                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SONYA GIDDINGS,                                 DOCKET NUMBER
                  Appellant,                         PH-1221-15-0411-W-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: August 10, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Sonya Giddings, Philadelphia, Pennsylvania, pro se.

           Donald W. Taylor and Lauren Russo, Esquire, Philadelphia, Pennsylvania,
             for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied her request for corrective action. Generally, we grant petitions such as
     this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or

     *
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     regulation or the erroneous application of the law to the facts of the case; the
     administrative judge’s rulings during either the course of the appeal or the initial
     decision were not consistent with required procedures or involved an abuse of
     discretion, and the resulting error affected the outcome of the case; or new and
     material evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed.       Title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).           After fully
     considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2        The appellant applied for a GS-7 Veterans Service Representative position.
     On August 12, 2014, the appellant filed a complaint with the agency’s Office of
     Inspector General (OIG) alleging that the agency’s Philadelphia Regional
     Office’s Human Resources (HR) office was mishandling her application because
     she had been informed that her name was not on the certificate of eligibles. On
     that same day, an employee of the HR office, C.M., became aware of the
     appellant’s OIG complaint.      Subsequently, the agency placed the appellant’s
     name on the certificate of eligibles, and on September 18, 2014, the agency
     interviewed the appellant for the position.
¶3        On September 26, 2014, the Philadelphia Regional Office instructed agency
     personnel to make job offers for the Veterans Service Representative position.
     The appellant was not selected to receive an offer.         The appellant filed a
     complaint with the Office of Special Counsel (OSC) alleging that her
     nonselection was retaliation for filing the OIG complaint. The appellant filed this
     individual right of action (IRA) appeal after OSC closed its investigation. Initial
     Appeal File (IAF), Tab 1.
¶4        Because the appellant declined a hearing, IAF, Tab 31, the administrative
     judge issued an initial decision based on the written record, IAF, Tab 34, Initial
                                                                                         3

     Decision (ID).    He found that the appellant established that she engaged in
     activity protected under the Whistleblower Protection Enhancement Act (WPEA)
     by filing the OIG complaint. ID at 6. He also found the appellant established
     through the knowledge/timing test that the protected activity was a contributing
     factor to her nonselection by showing that C.M. was involved in processing the
     appellant’s application, had knowledge of the appellant’s OIG complaint, and the
     nonselection was made shortly after the appellant filed the complaint. ID at 6-8.
¶5         The administrative judge found, however, that the agency met its burden to
     show by clear and convincing evidence that it would not have selected the
     appellant in the absence of her protected activity. ID at 8-16. He found that the
     agency established that the appellant was not selected because she did not do well
     in her interview for the position. ID at 14. He also found that the agency showed
     that neither the interviewers nor the selecting official knew of the appellant’s OIG
     complaint, and these employees were not influenced in their decisions regarding
     the appellant by C.M. ID at 14-16.
¶6         In her petition for review, the appellant contends that C.M. must have
     influenced the interviewers’ ratings because C.M. was in contact with them on the
     day of the interview. Petition for Review File, Tab 1.
¶7         Under the WPEA, the Board has jurisdiction over an IRA appeal if the
     appellant has exhausted her administrative remedies before OSC and makes
     nonfrivolous allegations that (1) she made a protected disclosure described
     under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described
     under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or
     protected activity was a contributing factor in the agency’s decision to take or fail
     to take a personnel action as defined by 5 U.S.C. § 2302(a). Yunus v. Department
     of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Kerrigan v.
     Department of Labor, 122 M.S.P.R. 545, ¶ 10 n.2 (2015) (citing 5 U.S.C.
     §§ 1214(a)(3), 1221(e)(1)). Once an appellant establishes jurisdiction over her
     IRA appeal, she must prove by preponderant evidence that she made a protected
                                                                                        4

     disclosure and that it was a contributing factor to the personnel action, i.e., make
     a prima facie case.       Rebstock Consolidation v. Department of Homeland
     Security, 122 M.S.P.R. 661, ¶ 9 (2015).         As applicable here, the appellant
     established jurisdiction over her IRA appeal under the WPEA by making a
     nonfrivolous allegation that the agency took the personnel action of nonselection
     in reprisal for her disclosing information to the OIG. 5 U.S.C. § 2302(b)(9)(C).
     The parties are in agreement that the appellant disclosed information to the OIG.
     Further, the appellant’s nonselection occurred shortly after she contacted the
     OIG, and one of the agency employees involved in processing the appellant’s
     application knew of her OIG complaint. Based on the foregoing, we agree with
     the administrative judge that the appellant met her burden to prove her
     prima facie case.
¶8        When, as here, the appellant establishes a prima facie case, the agency must
     prove, by clear and convincing evidence, that it would have taken the same
     personnel   action   in   the   absence   of   the   protected   activity.   5 U.S.C.
     § 1221(e)(1)-(2); Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7
     (2015). In determining whether the agency has carried its burden, the Board will
     consider all the relevant facts and circumstances, including: (1) the strength of
     the agency’s evidence in support of its action; (2) the existence and strength of
     any motive to retaliate on the part of agency officials involved in the decision;
     and (3) any evidence that the agency takes similar actions against employees who
     are not whistleblowers but who are otherwise similarly situated. Carr v. Social
     Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999); Grubb v.
     Department of the Interior, 96 M.S.P.R. 377, ¶ 15 (2004).
¶9        We agree with the administrative judge that the agency met its burden to
     prove by clear and convincing evidence that it would have taken the same
     personnel action in the absence of the appellant’s complaint.                As the
     administrative judge found, the two agency managers who interviewed the
     appellant for the position provided a detailed explanation as to why the appellant
                                                                                      5

      was not selected. One stated that the appellant’s answers during the interview
      were not strong or detailed enough to support a referral for hire. IAF, Tab 19,
      Exhibit (Ex.) 9. The other stated that the appellant’s responses were incomplete,
      light on substance, and failed to provide thorough examples describing her
      professional experience which would better enable her to succeed in the position.
      Id., Ex. 10.    Both interviewers noted that the appellant failed to submit her
      writing sample on time. Id., Exs. 9-10. Further, both interviewers stated that
      they were unaware of the appellant’s OIG complaint.         Id.   The appellant’s
      speculative assertion in her petition for review that they must have known
      because they spoke with C.M. on the day of the interview is unavailing.
¶10        Also, there is no evidence that the interviewers or the selecting official,
      who also was unaware of the appellant’s OIG complaint, were biased against the
      appellant.     Further, there is no evidence that C.M. was biased against the
      appellant, and, in any event, there is no evidence that she influenced the
      interviewers or the selecting official, or manipulated the scoring process.
      Additionally, there were two nonselected applicants who did not file OIG
      complaints, indicating that other nonwhistleblowers were treated similarly. See
      Carr, 185 F.3d at 1323. Thus, we conclude that the administrative judge properly
      denied the appellant’s request for corrective action.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the U.S. Court
      of Appeals for the Federal Circuit.
            The court must receive your request for review no later than 60 calendar
      days after the date of this order.    See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
      Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
      has held that normally it does not have the authority to waive this statutory
      deadline and that filings that do not comply with the deadline must be dismissed.
      See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
                                                                                       6

      If you want to request review of the Board’s decision concerning your
claims   of    prohibited   personnel   practices   under   5    U.S.C.     § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11. Additional information about
other courts of appeals can be found at their respective websites, which can be
accessed through the link below:
      http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for your appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono        for   information       regarding     pro   bono
representation for Merit Systems Protection Board appellants before the Federal
                                                                                7

Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                           ______________________________
                                         Jennifer Everling
                                         Acting Clerk of the Board
Washington, D.C.
