United States Court of Appeals for the Federal Circuit ______________________

JABEEN N. ABUTALIB, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2023-1400 ______________________

Petition for review of the Merit Systems Protection Board in No. CH-0752-22-0357-I-1. ______________________

Decided: January 28, 2025 ______________________

J. DEREK MCCORQUINDALE, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Reston, VA, argued for petitioner. Also represented by JAMESON KYLE GARDNER, LUKE HAMPTON MACDONALD.

STEPHEN FUNG, Office of the General Counsel, United States Merit Systems Protection Board, Washington, DC, argued for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________

Before CHEN, BRYSON, and STOLL, Circuit Judges. Case: 23-1400 Document: 54 Page: 2 Filed: 01/28/2025

2 ABUTALIB v. MSPB

BRYSON, Circuit Judge. Jabeen N. Abutalib, a physician with the Veterans Health Administration (“VHA”), sought corrective action from the Merit Systems Protection Board for personnel ac- tions she alleged to be in retaliation for the Equal Employ- ment Opportunity (“EEO”) complaint that she filed. The Board held that Dr. Abutalib failed to make a nonfrivolous showing that she had engaged in whistleblowing or other protected activity, and it therefore dismissed her appeal for lack of jurisdiction. We affirm. I Dr. Abutalib has worked at the Captain James A. Lov- ell Federal Health Care Center in Illinois since 2014. Dur- ing much of that time, she has worked in the Geriatrics and Extended Care Service (“GEC”) at the facility. She worked with Dr. William Cotter during some of that time, and he was her direct line supervisor in 2019. In July 2019, Dr. Abutalib filed an EEO complaint against Dr. Cotter and the VHA, complaining of a hostile work environment and unprofessional conduct by Dr. Cot- ter. 1 That complaint was initially settled in August 2019 in an agreement that, according to Dr. Abutalib, included a salary adjustment. App. 204. Dr. Abutalib states that when the salary adjustment was not forthcoming, she con- tinued to pursue her EEO complaint, claiming retaliation.

1 The record does not contain the text of Dr. Abu- talib’s EEO complaint. See Appellant’s Br. at 16. Dr. Abu- talib, however, characterizes her EEO complaint as having been “against Dr. Cotter and the VHA relating to unprofes- sional conduct and a hostile work environment.” Id. at 3. That characterization is consistent with Dr. Abutalib’s statements to the Office of Special Counsel, see App. 201, and her response to an order to show cause issued by the Board’s administrative judge, App. 204. Case: 23-1400 Document: 54 Page: 3 Filed: 01/28/2025

ABUTALIB v. MSPB 3

Id. In January 2020, her complaint was settled with an agreement having four components: (1) “Complete bian- nual pay review for 2019 and retroactively pay from August 2019 to present if warranted”; (2) “Investigate why physi- cian pay is not equal and take action if warranted to ensure standardization”; (3) “Investigate distribution of residency interviews between all GEC providers and ensure a stand- ardized process”; and (4) “Investigate how residents are as- signed and ensure standardized process to meet American College of Graduate Medical Education guidelines.” App. 211. 2 During the COVID-19 surge in March 2020, Dr. Abu- talib was asked to serve as a hospitalist to oversee acutely ill patients. In July 2020, her pay status was changed from Table 1