Case: 20-1138    Document: 26     Page: 1   Filed: 06/01/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                   SONYA GIDDINGS,
                       Petitioner

                             v.

       SOCIAL SECURITY ADMINISTRATION,
                     Respondent
               ______________________

                        2020-1138
                  ______________________

    Petition for review of the Merit Systems Protection
 Board in No. PH-1221-19-0122-W-1.
                 ______________________

                   Decided: June 1, 2020
                  ______________________

    SONYA GIDDINGS, Philadelphia, PA, pro se.

     DANIEL S. HERZFELD, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent. Also represented by JOSEPH H.
 HUNT,     ALLISON     KIDD-MILLER,     ROBERT     EDWARD
 KIRSCHMAN, JR.
                   ______________________

    Before MOORE, TARANTO, and CHEN, Circuit Judges.
Case: 20-1138    Document: 26     Page: 2    Filed: 06/01/2020




 2                                           GIDDINGS   v. SSA



 PER CURIAM.
     Sonya Giddings petitions for review of a Merit Systems
 Protection Board decision concluding that the Social Secu-
 rity Administration proved that it would not have selected
 Ms. Giddings for a position vacancy even in the absence of
 her protected activity under the Whistleblower Protection
 Act. R.A. 1–20. 1 Because the Board’s decision was sup-
 ported by substantial evidence, we affirm.
                        BACKGROUND
     On May 1, 2018, Ms. Giddings applied for the position
 of Social Insurance Specialist (Claims Specialist) in the
 Mount Laurel and Trenton SSA Field Offices. R.A. 5. On
 Ms. Giddings’ interview day, the managers did not know
 she was in the waiting area at her scheduled interview
 time. R.A. 6. When district manager Keila Bragg learned
 that Ms. Giddings was there, she notified the interviewers,
 District Manager James Wallace and Assistant District
 Manager Antoinette Reilly for the Egg Harbor Field Office,
 and brought Ms. Giddings to the interview room. R.A. 6.
 Ms. Giddings was seen approximately 35 minutes late,
 which according to the agency was not uncommon as there
 were multiple interviews scheduled daily. R.A. 6. Mr. Wal-
 lace and Ms. Reilly interviewed Ms. Giddings according to
 the Competency Assessment Interview Process (CAIP)
 used for all applicants. Finding that she “did not demon-
 strate the judgment, clarity, empathy, and other qualities
 expected of a Claims Specialist,” they rated her with scores
 below the required threshold to pass the interview. R.A. 7;
 R.A. 168, 174.
     Ms. Giddings had previously applied, but was not se-
 lected, for a Claims Representative position at SSA in 2014.
 On August 2, 2014, she filed a complaint with the Office of


     1  Appendix citations are to Respondent’s corrected
 appendix, D.I. 22.
Case: 20-1138        Document: 26   Page: 3    Filed: 06/01/2020




 GIDDINGS   v. SSA                                            3



 Special Counsel (OSC), alleging that her former SSA su-
 pervisor, Carol Miles, committed a prohibited personnel
 practice by providing Ms. Giddings a negative reference for
 the Claims Representative position. R.A. 242–48. The
 OSC found Ms. Giddings’ complaint did not present “a vio-
 lation of 5 U.S.C. § 2302(b)(4) or any other prohibited ac-
 tivity.” See R.A. 250. The full Board dismissed her
 subsequent individual right of action (IRA) appeal for fail-
 ure to exhaust her remedies before the OSC. R.A. 251–52.
     In 2016, Ms. Giddings applied for a Claims Specialist
 position but was not selected. R.A. 259–60. She filed a
 second OSC complaint on May 23, 2016 alleging that SSA
 retaliated against her for protected activity, filing her first
 OSC complaint and IRA appeal, by not selecting her for the
 Claims Representative position. R.A. 255–69. She filed an
 IRA appeal on September 21, 2016. On January 26, 2017,
 an administrative judge (AJ) issued an initial decision
 holding that Ms. Giddings failed to demonstrate that her
 protected activity was a contributing factor in her non-se-
 lection and that the agency established by clear and con-
 vincing evidence that it would have taken the same action
 in the absence of the disclosure. R.A. 344–49. Ms. Gid-
 dings appealed to the full board on January 26, 2017, and
 that appeal is pending.
     After being informed that she was not selected for the
 present position, on August 23, 2018, Ms. Giddings filed a
 complaint with the OSC alleging that SSA committed “pro-
 hibited personnel practices” by retaliating against her for
 her prior “OSC and MSPB” case in not selecting her for the
 Claims Specialist position. See R.A. 2. On December 17,
 2018, the OSC found that the complaint “lack[ed] sufficient
 evidence to establish a violation of section 2302(b)(9)” and
 therefore OSC had insufficient evidence to conclude that
 the SSA retaliated against her. R.A. 297–98.
     On January 31, 2019, Ms. Giddings filed an IRA appeal
 with the MSPB alleging that she was not selected for a
Case: 20-1138    Document: 26      Page: 4    Filed: 06/01/2020




 4                                            GIDDINGS   v. SSA



 Claims Specialist position in reprisal for protected whistle-
 blowing activity. R.A. 7. On September 30, 2019, the ad-
 ministrative judge found that Ms. Giddings engaged in
 protected whistleblower activity when she filed complaints
 with the OSC on August 2, 2014 and May 23, 2016, and
 when she filed MSPB appeals on April 13, 2015 and Sep-
 tember 21, 2016. R.A. 10. The AJ further determined that
 Ms. Giddings demonstrated that her protected activity was
 a contributing factor in SSA’s decision not to select her for
 the position. R.A. 11. However, the AJ determined that
 SSA established, by clear and convincing evidence, that it
 would not have selected Ms. Giddings for the Claims Spe-
 cialist position even in the absence of her protected activi-
 ties under 5 U.S.C. § 2302(b)(9). R.A. 1, 12. The decision
 became final on November 4, 2019, and Ms. Giddings filed
 a petition for review with this court on November 12, 2019.
                         DISCUSSION
      We will set aside a final decision of the Board only if
 the decision is: “(1) arbitrary, capricious, an abuse of dis-
 cretion, or otherwise not in accordance with law; (2) ob-
 tained without procedures required by law, rule, or
 regulation having been followed; or (3) unsupported by sub-
 stantial evidence.” 5 U.S.C. § 7703(c). The Board uses the
 following factors to determine whether an agency has es-
 tablished that it would have taken the same personnel ac-
 tion in the absence of protected activity: (1) “the strength
 of the agency’s evidence in support of its personnel action;”
 (2) “the existence and strength of any motive to retaliate on
 the part of the agency officials who were involved in the
 decision;” and (3) “any evidence that the agency takes sim-
 ilar actions against employees who are not whistleblowers
 but who are otherwise similarly situated.” Carr v. Soc. Se-
 curity Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).
    Ms. Giddings argues that the Board incorrectly deter-
 mined that SSA showed that it would not have selected Ms.
 Giddings for the Claims Specialist position, even absent
Case: 20-1138        Document: 26   Page: 5   Filed: 06/01/2020




 GIDDINGS   v. SSA                                          5



 her whistleblowing activity. Petitioner Br. 3–5. We hold
 that substantial evidence supports the Board’s determina-
 tion. R.A. 12–19.
      As to Carr factor 1, Ms. Giddings argues that the
 agency did not provide clear and convincing evidence that
 it did not engage in whistleblowing retaliation. Petitioner
 Br. 4. She argues that Mr. Wallace and Mrs. Reilly per-
 jured themselves by submitting declarations inconsistent
 with their interview notes, and that the delay in beginning
 her interview was unjustified. Id. Substantial evidence
 supports the Board’s finding that the agency presented suf-
 ficient evidence supporting the personnel action. R.A. 13.
 The agency “established a detailed plan” to fill the Claims
 Specialist position, including posting a vacancy announce-
 ment, compiling a list of applicants meeting minimum
 qualifications, and setting up interviews with each quali-
 fied applicant to interview 85 applicants over one week.
 R.A. 13–14; R.A. 71–72. Mr. Wallace and Ms. Reilly pro-
 vided declarations that they followed the CAIP in inter-
 viewing Ms. Giddings. R.A. 168, 174. They stated that
 they rated Ms. Giddings with scores below the threshold
 because, among other reasons, her answers were “at times
 incomplete and off topic” and she “did not demonstrate the
 judgment, clarity, empathy, and other qualities expected of
 a Claims Specialist.” R.A. 168, 174; R.A. 15–17. Therefore,
 Ms. Giddings did not pass the interview and was not eligi-
 ble for the position.
     As to Carr Factor 2, Ms. Giddings asserts that the
 agency had a motive to retaliate due to the multiple MSPB
 and OSC complaints she has filed. Petitioner Br. 4. She
 contends she sent mass emails to multiple officials inform-
 ing them of her complaints. Substantial evidence supports
 the Board’s decision that Ms. Bragg, Mr. Wallace, and Ms.
 Reilly lacked a motive to retaliate against Ms. Giddings.
 R.A. 18–19. There is no evidence that Mr. Wallace or Ms.
 Reilly had a retaliatory motive as neither was involved in
 any prior appeals or complaints, and no appeals or
Case: 20-1138    Document: 26     Page: 6    Filed: 06/01/2020




 6                                           GIDDINGS   v. SSA



 complaints were considered in her interview evaluation.
 R.A. 171–72, 177. Even though Ms. Bragg provided a dec-
 laration in Ms. Giddings’ MSPB appeal, Ms. Bragg also in-
 cluded Ms. Giddings as an applicant to be interviewed and
 requested that Ms. Giddings’ interview be scheduled. R.A.
 105–06. Ms. Giddings blames Ms. Bragg for her late inter-
 view start time, but it was not unusual for interviews to be
 late. R.A. 186. And when Ms. Bragg learned of Ms. Gid-
 dings arrival, she notified the interviewers and Ms. Gid-
 dings was escorted to her interview.
      As to Carr Factor 3, Ms. Giddings argues that the
 Board erred because none of the selected applicants were
 known whistleblowers. Petitioner Br. 4. But this factor
 considers whether the agency “takes similar actions
 against employees who are not whistleblowers but who are
 otherwise similarly situated.” Non-whistleblower appli-
 cants who failed the interviews were also not selected. R.A.
 73. Forty applicants passed and eighty four applicants
 failed. R.A. 73. Therefore, the Board’s finding that Ms.
 Giddings was treated similarly to other applicants not en-
 gaged in protected activity was supported by substantial
 evidence.
                        CONCLUSION
      The Board’s determination that the SSA would not
 have selected Ms. Giddings for the position even absent
 protected activity was supported by substantial evidence.
 See R.A. 19–20. We have considered the parties’ remaining
 arguments and find them unpersuasive. Accordingly, we
 affirm.
                        AFFIRMED
