Sonya Giddings v. Social Security Administration
Background
- Appellant Sonya Giddings, a former SSA employee, alleged her supervisor gave a bad reference that obstructed her ability to compete for a Claims Representative position.
- Giddings filed a disclosure complaint with the Office of Special Counsel (OSC) and, while that complaint was pending, filed an individual right of action (IRA) appeal with the Merit Systems Protection Board (MSPB) alleging retaliation.
- OSC closed its file on the disclosure complaint, concluding the evidence did not show a violation of 5 U.S.C. § 2302(b)(4) or other prohibited activity.
- The administrative judge found Giddings made a nonfrivolous allegation of reprisal and initially concluded the Board had jurisdiction under the Whistleblower Protection Enhancement Act (WPEA) provisions for IRA appeals.
- On review, the Board determined Giddings failed to show she exhausted OSC remedies for a retaliation complaint (i.e., she did not file an OSC complaint seeking corrective action for retaliation or show OSC terminated such an investigation or 120 days had passed).
- Because exhaustion of OSC remedies is statutory prerequisite for IRA jurisdiction, the Board vacated the initial decision and dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB has jurisdiction over the IRA appeal | Giddings argued MSPB may hear her retaliation claim after filing with OSC and because OSC closed its disclosure file | Agency argued Giddings did not exhaust OSC remedies for retaliation, so MSPB lacks jurisdiction | Held: No jurisdiction — Giddings failed to show she sought corrective action from OSC for retaliation or met termination/120-day exhaustion rule |
| Whether filing a disclosure complaint alone satisfies the OSC-exhaustion requirement for an IRA | Giddings relied on her OSC disclosure complaint and OSC’s closure of that file | Agency contended disclosure complaint alone is insufficient; a separate retaliation complaint seeking corrective action is required | Held: Disclosure alone is insufficient; plaintiff must file a retaliation complaint seeking corrective action and await OSC termination or 120 days |
| Whether the AJ’s jurisdictional notice cured exhaustion defect | Giddings proceeded after the AJ found nonfrivolous allegations | Agency maintained statutory exhaustion is mandatory regardless of AJ findings | Held: Statutory exhaustion cannot be waived by the Board; absence of OSC retaliation complaint prevents jurisdiction |
| Availability of corrective relief absent OSC exhaustion | Giddings sought corrective action via MSPB | Agency opposed consideration without OSC exhaustion | Held: MSPB dismissed the appeal for lack of jurisdiction; corrective relief unavailable absent OSC exhaustion |
Key Cases Cited
- Yunus v. Department of Veterans Affairs, 242 F.3d 1367 (Fed. Cir.) (explains standards for exhaustion and Board jurisdiction in whistleblower/IRA context)
- Serrao v. Merit Systems Protection Board, 95 F.3d 1569 (Fed. Cir.) (recognizes importance of OSC opportunity to resolve complaints before Board review)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir.) (filing deadlines for appeals to the Federal Circuit are strictly enforced)