Mitzi G. Baker v. Social Security Administration

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MITZI G. BAKER,
Petitioner
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent
______________________
2024-1478
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-1221-19-0187-W-1.
______________________
Decided: October 15, 2024
______________________
MITZI G. BAKER, Chicago, IL, pro se.
MEREDYTH COHEN HAVASY , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD, P ATRICIA
M. MCCARTHY .
______________________
Before P ROST , T ARANTO, and STARK, Circuit Judges.
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BAKER v. SSA 2
P ER CURIAM .
In 2019, Mitzi G. Baker, an employee of the Social Se-
curity Administration (SSA) working at its Chicago Na-
tional Hearing Center, filed an Individual Right of Action
appeal with the Merit Systems Protection Board pursuant
to 5 U.S.C. § 1221. She complained that SSA had violated
5 U.S.C. § 2302(b)(8), (9) by taking five personnel actions
against her in reprisal for her filing earlier appeals with
the Board (in 2017 and 2018). She filed the 2019 Board
appeal after the Office of Special Counsel (OSC), in Decem-
ber 2018, had terminated its investigation of a complaint
she filed with OSC under 5 U.S.C. § 1214(a) as a prerequi-
site to filing the Board appeal. The assigned Board admin-
istrative judge, in an initial decision, denied Ms. Baker’s
request for corrective action, and the full Board, in its final
order, affirmed the initial decision, including the result,
while making a few modifications in the findings and ra-
tionale. Ms. Baker appeals that decision. We have juris-
diction, 28 U.S.C. § 1295(a)(9), and now affirm.
I
A
In February 2010, Ms. Baker started working as a Par-
alegal Specialist/Case Manager at SSA. In 2015, SSA, ac-
commodating her medical conditions, allowed her to work
at home for at least three days a week, specifying tasks that
could be performed fully at home.
In March 2016, SSA assigned Ms. Baker to be a case
manager for Administrative Law Judge (ALJ) Kramzyk on
a temporary basis. In response, she filed a complaint with
OSC, alleging that the assignment impaired the earlier
work-location accommodations and constituted retaliatory
action. After OSC denied Ms. Baker’s request, she filed an
IRA appeal to the Board in 2017. The assigned Board ad-
ministrative judge, in an initial decision, denied relief,
Baker v. SSA, CH-1221-17-0318-W-1, 2018 WL 7635920
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BAKER v. SSA 3
(M.S.P.B. Mar. 15, 2018), but the full Board vacated the
initial decision and remanded for a new hearing before a
different administrative judge, Baker v. SSA, CH-1221-17-
0318-W-1, 2022 M.S.P.B. 27, 2022 WL 3129026, at *1, ¶ 1
(M.S.P.B. Aug. 4, 2022). Meanwhile, in 2018, Ms. Baker,
after exhausting her remedies with OSC, filed another IRA
appeal with the Board, complaining that SSA had retali-
ated against her for the previous appeal by assigning her a
performance evaluation for fiscal year 2017 that she said
was too low; but the assigned Board administrative judge
denied relief. Baker v. SSA, No. CH-1221-18-0412-W-1,
2020 WL 231221 (M.S.P.B. Jan. 10, 2020).
B
On October 29, 2018, Ms. Baker filed a third com-
plaint—the complaint underlying this case—with OSC, al-
leging that SSA management had retaliated against her
because of her previous appeals. After OSC terminated its
inquiry of the third complaint, Ms. Baker filed an IRA ap-
peal with the Board, alleging that SSA took five personnel
actions against her in retaliation: (1) subjecting her to a
hostile work environment, (2) not selecting her for a 120-
day supervisory detail in June 2018, (3) denying her a per-
formance award for fiscal year 2017, (4) issuing two perfor-
mance ratings of 3 (successful) instead of 5 (outstanding)
on her fiscal year 2018 performance evaluation, and (5) is-
suing her an official reprimand in September 2018.
The record reflects the following specific SSA actions.
SSA assigned Ms. Baker to work for ALJ Fernandez-Rice
in April 2018; transferred her to the Falls Church National
Hearing Center in July 2018; did not select her for a detail
in June 2018; denied her a fiscal year 2017 performance
award in July 2018; gave her ratings of 3 on her fiscal year
2018 performance evaluation in October 2018; and repri-
manded her officially in September 2018 for her unauthor-
ized disclosure of other individuals’ personally identifiable
information.
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BAKER v. SSA 4
The assigned Board administrative judge, in an initial
decision on September 29, 2021, denied Ms. Baker’s re-
quest for corrective action. Supplemental Appendix
(SAppx) at 1. The administrative judge reasoned that Ms.
Baker had shown that “she engaged in a protected activity
when she exercised her Board appeal rights related to
whistleblowing activity under Section 2302(b)(8).”
SAppx6. As to the five personnel actions, the administra-
tive judge rejected the charge of a hostile work environ-
ment, SAppx7–9, but found that SSA took the following
four personnel actions: non-selection for a 120-day detail;
denial of a performance award for fiscal year 2017; giving
ratings of 3 in her fiscal year 2018 performance evaluation;
and issuing an official reprimand, SAppx6–7. The admin-
istrative judge then found that, although Ms. Baker’s pro-
tected activity was a contributing factor in the personnel
actions taken against her, SAppx9–10, SSA proved by clear
and convincing evidence that it would have taken the four
personnel actions regardless of her protected activity,
SAppx11–17—so relief was denied.
Ms. Baker filed a petition for full Board review of the
initial decision. Appx1–25. The Board denied the petition
and affirmed the initial decision with three modifications
that did not alter the result. Thus, the Board found that
the second appeal, along with the first, constituted pro-
tected activity that was a contributing factor in personnel
actions. Appx4. In addition, while agreeing with the ad-
ministrative judge that Ms. Baker had met the OSC-
exhaustion requirement for only two events relevant to the
hostile-work-environment assertion—the April 2018 as-
signment to work with ALJ Fernandez-Rice and the July
2018 transfer to Falls Church, Virginia—the Board, unlike
the administrative judge, found that one of those events
(the July 2018 transfer) was a significant change in work-
ing conditions itself qualifying as a “personnel action” un-
der 5 U.S.C. § 2302(a). Appx6–11. And the Board
supplemented the administrative judge’s explanation of
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BAKER v. SSA 5
why SSA would have taken the same personnel actions in
the absence of the protected activities. Appx11–23. Be-
cause the Board agreed with the administrative judge’s
last finding (based on a supplemented explanation), the
Board denied relief.
Ms. Baker timely filed this appeal. We have jurisdic-
tion under 28 U.S.C. § 1295(a)(9).
II
This court may set aside the Board’s decision only if it
is “(1) arbitrary, capricious, an abuse of discretion, or oth-
erwise 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); Sistek v. Department of Veterans Affairs,
955 F.3d 948, 953 (Fed. Cir. 2020). The petitioner bears
the burden of establishing reversible error in the Board’s
final decision. Sistek, 955 F.3d at 953 (citing Fernandez v.
Department of the Army, 234 F.3d 553, 555 (Fed. Cir.
2000)). “We review the Board’s legal decisions de novo and
its findings of fact for substantial evidence.” McIntosh v.
Department of Defense, 53 F.4th 630, 638 (Fed. Cir. 2022).
“Substantial evidence consists of ‘such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.’” Frederick v. Department of Justice, 73 F.3d
349, 352 (Fed. Cir. 1996) (quoting Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)).
A
The Whistleblower Protection Act (WPA), as amended
by the Whistleblower Protection Enhancement Act
(WPEA), prohibits an agency from taking a personnel ac-
tion against an employee in retaliation for making a pro-
tected disclosure or engaging in protected activity. 5
U.S.C. § 2302(b)(8), (9). An employee like Ms. Baker may
file an Individual Right of Action (IRA) appeal invoking
that prohibition, but she must first exhaust her remedies
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BAKER v. SSA 6
with OSC. 5 U.S.C. § 1214(a); see Young v. Merit Systems
Protection Board, 961 F.3d 1323, 1328 (Fed. Cir. 2020). In
the IRA appeal, she must prove by a preponderance of the
evidence that (1) she made a disclosure or engaged in an
activity protected under the WPA; (2) her employing
agency took a “personnel action” as defined by the WPA;
and (3) the protected disclosure or activity was a contrib-
uting factor in the personnel action. 5 U.S.C §§ 1221(a),
1221(e)(1), 2302(b)(8), (9); see Sistek, 955 F.3d at 953. Cov-
ered personnel actions include a detail, transfer, or reas-
signment; a decision concerning pay, benefits, or awards;
disciplinary or corrective action; a performance evaluation;
or any other significant change in duties, responsibilities,
or working conditions. 5 U.S.C. § 2302(a)(2)(A). The em-
ployee may meet the contributing-factor requirement
through showing, by a preponderance of the evidence, that
(1) the official taking the personnel action knew of the pro-
tected disclosure or activity and (2) the time between the
protected disclosure or activity and the personnel action is
brief enough to allow a reasonable inference that the for-
mer contributed to the latter. 5 U.S.C. § 1221(e)(1); see
Miller v. Department of Justice, 842 F.3d 1252, 1256 (Fed.
Cir. 2016).
If the employee proves her prima facie case, the agency
may nevertheless prevail by presenting “clear and convinc-
ing evidence that it would have taken the same personnel
action in the absence of such disclosure” or protected activ-
ity. 5 U.S.C § 1221(e)(2); see Whitmore v. Department of
Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012). When deter-
mining whether the agency would have taken the same ac-
tions, the Board examines the following factors: “(1) the
strength of the agency’s evidence in support of its personnel
action; (2) the existence and strength of any motive to re-
taliate 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 whistleblow-
ers but who are otherwise similarly situated.” Carr v.
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BAKER v. SSA 7
Social Security Administration, 185 F.3d 1318, 1323 (Fed.
Cir. 1999) (numerals added). “Carr does not impose an af-
firmative burden on the agency to produce evidence with
respect to each and every one of the three Carr factors to
weigh them each individually in the agency’s favor.”
Whitmore, 680 F.3d at 1374. The Board’s determination is
reviewed on appeal to determine whether it is supported by
substantial evidence, considering the record as a whole, in-
cluding evidence that might detract from the finding ulti-
mately made. See Robinson v. Department of Veterans
Affairs, 923 F.3d 1004, 1019 (Fed. Cir. 2019); Whitmore,
680 F.3d at 1368.
In this court, Ms. Baker makes essentially three argu-
ments. We address them in turn.
B
Ms. Baker briefly challenges the Board’s determination
that, for her claim of a hostile work environment, she had
met the OSC-exhaustion requirement for only two events
making the environment a hostile one: the April 2018 as-
signment to work with ALJ Fernandez-Rice and the July
2018 transfer to Falls Church, Virginia. We see no reversi-
ble error. Of the several agency actions set forth in Ms.
Baker’s October 29, 2018 complaint to OSC, the Board
could reasonably deem only the two Board-specified events
as making the “environment” hostile (even if others were
personnel actions). And while Ms. Baker has referred here
and before the Board to other events as making the envi-
ronment hostile, the Board could reasonably conclude that
she has not identified where she presented those other
events to OSC; indeed, some of those events occurred after
OSC closed its investigation (and some were seemingly not
presented to the Board at all). Given the clear role of the
exhaustion requirement in requiring that OSC be given the
opportunity to investigate charges, this failure on Ms.
Baker’s part leaves her with no basis to upset the Board’s
finding that the exhaustion requirement restricted the
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BAKER v. SSA 8
hostile-work-environment claim to the two Board-specified
events.
C
Ms. Baker briefly suggests that the Board erred in con-
cluding that the April 2018 assignment to work with ALJ
Fernandez-Rice was not a “significant change in duties, re-
sponsibilities, or working conditions” under the pertinent
part of the statutory definition of “personnel action.” 5
U.S.C. § 2302(a)(2)(A)(xii). We see no reversible error. The
Board had ample evidence to support its finding that as-
signment to a particular ALJ was a familiar agency prac-
tice and that Ms. Baker had not proven how this
assignment was out of keeping with that practice or was a
demotion. Appx9–11.1 Ms. Baker has not provided any ba-
sis on appeal for disturbing those findings.
D
Ms. Baker focuses most of her attention in this court on
challenging the Board’s determination that the agency car-
ried its burden of proving that it would have taken the
identified personnel actions even if the protected disclo-
sures and activities at issue had not occurred. We see no
reversible error.
1 To the extent that Ms. Baker suggests here that
her reassignment was distinctive in violating an earlier
disability-accommodation measure the agency had adopted
for her benefit, she did not timely present that contention
to the Board in this proceeding. See SAppx9, 169 n.9.
Moreover, Ms. Baker asserted in this court, in her State-
ment Concerning Discrimination pursuant to Federal Cir-
cuit Rule 15(c), that she had not presented to the Board a
claim of disability discrimination. ECF No. 6.
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BAKER v. SSA 9
1
Challenging the Board’s finding that SSA showed that
it would not have selected her for the 120-day detail as a
supervisory case manager even in the absence of her pro-
tected activity, Ms. Baker makes several arguments. She
argues that the Board erred in multiple respects: by plac-
ing too much weight on her interpersonal skills ratings in
her previous performance reviews; by incorporating into
the Carr analysis her 2018 performance assessment, which
occurred after her supervisor became aware of the 2017 ap-
peal; by giving little weight to her 2019 performance
award, which took place after the detail; by ignoring her
previous work performance evaluations and associated
awards and recognitions; by finding without evidence that
the individual who was selected for the detail possessed
equal or superior credentials; and by giving little weight to
the connection between Ms. Baker’s conflicts with manage-
ment and her protected activities. She also argues, in dis-
cussing the second Carr factor, that the Board required her
to show retaliatory motive, in violation of the Supreme
Court’s recent decision in Murray v. UBS Securities, LLC,
601 U.S. 23 (2024), which involved the Sarbanes-Oxley Act
of 2002, 18 U.S.C. § 1541A. Finally, with respect to the
third Carr factor, she deems it important that SSA did not
identify instances of taking the same personnel action with
a non-whistleblower.
We see no basis for disturbing the Board’s finding
about the non-selection for the detail as a supervisory case
manager. Appx13–15. Regarding the first Carr factor,
there was substantial evidence of reasons for that non-se-
lection independent of the protected activity: Ms. Baker
was not the best-qualified applicant, and the agency saw
problems with her interpersonal skills, indicated by her
previous performance evaluations and her interactions
with ALJ Fernandez-Rice. See Appx13–14; SAppx78–81.
The Board considered detracting evidence, namely her
temporary supervisor’s positive April 2018 performance
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BAKER v. SSA 10
discussion notes and her 2019 performance evaluation in
which she received a rating of 5 for interpersonal skills, but
it did and reasonably could ultimately find that this evi-
dence did not outweigh SSA’s evidence that it would have
not selected Ms. Baker for the detail. Appx14.
Regarding the second Carr factor, the Board found that
Ms. Baker’s supervisors, who were named and implicated
by Ms. Baker’s 2017 Board appeal, may have had a per-
sonal or institutional motive to retaliate but that the
strength of any such motive was limited by the fact that no
evidence showed that the supervisors faced adverse conse-
quences of being disciplined due to Ms. Baker’s allegations.
Appx14–15; see Rickel v. Department of the Navy, 31 F.4th
1358, 1366 n.4 (Fed. Cir. 2022) (noting significance of this
limiting fact). Moreover, the Board did not impose on whis-
tleblower complainants a burden to show retaliatory mo-
tive: The only burden it imposed on Ms. Baker was to make
out the prima facie case (which does not require proof of
such a motive), which the Board held she did. To consider
the existence and strength of a retaliatory motive as a log-
ical aspect of assessing whether the agency had carried its
burden to prove that it would have taken the same action
in the absence of the protected activity is not to place a bur-
den of proving a retaliatory intent on the whistleblower
complainant. Murray, which does not arise under the
WPA, is not to the contrary even for the statute it involved.
Regarding the third Carr factor, the Board noted that
the agency had not selected certain other individuals for
the detail but that, without information about the whistle-
blower status of those individuals, this evidence did not
support the agency. Appx15. But the Board quite reason-
ably viewed this factor as having little weight compared to
the other evidence, which therefore controlled. Appx15; see
Rickel, 31 F.4th at 1364–66.
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BAKER v. SSA 11
2
Ms. Baker makes several arguments in challenging the
Board’s finding that SSA showed that it would have trans-
ferred her to the Falls Church, Virginia National Hearing
Center in July 2018 even in the absence of the protected
activity. Appx15–17. She cites the recent Supreme Court
decision in Muldrow v. City of St. Louis, Missouri, 601 U.S.
346 (2024), to argue that her transfer changed her status,
terms, conditions, and privileges of employment. Ms.
Baker repeats the arguments (discussed above) that the
Board, in its analysis of the second Carr factor, added in an
additional element related to the motive to retaliate and
that SSA produced no evidence regarding the third Carr
factor.
We see no basis for disturbing the Board’s determina-
tion on the July 2018 transfer. There was ample evidence
that the Falls Church National Housing Center required
additional staff, that Ms. Baker said that she did not want
to be assigned to ALJ Fernandez-Rice or any other ALJ,
and that ALJ Fernandez-Rice (to whom Ms. Baker had
been temporarily assigned in April 2018) was unhappy
with her interactions with Ms. Baker. See, e.g., SAppx64–
67, 78–81, 88, 90, 157. The propriety of relying on such
evidence for finding that the transfer was independent of
the protected activity is unaffected by the point in Muldrow
cited by Ms. Baker: Here, the Board agreed with Ms. Baker
that the July 2018 transfer was a significant change qual-
ifying as a “personnel action” under the WPA. Moreover,
the Board could reasonably find this first-factor analysis to
outweigh any role of the second and third Carr factors,
properly discounting the latter role for reasons similar to
those addressed above in discussing the detail issue.
3
Ms. Baker also challenges the Board’s finding that SSA
showed that it would have withheld a fiscal year 2017
Recognition of Contribution performance award even in the
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BAKER v. SSA 12
absence of the protected activity. Appx17–19. She argues
that the Board improperly relied on her supervisor’s affi-
davit and ignored evidence favorable to her position on this
issue, such as evidence that her supervisor had motive to
retaliate. And she repeats the points about the second and
third Carr factors that we have already discussed and re-
jected in addressing other personnel actions, points not ma-
terially different for the present issue.
Substantial evidence supports the Board’s reliance on
SSA’s legitimate reason to deny Ms. Baker the award—
that she had received a disciplinary action during fiscal
year 2017. See, e.g., SAppx45–54, 94–95. Although a su-
pervisor’s decision to withhold this award in light of an em-
ployee’s previous disciplinary actions is discretionary, Ms.
Baker’s supervisor sought guidance on whether withhold-
ing the award was appropriate, and she was told that it
would be. SAppx38, 91–92, 95, 157–58. Ms. Baker alleges
that evidence on the record detracts from SSA’s case, but
she does not identify any such record evidence. For this
personnel action, like the ones discussed above, the other
two Carr factors do not require a different overall finding
from the Board, which found some motive to retaliate, but
that the motive was slight because the supervisor who
withheld the award did not face adverse consequences due
to the 2017 Board appeal and was not involved in the ac-
tions that were the subject of the 2018 Board appeal.
Appx18. We conclude that the Board reasonably found the
first-factor analysis to determine the result of this agency-
rebuttal inquiry.
4
The Board found that SSA, even in the absence of the
protected activity, would have given Ms. Baker the ratings
of 3 it gave her on the fiscal year 2018 performance evalu-
ation. Appx19–21. For this performance evaluation, she
obtained ratings of 5 (outstanding) for the categories
“demonstrates job knowledge” and “achieves business
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BAKER v. SSA 13
results” and ratings of 3 (successful) for “interpersonal
skills” and “participation,” for an overall score of 4.
SAppx103–07. Ms. Baker argues that the Board did not
properly consider the record evidence and that SSA “estab-
lished a continuous pattern of retaliatory acts by manage-
ment” to dissuade her from engaging in protected activity.
Corrected Brief for Petitioner at 24. And she again con-
tends that the Board erred in adding a requirement to show
a motive to retaliate.
The Board had substantial evidence from which to
make its independence finding. The ratings of 3 for inter-
personal skills and participation were supported by various
email exchanges and previous performance evaluations.
Appx20; see, e.g., SAppx78–81, 83, 88. The Board also rea-
sonably found that while SSA management may have had
personal or institutional motives to retaliate, there is no
evidence that Ms. Baker’s supervisor, who performed this
personnel action, suffered adverse consequences, so any
motive was slight. SAppx20–21. In these circumstances,
the Board could reasonably find that the agency made its
rebuttal case despite the absence of significant Carr factor
three evidence supporting the agency, as previously dis-
cussed.
5
Finally, Ms. Baker contends that the Board erred in its
determination that SSA would have issued the September
2018 official reprimand in the absence of the protected ac-
tivity. Appx21–23. The basis for the reprimand was Ms.
Baker’s disclosure of personally identifiable information of
SSA claimants in multiple documents she submitted to the
Board as part of her June 2018 Board appeal. SAppx100.
Ms. Baker alleges that SSA should not have issued her the
reprimand since she took remedial steps—she redacted
and resent the documents. Moreover, she argues that dis-
ciplinary action for the disclosure was inappropriate be-
cause the Board is a secure partner of SSA and may receive
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BAKER v. SSA 14
personally identifiable information over email. And she re-
peats the arguments about the second and third Carr fac-
tors that she has made for the other personnel actions,
which we have already discussed.
Substantial evidence supports the Board’s finding that
SSA would have reprimanded Ms. Baker for her disclosure
of SSA claimants’ personally identifiable information even
in the absence of her protected activity. The evidence es-
tablished that SSA had a legitimate reason to issue the rep-
rimand: to discipline Ms. Baker for her disclosure of SSA
claimants’ information, including their names, phone num-
bers, and social security numbers, an event that Ms. Baker
herself does not deny. That disclosure violated agency pol-
icy, at least because the disclosure was not necessary or
even relevant to Ms. Baker’s Board appeal. See Appx21–
22; SAppx11–13, 57–58, 96–97. The disclosure was a vio-
lation even though Ms. Baker may have stemmed its future
effects by submitting redacted documents, and there was
evidence of the agency taking its nondisclosure policy very
seriously. See SAppx133–41 (showing that SSA repri-
manded National Hearing Center employees for just one
disclosure of personally identifiable information). Any se-
cure-partner relationship between SSA and the Board for
email, moreover, is immaterial, at least because Ms. Baker
hand-delivered documents with personally identifiable in-
formation to the Board. Appx22; SAppx11.
The Board could weigh the Carr factors overall as sup-
porting the agency on this issue, as on the previously dis-
cussed issues, for the reasons discussed above. As with
those issues, the Board found that Ms. Baker’s supervisor
could have had personal or institutional motive to retali-
ate, but that such motive was slight since there is no evi-
dence that she suffered adverse consequences from the
protective activity. Appx22–23. And the evidence on the
third Carr factor is at best neutral for Ms. Baker; indeed,
the Board found that it slightly favors the agency. Appx23.
In short, the Board’s finding that SSA would have taken
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BAKER v. SSA 15
the personnel action absent the protected activity is sup-
ported by substantial evidence.
III
For the foregoing reasons, we affirm the Board’s denial
of Ms. Baker’s request for corrective action in her Board
appeal.
The parties shall bear their own costs.
AFFIRMED
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