NOTE: This disposition is nonprecedential.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, Washington, 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: 1 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 Security 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 supported 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. Wallace and Ms. Reilly interviewed Ms. Giddings according to 

the Competency Assessment Interview Process (CAIP)

used for all applicants. Finding that she “did not demonstrate 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 selected, 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: 2 Filed: 06/01/2020
GIDDINGS v. SSA 3

Special Counsel (OSC), alleging that her former SSA supervisor, 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 violation of 5 U.S.C. § 2302(b)(4) or any other prohibited activity.” See R.A. 250. The full Board dismissed her 

subsequent individual right of action (IRA) appeal for failure 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-selection and that the agency established by clear and convincing evidence that it would have taken the same action

in the absence of the disclosure. R.A. 344–49. Ms. Giddings 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 “prohibited 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 

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4 GIDDINGS v. SSA

Claims Specialist position in reprisal for protected whistleblowing activity. R.A. 7. On September 30, 2019, the administrative 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 September 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 Specialist position even in the absence of her protected activities 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 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). The Board uses the 

following factors to determine whether an agency has established that it would have taken the same personnel action 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 similar actions against employees who are not whistleblowers 

but who are otherwise similarly situated.” Carr v. Soc. Security Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999). 

Ms. Giddings argues that the Board incorrectly determined that SSA showed that it would not have selected Ms. 

Giddings for the Claims Specialist position, even absent 

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GIDDINGS v. SSA 5

her whistleblowing activity. Petitioner Br. 3–5. We hold 

that substantial evidence supports the Board’s determination. 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 perjured 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 sufficient evidence supporting the personnel action. R.A. 13. 

The agency “established a detailed plan” to fill the Claims 

Specialist position, including posting a vacancy announcement, compiling a list of applicants meeting minimum 

qualifications, and setting up interviews with each qualified applicant to interview 85 applicants over one week. 

R.A. 13–14; R.A. 71–72. Mr. Wallace and Ms. Reilly provided declarations that they followed the CAIP in interviewing 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 eligible 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 informing 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 

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6 GIDDINGS v. SSA

complaints were considered in her interview evaluation. 

R.A. 171–72, 177. Even though Ms. Bragg provided a declaration in Ms. Giddings’ MSPB appeal, Ms. Bragg also included 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 interview start time, but it was not unusual for interviews to be 

late. R.A. 186. And when Ms. Bragg learned of Ms. Giddings arrival, she notified the interviewers and Ms. Giddings 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 applicants 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 engaged 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

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