Alexandria, Virginia, pro se.
Maame A.F. Ewusi-Mensah, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
her on the brief were Jeanne E. Davidson, Director, and Harold D. Lester, Jr., Assistant
Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3336
JANICE L. STRIBLING,
Petitioner,
v.
DEPARTMENT OF EDUCATION,
Respondent.
Petition for review of the Merit Systems Protection Board in DC0752080086-I-1.
__________________________
DECIDED: February 5, 2009
__________________________
Before LINN and PROST, Circuit Judges, and ARTERTON, District Judge. *
PER CURIAM.
Janice L. Stribling (“Stribling”) petitions for review of a final decision of the Merit
Systems Protection Board (“Board”) affirming her removal from employment by the
Department of Education (the “agency”). Stribling v. Dep’t of Educ., No.
DC0752080086-I-1 (M.S.P.B. Mar. 4, 2008) (“Initial Decision”), review denied, Stribling
v. Dep’t of Educ., No. DC0752080086-I-1 (M.S.P.B. Aug. 4, 2008). Because Stribling
has identified no basis for us overturn the Board’s decision, we affirm.
At the time of her removal, Stribling was a secretary in the agency’s Office of
Federal Student Aid. Initial Decision at 1. In May 2005, Stribling was transferred from
*
Honorable Janet B. Arterton, District Judge, United States District Court
for the District of Connecticut, sitting by designation.
Philadelphia to the agency’s office in Washington, D.C. Id. at 20. In connection with
this transfer, Stribling was given a government credit card to cover authorized relocation
expenses, including a temporary housing allowance. Id. Stribling’s temporary housing
allowance expired on August 7, 2005, but she continued to use her travel credit card to
pay for housing and other expenses until August 30, 2005. Id. at 20-21.
Additionally, on August 8, 2005, Stribling reported to her supervisor that she had
suffered a medical emergency, and she requested to be placed on unpaid leave. Id.
Stribling’s supervisor granted the request, but requested specific medical
documentation of Stribling’s medical condition and prognosis. Id. at 12-14. When
Stribling failed to provide the requested medical documentation, her supervisor ordered
her to return to work effective September 15, 2005. Id. Stribling did not return to work
for fifteen days during the period from September 15, 2005 through October 5, 2005,
nor did she contact her supervisor on those dates to request leave as required by the
agency’s collective bargaining agreement. Id. at 7, 14.
The agency removed Stribling for absence without leave, failure to follow leave
requesting procedures, and misuse of a government travel credit card. Id. at 1.
Following a hearing, an administrative judge of the Board found that the agency had
proven all three charges by a preponderance of the evidence, and that Stribling had
failed to prove either of her affirmative defenses of disability discrimination and
retaliation. Id. at 7-28. The administrative judge also concluded that the agency had
properly applied the Douglas factors and that the penalty of removal was reasonable.
Id. at 28-30 (citing Douglas v. Veterans Admin., 5 M.S.P.R. 280, 306 (1981)). The full
Board denied review, and Stribling appeals.
2008-3336 2
I
Preliminarily, we address our jurisdiction to hear Stribling’s appeal. Before the
Board, Stribling raised an affirmative defense of disability discrimination, and the Board
found that she had failed to prove the defense by a preponderance of the evidence. Id.
at 26. Ordinarily, this court has “no jurisdiction over the merits of a mixed case, i.e., one
involving an adverse action and a claim of discrimination,” unless “the petitioner files an
explicit waiver of the claim of discrimination.” Davidson v. U.S. Postal Serv., 24 F.3d
223, 223-24 (Fed. Cir. 1994). In this case, Stribling explicitly waived her discrimination
claims by completing this court’s Rule 15(c) Statement Concerning Discrimination (Form
10), and checking the box stating that “Any claim of discrimination by reason of race,
sex, age, national origin, or handicapped condition raised before and decided by the
Merit Systems Protection Board or arbitrator has been abandoned or will not be raised
or continued in this or any other court.”
Notwithstanding this explicit waiver, Stribling’s informal brief contains, among her
other arguments, an assertion that her affirmative defense of disability discrimination
was wrongly decided because “[t]he MSPB failed to consider reasonable
accommodation.” Pet’r’s Informal Br. ¶ 4. Because Stribling’s Rule 15(c) statement
unambiguously waived any claim based on discrimination, and because this is neither a
case in which the petitioner’s other arguments cannot be divorced from her
discrimination claim, nor one in which the appeal is based entirely on allegations of
discrimination, the court deems the argument based on discrimination not before us.
Accordingly, we will not address it and do not consider it to defeat our jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9) over Stribling’s appeal.
2008-3336 3
II
“Our scope of review in an appeal from a decision of the Board is limited.
Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation having been followed; or
unsupported by substantial evidence.” Abell v. Dep’t of Navy, 343 F.3d 1378, 1382-83
(Fed. Cir. 2003) (citing 5 U.S.C. § 7703(c)). “The petitioner bears the burden of
establishing error in the Board’s decision.” Harris v. Dep’t of Veterans Affairs, 142 F.3d
1463, 1467 (Fed. Cir. 1998).
Apart from the discrimination argument we have deemed not before us, Stribling
raises two principal arguments on appeal. First, Stribling asserts that the Board made
errors in fact-finding by overlooking various emails, questionnaires, letters, and other
documents that Stribling has identified in the record. We have reviewed each of the
documents that Stribling has identified, and find nothing that contradicts the Board’s
findings. Although some of the identified documents concern Stribling’s efforts to obtain
treatment for medical conditions, none of the identified documents suggests that
Stribling ever obtained or submitted the medical documentation that her supervisor
expressly requested to justify her request for leave. Likewise, none of the identified
documents suggests that Stribling complied with the terms of the agency’s collective
bargaining agreement when requesting leave. Finally, none of the identified documents
suggests that Stribling was authorized to use her government travel credit card for
expenses after its expiration on August 7, 2005. Thus, we conclude that the Board’s
findings concerning Stribling’s absence without leave, her failure to follow leave
2008-3336 4
requesting procedures, and her misuse of a government travel credit card are all
supported by substantial evidence.
Second, Stribling argues that the Board erred by rejecting her claim that she was
terminated as a result of protected whistleblowing activity. “To establish a violation of
the Whistleblower’s Protection Act (WPA), we require proof of four elements: (1) the
acting official has the authority to take, recommend, or approve any personnel action;
(2) the aggrieved employee made a disclosure protected under [5 U.S.C. §] 2302(b)(8);
(3) the acting official used his authority to take, or refuse to take, a personnel action
against the aggrieved employee; (4) the acting official took, or failed to take, the
personnel action against the aggrieved employee because of the protected disclosure.”
Drake v. Agency for Int’l Dev., 543 F.3d 1377, 1380 (Fed. Cir. 2008) (quoting Lachance
v. White, 174 F.3d 1378, 1380 (Fed. Cir. 1999)). The Board found that Stribling’s
alleged whistleblowing activity occurred two years prior to her removal, and that it
concerned actions by management officials in the Philadelphia office of the Office of
Federal Student Aid. Initial Decision at 6 n.2. Stribling neither explained at the Board
nor explains on appeal how her disclosures concerning managers in the Philadelphia
office could have been the cause of her termination two years later by different
managers in the Washington D.C. office. Accordingly, we have no basis on which to
disturb the Board’s rejection of this claim.
In sum, we cannot conclude that the Board’s decision was “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law; obtained without
procedures required by law, rule, or regulation having been followed; or unsupported by
2008-3336 5
substantial evidence.” Abell, 343 F.3d at 1382-83. We therefore affirm the decision of
the Board.
COSTS
No costs.
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