Strickland-Donald v. Department of the Army , 657 F. App'x 959 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TERRI V. STRICKLAND-DONALD,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2016-1635
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-1221-15-0132-W-1.
______________________
Decided: August 9, 2016
______________________
TERRI V. STRICKLAND-DONALD, Leavenworth, KS, pro
se.
DELISA SANCHEZ, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BENJAMIN C.
MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-MILLER;
ANNE E. HINKEBEIN, Office of the Judge Advocate Gen-
eral, Labor and Employment Law Division, United States
Department of the Army, Rosslyn, VA.
______________________
2 STRICKLAND-DONALD v. DEP’T OF THE ARMY
Before O’MALLEY, WALLACH, and TARANTO, Circuit Judg-
es.
PER CURIAM.
Terri V. Strickland-Donald appeals the final decision
of the Merit Systems Protection Board (“MSPB”) denying
her request for corrective action sought in her Individual
Right of Action (“IRA”) appeal under the Whistleblower
Protection Act of 1989 (“WPA”), Pub. L. No. 101-12, 103
Stat. 16 (codified as amended in scattered sections of 5
and 22 U.S.C.) and the Whistleblower Protection En-
hancement Act of 2012, Pub. L. 112-199, 126 Stat. 1465
(codified as amended in scattered sections of 5, 6, and 31
U.S.C.). See Strickland-Donald v. Dep’t of the Army, No.
DE-1221-15-0132-W-1 (M.S.P.B. Dec. 31, 2015) (Resp’t’s
App’x 31–43). We affirm.
BACKGROUND
In November 2008, Ms. Strickland-Donald was em-
ployed by the United States Army (“Army”) as an Audio-
visual Production Specialist, at the GS-11 pay grade, in
the Visual Information Support Center (“VISC”) at Camp
Humphreys, South Korea. Resp’t’s App’x 9, 32. In either
late 2009 or early 2010, Ms. Strickland-Donald’s first-line
supervisor at Camp Humphreys, Douglas Mitchell, “ad-
vised her that he believed her position description needed
to be updated to reflect additional duties she was perform-
ing, which merited a GS-12 classification.” Id. at 32
(citation omitted). From May to December 2010, several
Human Resource Specialists reviewed Ms. Strickland-
Donald’s job description, but those reviews did not result
in the requested reclassification. Id. at 32–33. Mr.
Mitchell subsequently retired in 2011. Id. at 33.
Because Ms. Strickland-Donald did not “receive[] the
promotion to which she believed she was entitled,” she
“continued to raise the matter with various [Army] offi-
STRICKLAND-DONALD v. DEP’T OF THE ARMY 3
cials.” Id. In March 2013, Ms. Strickland-Donald pur-
sued another avenue for obtaining reclassification when
she apprised a senior rater about the actions taken in
2010. Id. Ms. Strickland-Donald subsequently forwarded
her communications with the senior rater to her new first-
line supervisor, Edward Johnson. Id. Mr. Johnson in-
formed Ms. Strickland-Donald that he would discuss her
reclassification with the Civilian Personnel Advisory
Center (“CPAC”). Id. No reclassification occurred as a
result of these efforts. Id. at 33–34.
In July 2014, through the Army’s Priority Placement
Program, Ms. Strickland-Donald received a new job in
Fort Leavenworth, Kansas, as an Audiovisual Production
Specialist. Id. at 34. This position was ranked at the GS-
09 level, but Ms. Strickland-Donald retained a GS-11
level salary. Id.
Frustrated by an inability to secure a reclassification,
Ms. Strickland-Donald filed a complaint with the United
States Office of Special Counsel (“OSC”), and, after ex-
hausting OSC procedures, she appealed to the MSPB. Id.
at 49–52. Ms. Strickland-Donald alleged that she made
protected disclosures while stationed in South Korea and
that the Army retaliated by not promoting her to the GS-
12 level. See id. at 34, 49–52. These protected disclosures
included:
(1) on March 2, 2011, [Ms. Strickland-Donald]
emailed [Mr. Mitchell] stating that two employees
complained to her that an email [Mr. Mitchell]
had sent them used a “demeaning and intimidat-
ing” tone, and that she had personally experienced
[Mr. Mitchell]’s “harsh and demeaning” communi-
cation style, which “created a hostile working en-
vironment” . . . ; (2) in March 2013, [Ms.
Strickland-Donald] reported to the Inspector Gen-
eral [] that [Mr. Mitchell] had abused his authori-
ty by being abusive towards employees; (3) in
4 STRICKLAND-DONALD v. DEP’T OF THE ARMY
November 2011, [Ms. Strickland-Donald] reported
to [Mr. Mitchell], [Deputy Garrison Commander
Mark Cox], and others, that the resource manager
for Camp Humphreys was improperly diverting
funds from VISC to the rest of Camp Humphreys[]
. . . ; (4) sometime after November 2012, [Ms.
Strickland-Donald] reported to her then first-line
supervisor, the Security Operations Manager, and
the Chief of Staff that two directorates [the Public
Affairs Office and the VISC] were [“]illegally
meshed[”]; and (5) in February 2013, [Ms. Strick-
land-Donald] reported to [Mr. Cox], [Mr. Johnson],
and others, that Wi-Fi equipment was illegally in-
stalled on Government computers at Camp Hum-
phreys.
Id. at 34–35 (citations and footnotes omitted). Ms. Strick-
land-Donald contends that the Army should have promot-
ed her “from October 2010 to present.” Id. at 34.
In an Initial Decision, the Administrative Judge
(“AJ”) determined that Ms. Strickland-Donald “failed to
prove her prima facie claim of whistleblower retaliation”
and therefore denied her request for corrective action. Id.
at 8. Specifically, for events in 2010, the AJ concluded
that “all critical [Army] decisions related to [her] efforts to
be promoted occurred in 2010 and predated her whistle-
blowing; as such, her whistleblowing could not have been
a contributing factor to the [Army]’s 2010 decisions.” Id.
The AJ further found that, even if Ms. Strickland-Donald
had proven the necessary elements to demonstrate retali-
ation, “the problem remains that there is still no record
evidence that [Mr.] Mitchell ever changed his mind and
obstructed a promotion for” Ms. Strickland-Donald—i.e.,
committed an adverse action. Id. at 14. For events that
occurred after 2010, the AJ assumed the alleged disclo-
sures were made and concluded that the “challenged
events occurring after 2010” “were not concrete personnel
actions that could form the basis of a whistleblower
STRICKLAND-DONALD v. DEP’T OF THE ARMY 5
retaliation claim.” Id. at 8 (citations omitted). “[N]o
concrete personnel action or other identifiable steps were
taken, or not taken, related to [Ms. Strickland-Donald’s]
promotion in 2011 and thereafter” and therefore “her
disclosures were [not] a contributing factor in any [Army]
actions related to not promoting her.” Id. at 21 (emphases
and citation omitted). Ms. Strickland-Donald then filed a
petition for review requesting that the MSPB reconsider
the AJ’s Initial Decision.
The MSPB may grant petitions for review when the
claimant presents new or previously unavailable evi-
dence, the AJ’s decision is inconsistent with required
procedures, the AJ makes an error interpreting a law or
regulation or erroneously applies the law to the facts of
the case, or the AJ makes an erroneous finding of materi-
al fact. 5 C.F.R. § 1201.115(a)–(d) (2015). In its Final
Decision, the MSPB affirmed the Initial Decision in all
respects. Id. at 32, 40. The MSPB determined “the
protected disclosures alleged in this appeal all occurred in
March 2011 or thereafter. Thus, the [Army]’s failure to
upgrade [Ms. Strickland-Donald]’s position and promote
her beginning in December 2010, cannot have been due to
those disclosures.” Id. at 39 (footnotes and citation omit-
ted). Ms. Strickland-Donald timely filed an appeal to this
court. We have jurisdiction under 28 U.S.C. § 1295(a)(9)
(2012).
DISCUSSION
I. Standard of Review and Legal Standard
This court affirms the MSPB’s decision unless, inter
alia, it is “unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c)(3) (2012). “Substantial evidence is more than a
mere scintilla” of evidence, Consol. Edison Co. of N.Y. v.
N.L.R.B., 305 U.S. 197, 229 (1938), but “less than the
weight of the evidence,” Consolo v. Fed. Mar. Comm’n,
383 U.S. 607, 620 (1966) (citations omitted).
6 STRICKLAND-DONALD v. DEP’T OF THE ARMY
II. Substantial Evidence Supports the MSPB’s Final
Decision
Certain Federal agencies, including the Army, are
“prohibited from taking a personnel action against an
employee for” making a disclosure protected by the WPA
(i.e., whistleblowing). Chambers v. Dep’t of Interior, 602
F.3d 1370, 1375 (Fed. Cir. 2010) (citation omitted); see
King v. Dep’t of Army, 602 F. App’x 812, 813 (Fed. Cir.
2015) (unpublished) (reviewing whistleblower claim made
against the Army). An employee, like Ms. Strickland-
Donald, may bring an IRA appeal to the MSPB alleging
that a “personnel action” was taken in retaliation for
making a protected disclosure. 5 U.S.C. § 1221(a).
A petitioner bears the initial burden of demonstrating
“by a preponderance of the evidence that the disclosure
was ‘a contributing factor’ in the agency’s personnel
action.” Kewley v. Dep’t of Health & Human Servs., 153
F.3d 1357, 1361 (Fed. Cir. 1998). Specifically, the peti-
tioner must demonstrate that (1) she made “a disclosure
or [performed a] protected activity described under” 5
U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), and (2)
the disclosure “was a contributing factor in the personnel
action which was taken or is to be taken against” the
employee, which can be shown through circumstantial
evidence. 5 U.S.C. § 1221(e)(1). If the petitioner satisfies
this burden, then the relevant agency must “demon-
strate[] by clear and convincing evidence that it would
have taken the same personnel action in the absence of
such disclosure.” Id. § 1221(e)(2).
Ms. Strickland-Donald argues that the Initial and Fi-
nal Decisions “did not encompass all of the facts or evi-
dence and [the MSPB] ignored all violations which should
have been addressed” when reviewing her claims. Pet’r’s
Br. 2 (citations omitted). We do not agree. In construct-
ing the Initial and Final Decisions, the MSPB “has broad
discretion to determine what the opinion should contain
STRICKLAND-DONALD v. DEP’T OF THE ARMY 7
and in what detail.” Lowder v. Dep’t of Homeland Sec.,
504 F.3d 1378, 1383 (Fed. Cir. 2007). “The failure to
discuss particular contentions in a case . . . does not mean
that the tribunal did not consider them in reaching its
decision.” Id. (citations omitted); see Vick v. Dep’t of
Transp., 545 F. App’x 986, 991 (Fed. Cir. 2013) (un-
published) (“[T]his court presumes—absent specific evi-
dence to the contrary—that the [MSPB] reviews all
evidence presented unless [it] explicitly expresses other-
wise.” (citation omitted)). The AJ identified record evi-
dence that was relevant to Ms. Strickland-Donald’s
appeal, within the relevant statutory framework, and
properly considered this evidence in reaching the final
determination. See Resp’t’s App’x 7–30. So too did the
MSPB. Id. at 31–40. Neither the AJ nor the MSPB
needed to do more.
Ms. Strickland-Donald next contends the AJ erred in
his credibility determinations and weighing testimony.
Pet’r’s Br. 12–13, 24–30. This court has previously held
that credibility determinations made by the MSPB are
“virtually unreviewable.” Hambsch v. Dep’t of Treasury,
796 F.2d 430, 436 (Fed. Cir. 1986) (citations omitted); see
Anderson v. City of Bessemer City, 470 U.S. 564, 575
(1985) (“[W]hen a trial judge’s finding is based on his
decision to credit the testimony of one of two or more
witnesses, each of whom has told a coherent and facially
plausible story that is not contradicted by extrinsic evi-
dence, that finding, if not internally inconsistent, can
virtually never be clear error.” (citations omitted)). The
AJ correctly identified and applied the applicable legal
framework under which credibility determinations must
be made. See Resp’t’s App’x 10–11. Ms. Strickland-
Donald does not identify, nor do we find, anything in the
record to justify reconsidering the AJ’s determinations.
Ms. Strickland-Donald also argues the AJ and MSPB
“erred by stating all [Army] decisions predate[] the Whis-
tleblowing 2010 timeframe.” Pet’r’s Br. 13. She does not,
8 STRICKLAND-DONALD v. DEP’T OF THE ARMY
however, identify record evidence in support of her argu-
ment, and such unsubstantiated claims cannot serve as a
basis to establish MSPB error. See, e.g., Poett v. Merit
Sys. Prot. Bd., 360 F.3d 1377, 1381 (Fed. Cir. 2004) (“un-
substantiated” assertions do not equate to evidence).
In any event, substantial evidence supports the AJ’s
findings. See Resp’t’s App’x 13–20 (AJ’s analysis that Ms.
Strickland-Donald’s disclosures were not a contributing
factor in the Army’s actions in 2010 related to her position
grading). In discussing the Army’s actions in 2010, the
AJ determined “the only disclosures about [Mr.] Mitchell
that I found [Ms. Strickland-Donald] exhausted at OSC
were her March 2, 2011 email to [Mr.] Mitchell confront-
ing him about some of his behavior and a disclosure to the
Inspector General.” 1 Id. at 14 (citation omitted); see id. at
39 n.11 (MSPB stating the AJ did not err in “consider[ing]
the pre-March 2011 disclosures” and finding these disclo-
sures were “not properly exhaust[ed]” with OSC). After
reviewing the relevant evidence and testimony, the AJ
found “preponderant evidence that in 2010[] [Mr.] Mitch-
ell advocated for CPAC to either upgrade her position as a
GS-12 or otherwise to declare that she was performing
GS-12 duties, but that [Mr.] Mitchell was not successful
in that effort.” Id. at 20; see id. at 16–20 (evidence and
testimony considered by the AJ in reaching the conclusion
that Mr. Mitchel did not waver in his support of the Army
promoting Ms. Strickland-Donald); Id. at 37 (MSPB
affirming the AJ’s determination). Thus, we find no err in
the AJ’s and the MSPB’s determinations.
Finally, Ms. Strickland-Donald argues that her
“rights to due process under the Fifth [] and Fourteenth []
1 Absent a right to appeal directly to the MSPB, the
WPA requires each petitioner to exhaust her administra-
tive remedies with the OSC before appealing to the
MSPB. 5 U.S.C. § 1214(a)(3).
STRICKLAND-DONALD v. DEP’T OF THE ARMY 9
Amendments were violated.” Pet’r’s Br. 4. However, Ms.
Strickland-Donald does not identify the particular actor(s)
and action(s) that caused the alleged violations. Without
more, we find her arguments waived. See SmithKline
Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed.
Cir. 2006) (holding that “‘[w]hen a party includes no
developed argumentation on a point . . . we treat the
argument as waived’” (quoting Anderson v. City of Bos.,
375 F.3d 71, 91 (1st Cir. 2004))).
CONCLUSION
We have considered Ms. Strickland-Donald’s remain-
ing arguments and find them unpersuasive. Accordingly,
the Final Decision of the Merit Systems Protection Board
is
AFFIRMED
COSTS
Each party shall bear its own costs.