Sonya Giddings v. Social Security Administration
Background
- Appellant Sonya Giddings, a former Social Security Administration employee, alleged her supervisor gave a bad reference that prevented her selection for a Claims Representative position.
- Giddings filed a disclosure complaint with the Office of Special Counsel (OSC); OSC closed that file, finding no violation of 5 U.S.C. § 2302(b)(4) or other prohibited activity.
- While OSC’s initial disclosure matter was pending, Giddings filed an individual right of action (IRA) appeal with the Merit Systems Protection Board (MSPB) alleging reprisal for her OSC disclosure.
- The administrative judge found a nonfrivolous allegation that the nonselection was retaliatory and concluded the Board had jurisdiction under the Whistleblower Protection Enhancement Act provisions (5 U.S.C. § 2302(b)(8), (b)(9)).
- On review the Board vacated the initial decision and dismissed the appeal for lack of jurisdiction because Giddings failed to show she exhaustively pursued corrective-action remedies with OSC by filing a retaliation complaint and obtaining OSC’s termination notice or waiting 120 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB has jurisdiction over IRA appeal absent OSC exhaustion | Giddings argued she made a protected disclosure to OSC and brought IRA appeal while OSC matter pending | Agency argued appellant did not exhaust OSC remedies for retaliation claims, so MSPB lacked jurisdiction | Held: MSPB lacks jurisdiction; appellant failed to prove she sought corrective action from OSC re: retaliation |
| Whether disclosure to OSC alone satisfies IRA exhaustion requirement | Giddings relied on her disclosure complaint as the protected activity and implied it sufficed | Agency contended disclosure is protected activity but exhaustion requires a separate OSC retaliation complaint seeking corrective action | Held: Disclosure is protected, but exhaustion requires filing a retaliation complaint and OSC termination or 120-day lapse |
| Whether OSC closure of disclosure file estops Board jurisdiction | Giddings relied on OSC’s closure of the disclosure complaint as resolution | Agency said OSC’s finding on disclosure does not substitute for a retaliation corrective-action request | Held: OSC closure of the disclosure complaint did not satisfy the requirement to seek corrective action for retaliation claims |
| Whether statutory/precedential exhaustion requirement was met here | Giddings argued she followed OSC process; AJ previously found nonfrivolous allegations | Agency highlighted lack of evidence of retaliation complaint or OSC termination/120 days | Held: No evidence appellant filed retaliation complaint with OSC; dismissal for lack of jurisdiction affirmed |
Key Cases Cited
- Corthell v. Department of Homeland Security, 123 M.S.P.R. 417 (discusses IRA jurisdiction and exhaustion)
- Linder v. Department of Justice, 122 M.S.P.R. 14 (standards for nonfrivolous allegations in IRA appeals)
- Yunus v. Department of Veterans Affairs, 242 F.3d 1367 (Fed. Cir.) (exhaustion requirement for OSC remedies in whistleblower context)
- Simnitt v. Department of Veterans Affairs, 113 M.S.P.R. 313 (addresses OSC complaint and 120-day rule)
- Miller v. Federal Deposit Insurance Corporation, 122 M.S.P.R. 3 (lack of OSC corrective-action filing defeats MSPB jurisdiction)
- Serrao v. Merit Systems Protection Board, 95 F.3d 1569 (Fed. Cir.) (importance of seeking corrective action with OSC)
- Morrison v. Department of the Army, 77 M.S.P.R. 655 (legislative history and OSC’s role in informal settlement/investigation)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir.) (timeliness rules for court review)