Mitzi Baker v. Social Security Administration

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MITZI BAKER,
Petitioner
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent
______________________
2024-2179
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-1221-18-0412-W-1.
______________________
Decided: March 10, 2025
______________________
M ITZI G. BAKER , Chicago, IL, pro se.
COLLIN T. M ATHIAS, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, ELIZABETH MARIE H OSFORD, PATRICIA M.
M C CARTHY.
______________________
Before PROST, LINN, and REYNA , Circuit Judges.
Case: 24-2179 Document: 27 Page: 1 Filed: 03/10/2025

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BAKER v. SSA 2
PER CURIAM.
Ms. Mitzi Baker appeals pro se a final order of the
Merit Systems Protection Board, which denied Ms. Baker’s
petition for review and affirmed the administrative judge’s
initial decision. For the following reasons, we affirm.
BACKGROUND
Since 2010, Ms. Baker worked as a case manager in the
U.S. Social Security Administration (“SSA”). SAppx1,
SAppx20.1 During the time relevant to this appeal, Ms.
Jamie Barton was Ms. Baker’s immediate supervisor.
SAppx2.
On April 17, 2017, Ms. Baker filed an individual right
of action (“IRA”) with the Merit Systems Protection Board
(“MSPB” or “Board”) alleging that the SSA retaliated
against her for her various protected disclosures. SAppx2,
SAppx20, (“April 2017 IRA Claim”). While the April 2017
IRA Claim was pending, Ms. Barton issued Ms. Baker’s
2017 annual performance appraisal, which was based on
four categories: “Interpersonal Skills,” “Participation,”
“Demonstrates Job Knowledge,” and “Achieves Business
Results.” SAppx34. For the former two categories, Ms.
Baker received a “3” and for the latter two, she received a
“5.” Id. This resulted in an overall “Summary Appraisal”
of “Successful Contribution.” Id. Ms. Baker received the
same individual ratings and overall summary appraisal in
her 2016 annual performance appraisal. SAppx44.
Ms. Baker then filed a complaint with the Office of Spe-
cial Counsel (“OSC”), arguing that her 2017 annual perfor-
mance appraisal was retaliation for her April 2017 IRA
1 “SAppx” refers to the supplemental appendix accom-
panying the appellee’s responding brief.
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BAKER v. SSA 3
Claim, a “protected activity.”2 SAppx56–75. No party dis-
putes that Ms. Baker’s April 2017 IRA Claim constituted a
protected activity. See Appellant Br. 10; Appellee Br. 4.
After review, OSC determined that Ms. Baker did not pro-
vide sufficient information or evidence to establish retalia-
tion. SAppx69, SAppx77. OSC closed Ms. Baker’s file but
informed her that she may seek corrective action from the
MSPB. SAppx77–78.
On June 1, 2018, Ms. Baker filed the instant appeal be-
fore the MSPB, arguing that her rating of “3” for the par-
ticipation category was retaliation for her April 2017 IRA
Claim. SAppx47–55. Ms. Baker requested that the SSA
take corrective action. SAppx21. In the Board’s initial de-
cision, the administrative judge (“AJ”) assigned to Ms.
Baker’s case denied her request for corrective action.
SAppx1. The AJ noted that Ms. Baker failed to show by
preponderant evidence that her protected activity was a
contributing factor in Ms. Barton’s decision to issue her a
“3” for the participation category. SAppx1, SAppx7. The
AJ credited Ms. Barton’s testimony that she was unaware
2 A “protected activity” refers to an activity protected
under the Whistleblower Protection Action (“WPA”), as
amended by the Whistleblower Protection Enhancement
Act, from employer retaliation, including an employee’s
“exercise of any appeal, complaint, or grievance right
granted by any law, rule, or regulation . . . with regard to
remedying a violation of paragraph (8)” of the statutory
provision. 5 U.S.C. § 2302(b)(9)(A). Paragraph 8 protects
from employer reprisal “any disclosure of information by
an employee” that she “reasonably believes evidences (i)
any violation of any law, rule, or regulation, or (ii) gross
mismanagement, a gross waste of funds, an abuse of au-
thority, or a substantial and specific danger to public
health or safety.” Id. § 2302(b)(8)(A)(i)–(ii).
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BAKER v. SSA 4
of Ms. Baker’s April 2017 IRA Claim at the time of evalu-
ating Ms. Baker’s performance. SAppx6–7.
Ms. Baker then filed a petition for review with the full
Board, which the Board denied. SAppx20, SAppx81–90.
The Board also affirmed the AJ’s initial decision, expand-
ing the AJ’s analysis in one limited respect. SAppx20. The
Board noted that the AJ only considered the
“knowledge/timing” test when determining whether Ms.
Baker carried her burden to prove retaliation.3 SAppx22.
The Board, however, explained that if a party fails to sat-
isfy the knowledge/timing test, the Board will consider
other evidence, such as evidence pertaining to the strength
or weakness of the agency’s reasons for taking the person-
nel action. Id. The Board then considered additional evi-
dence but still found no reason to disturb the AJ’s decision.
SAppx23. Finally, the Board considered and rejected Ms.
Baker’s various other arguments, such as bias and im-
proper venue. SAppx27.
Ms. Baker appeals. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
D ISCUSSION
This court’s review of Board decisions is limited. See
Rickel v. Dep’t of Navy, 31 F.4th 1358, 1363 (Fed. Cir.
2022). This court may only set aside the Board’s decision
if it was “(1) arbitrary, capricious, an abuse of discretion,
3 The knowledge/timing test refers to one way an in-
dividual can establish that her protected activity was a con-
tributing factor in the agency’s adverse personnel action.
See 5 U.S.C. § 1221(e)(1). Under this test, a party must
show that the official taking the personnel action knew of
the disclosure, and that the personnel action occurred
within a period of time such that a reasonable person could
conclude that the disclosure or activity was a contributing
factor. Id.
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BAKER v. SSA 5
or otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). The court reviews the Board’s legal con-
clusions de novo and its findings of fact for substantial ev-
idence. See McIntosh v. Dep’t of Def., 53 F.4th 630, 638
(Fed. Cir. 2022).
Ms. Baker raises two general arguments. First, she ar-
gues that the Board failed to consider another protected
disclosure she made to OSC, aside from her April 2017 IRA
Claim, when deciding her retaliation claim. Appellant Br.
9, 17–18. Second, Ms. Baker challenges the Board’s finding
that her April 2017 IRA Claim was not a contributing fac-
tor in the agency’s evaluation of her performance. Id. at
18–24. We address each argument in turn.
Ms. Baker argues that the Board erred when it did not
consider that she “engaged in protected activity by filing an
EEO [Equal Employment Opportunity] complaint and a
2017 Board appeal.” Appellant Br. 10 (emphasis in origi-
nal). We reject Ms. Baker’s argument, which attempts to
untimely expand the scope of the protected activity on ap-
peal. Assuming a complaint alleging EEO violations is a
protected activity under the WPA, generally, an individual
has a right to appeal directly to the Board only after she
first presented the claim to OSC.4 5 U.S.C. § 1214(a)(3).
The Board’s jurisdiction is thus generally limited to issues
previously raised before OSC. McCarthy v. Merit Sys. Prot.
Bd., 809 F.3d 1365, 1374 (Fed. Cir. 2016). Here, the record
4 To the extent Ms. Baker is arguing on appeal that
an EEO complaint is a protected activity under the WPA,
Ms. Baker did not present that argument to the Board and
thus it is waived on appeal. See Lovshin v. Dep’t of Navy,
767 F.2d 826, 846 (Fed. Cir. 1985) (“The record before us
does not indicate that this specific argument was raised be-
low, so that it may properly be considered on appeal.”).
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BAKER v. SSA 6
shows that the instant appeal was focused solely on Ms.
Baker’s April 2017 IRA Claim as the source of protected
activity. Ms. Baker’s letter to OSC, which initiated this
appeal, only listed her April 2017 IRA Claim as a “pro-
tected activity.” See SAppx69–70. OSC, in turn, noted that
it examined Ms. Baker’s allegations for potential retalia-
tion due solely to her “protected activity (your MSPB ap-
peal [i.e., April 2017 IRA Claim]).” SAppx77. Thus, Ms.
Baker’s allegation of an EEO complaint as a protected dis-
closure is not properly before this court.
Ms. Baker then argues that the Board erred in deter-
mining that her April 2017 IRA Claim was not a contrib-
uting factor in the agency’s performance evaluation of Ms.
Baker. We also reject this argument. The Board’s decision
is supported by substantial evidence. The Board relied on
the testimony of Ms. Barton that she did not have
knowledge of Ms. Baker’s April 2017 IRA Claim when com-
pleting Ms. Baker’s performance evaluation. SAppx24–25.
The Board also relied on evidence other than knowledge or
timing. SAppx25. The Board noted that Ms. Barton testi-
fied that she had no desire or motive to retaliate against
Ms. Baker. Id. The Board noted that Ms. Barton testified
that Ms. Baker’s performance rating was justified because
Ms. Baker did not consistently complete additional work,
i.e., work beyond what was required of her, that would
merit a higher rating. Id. Finally, the Board noted that
Ms. Baker received the same ratings as in her 2016 perfor-
mance appraisal, which showed that Ms. Barton did not
harbor a retaliatory motive towards Ms. Baker. SAppx26.
This is substantial evidence supporting the Board’s finding
that Ms. Baker’s April 2017 IRA Claim was not a contrib-
uting factor to her performance rating.
C ONCLUSION
We have considered Ms. Baker’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the Board’s decision.
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BAKER v. SSA 7
AFFIRMED
COSTS
No costs.
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