Thompson v. Department of Housing & Urban Development ( 2005 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3208
BARBARA J. THOMPSON,
Petitioner,
v.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
Respondent.
____________________
DECIDED: November 1, 2005
____________________
Before NEWMAN, LOURIE, and RADER, Circuit Judges.
PER CURIAM.
Barbara J. Thompson petitions for review of the final decision of the Merit
Systems Protection Board dismissing her Individual Right of Action (“IRA”)
appeal for lack of jurisdiction and denying her request for corrective action for
nonselection for a promotion. Thompson v. Dep’t of Hous. & Urban Dev., No.
AT-1221-03-0411-W-2 (M.S.P.B. April 29, 2005). We affirm.
BACKGROUND
Barbara J. Thompson was employed as an Associate Community Builder
in the Columbia, South Carolina Office of the Department of Housing and Urban
Development (“HUD”). In April 2002, the Community Builder program was
abolished, and Thompson was transferred to the Multi-Family Division as a
Construction Analyst. On June 1, 2002, Thompson retired from HUD.
On June 16, 2001, Thompson filed an EEO complaint, alleging a hostile
work environment based on her race and gender. The AJ eventually dismissed
the complaint for lack of jurisdiction to allow her complaint to be heard by the
Board. Thompson filed two complaints at the Office of Special Counsel (“OSC”),
alleging retaliation for engaging in whistleblowing activity. Her claims were
terminated without remedying her complaints. Thompson then filed an IRA
appeal to the Board in August 2003. She contended that due to what she
considered intolerable work conditions she was forced to resign, and she claimed
she was retaliated against for reporting those conditions along with other
employee misconduct in violation of the Whistleblower Protection Act (“WPA”).
The AJ held a two-day hearing on the merits of her involuntary resignation
and whistleblower claims. Thompson argued that the following specific
circumstances showed a hostile work environment: (1) humiliation by being
included in a clerical staff meeting, (2) being forced to pay $60 for a meal and
being the only presenter required to work in the hallway, (3) fear of a supervisor,
Gregorie, because he pulled an imaginary gun on her in an intimidating manner,
and (4) the agency’s failure to address or remedy the decline in her health.
Thompson argued that due to those conditions, as well as others, she was forced
to retire. She further alleged that she reported some of the alleged hostile
conditions to an employee, Scioscia, and others, and because of the disclosures,
she was not selected for a promotion.
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With respect to her involuntary resignation claim, the AJ determined that
Thompson failed to establish by preponderant evidence that working conditions
were made so difficult by the agency that a reasonable person in her position
would have felt compelled to resign. The AJ found Thompson’s testimony of the
described events to be not credible in some instances and considered Thompson
to have overreacted in others. The AJ considered the totality of the
circumstances and determined that a reasonable person would have had a
choice whether to resign or not. Because Thompson did not prove that her
resignation was involuntary, the claim was dismissed for lack of jurisdiction.
As for her whistleblower claim, the AJ held that certain disclosures by
Thompson were not protected under the WPA. Scioscia, the recipient of her
disclosures, was not a supervisor. Since Scioscia was not in a position to correct
the abuse, and he did not report the disclosures to anyone else, the AJ found
that the disclosures did not qualify as protected disclosures under the WPA.
Also, Thompson failed to prove by preponderant evidence that her disclosures
were a contributing factor in her nonselection for the promotion. Furthermore,
even if Thompson established that they were a contributing factor, the agency
proved by clear and convincing evidence that it would have selected the other
candidate over Thompson in any event. Because Thompson did not establish
her claim of nonselection for a promotion, the AJ denied her request for
corrective action.
Thompson petitioned the full Board for review of her case in January
2004. In April 2005, the full Board denied Thompson’s petition for review, and
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the AJ’s decision became the Board’s final decision. See 5 C.F.R. § 1201.113(b).
Thompson timely appealed to this court. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a decision of the Board is
limited. We must affirm the Board’s decision unless it was “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c)
(2000); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
A board decision is unsupported by substantial evidence when it lacks “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933
(Fed. Cir. 1984) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 299
(1938)). Whether the Board has jurisdiction to adjudicate a particular appeal is a
question of law, which this court reviews without deference. Diefenderfer v. Merit
Sys. Prot. Bd., 194 F.3d 1275, 1277 (Fed. Cir. 1999).
On appeal, Thompson contends that the Board either misunderstood or
failed to consider several significant facts that support her claims, including the
alleged harassment and discriminatory treatment by Gregorie and others. She,
however, does not assert any particular error of law or procedure by the Board,
nor have we discerned any such error ourselves. Moreover, the Board’s
credibility determinations and the fact that Thompson’s disclosures were not
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made to anyone in a position to remedy her complaints are supported by
substantial evidence.
Thompson did appear before this Court to indicate how she had been
mistreated and how her claims were ignored within the agency. These are all
fact questions, however, and an appellate court is not in a position to appraise
the soundness of these assertions. Our role is to ascertain whether there was an
amount of evidence upon which a reasonable fact-finder could arrive at its
decision, and here there was. Accordingly, we affirm the decision of the Board.
No costs.
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