Goodwin v. Pension Benefit Guaranty Corp.

Case: 26-1616 Document: 33 Page: 1 Filed: 10/26/2026 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ KIWANNA GOODWIN, Petitioner v. PENSION BENEFIT GUARANTY CORP., Respondent ______________________ 2026-1616 ______________________ Petition for review of the Merit Systems Protection Board in No. DC-1221-22-0484-W-2. ______________________ Decided: October 26, 2026 ______________________ KIWANNA GOODWIN, Brandywine, MD, pro se. LAURA OFFENBACHER ARADI, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent. Also represented by ELIZABETH MARIE HOSFORD, PATRICIA M. MCCARTHY, BRETT SHUMATE. ______________________ Before MOORE, Chief Judge, STOLL and CUNNINGHAM, Circuit Judges. Case: 26-1616 Document: 33 Page: 2 Filed: 10/26/2026 2 GOODWIN v. PENSION BENEFIT GUARANTY CORP. PER CURIAM. Kiwanna Goodwin petitions for review of a final deci- sion of the Merit Systems Protection Board. The Board de- nied Ms. Goodwin’s request for corrective action. We affirm. BACKGROUND Ms. Goodwin has worked for the Pension Benefit Guar- anty Corporation since January 2014. In February 2021, the agency promoted Ms. Goodwin from a GS-14 IT special- ist position to a GS-15 supervisory IT specialist position. This promotion was subject to the successful completion of a one-year probationary period. In November 2021, during the probationary period, Ms. Goodwin’s supervisor, Mela- nie Carter, issued a notice of termination of Ms. Goodwin’s supervisory appointment, and in December 2021, Ms. Goodwin was returned to a GS-14 IT specialist posi- tion. Ms. Goodwin filed an individual right of action appeal seeking corrective action under the Whistleblower Protec- tion Act and the Whistleblower Protection Enhancement Act. In its initial decision, the Board found that, after her promotion, Ms. Goodwin made the following protected dis- closures: inform[ed] agency management that staff were not complying with the agency’s telework policies; re- port[ed] that her supervisor and subordinate threatened and “hazed” her; report[ed] that her su- pervisor threatened to lower her performance rat- ing and terminate her supervisory appointment during her probationary period in reprisal for [her] disclosures regarding subordinate employees; re- port[ed] a purported privacy violation related to the termination of [her] supervisory appointment; and report[ed] to various agency officials that she was being retaliated against for her whistleblowing. Case: 26-1616 Document: 33 Page: 3 Filed: 10/26/2026 GOODWIN v. PENSION BENEFIT GUARANTY CORP. 3 [Ms. Goodwin] also established she engaged in pro- tected activity by cooperating with and disclosing information to the [Harassment Inquiry Commit- tee] and the [Office of Inspector General]. SAppx 39. 1 The Board also found that Ms. Goodwin’s protected dis- closures and activity were a contributing factor in the fol- lowing covered personnel actions: (1) on November 8, 2021, Ms. Carter terminated Ms. Goodwin’s supervisory appointment during the probationary period; (2) the OIG required Ms. Goodwin to sign a nondisclosure agreement; (3) in December 2021, the agency set Ms. Goodwin’s pay at a GS-14 step 5 level rather than a GS-14 step 7 level; and (4) on or around January 31, 2022, Ms. Carter provided Ms. Goodwin a negative performance rating. Thus, the Board found that Ms. Goodwin “prove[d] by preponderant evidence she made protected disclosures and engaged in a protected activity, which were contributing factors in four personnel actions.” SAppx 63. At the same time, however, the Board found that the agency had shown by clear and convincing evidence it would have taken the same person- nel actions notwithstanding Ms. Goodwin’s protected activ- ity. As a result, the Board denied Ms. Goodwin’s request for corrective action. Ms. Goodwin filed a petition for review of the initial de- cision. The Board issued an order explaining that there was no quorum to alter the initial decision, and thus, the initial decision became the final decision of the Board un- der 5 C.F.R. § 1200.3(b). Ms. Goodwin appeals the Board’s decision. We have jurisdiction under 28 U.S.C. § 1295(a)(9). 1 “SAppx” refers to the supplemental appendix filed by the Government. ECF No. 26. Case: 26-1616 Document: 33 Page: 4 Filed: 10/26/2026 4 GOODWIN v. PENSION BENEFIT GUARANTY CORP. DISCUSSION I “Analysis of a whistleblower defense takes place within a burden shifting scheme.” Whitmore v. Dep’t of Lab., 680 F.3d 1353, 1367 (Fed. Cir. 2012). “[T]he former em- ployee must prove by a preponderance of the evidence that he or she made a protected disclosure under [5 U.S.C.] § 2302(b)(8) that was a contributing factor to the em- ployee’s termination.” Id. “If the employee establishes this prima facie case of reprisal for whistleblowing, the burden of persuasion shifts to the agency to show by clear and con- vincing evidence that it would have taken ‘the same per- sonnel action in the absence of such disclosure,’” id. (quoting 5 U.S.C. § 1221(e)), “which we sometimes refer to as a showing of ‘independent causation,’” Miller v. Dep’t of Just., 842 F.3d 1252, 1257 (Fed. Cir. 2016) (internal cita- tion omitted). We review the Board’s finding of independ- ent causation for substantial evidence. Id. at 1258. In evaluating whether the agency has successfully re- butted an employee’s prima facie case, we look at the fac- tors set forth in Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999): [(1)] the strength of the agency’s evidence in sup- port 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 deci- sion; and [(3)] any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly sit- uated. Id. at 1323. “To be clear, Carr does not impose an affirma- tive 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, Case: 26-1616 Document: 33 Page: 5 Filed: 10/26/2026 GOODWIN v. PENSION BENEFIT GUARANTY CORP. 5 680 F.3d at 1374. Rather, “[t]he factors are merely appro- priate and pertinent considerations for determining whether the agency carries its burden of proving by clear and convincing evidence that the same action would have been taken absent the whistleblowing.” Id. We must affirm the Board’s decision unless it is “(1) ar- bitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures re- quired by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). The agency does not dispute the Board’s determination that Ms. Goodwin made a prima facie showing that her dis- closures were protected and that they contributed to the covered personnel actions. Thus, the burden shifted to the agency to show independent causation. The sole issue be- fore us on appeal is whether substantial evidence supports the Board’s fact finding that the agency showed independ- ent causation by clear and convincing evidence. We con- clude that it does. As an initial matter, we note that the Board identified and applied the proper Carr factors. SAppx 47. The first Carr factor is “the strength of the agency’s evidence in sup- port of its personnel action.” Carr, 185 F.3d at 1323. The Board found that the agency “presented strong evidence in support of its termination of [Ms. Goodwin’s] supervisory appointment.” SAppx 49. We conclude that substantial ev- idence supports this finding. For example, the November 2021 notice of termination stated that Ms. Goodwin was “not developing the skills and abilities that are necessary for an effective supervisor” and cited instances in which Ms. Goodwin exhibited unprofessional behavior, had not been effective in dealing with her subordinates, and rec- orded work-related conversations without consent. See SAppx 4066–69. The Board also found Ms. Carter, Case: 26-1616 Document: 33 Page: 6 Filed: 10/26/2026 6 GOODWIN v. PENSION BENEFIT GUARANTY CORP. Ms. Goodwin’s supervisor, credibly testified as to her con- cerns with Ms. Goodwin’s authoritarian style rather than a collaborative style. SAppx 48–49. And Ms. Goodwin’s challenges to the Board’s “credibility determinations are virtually unreviewable at this level.” Chambers v. Dep’t of Interior, 515 F.3d 1362, 1370 (Fed. Cir. 2008) (internal quotation marks omitted). Further, the Board credited tes- timony that Ms. Goodwin’s reviews focused on how employ- ees were behaving and their personal characteristics, rather than how they met mission and individual objec- tives, contrary to instructions from both her supervisor and the Chief Information Officer. SAppx 50–51. With respect to the nondisclosure agreement, a special agent from OIG testified that he was assigned to interview Ms. Goodwin based on her admission that she recorded conversations with subordinates without knowledge or con- sent, and that in all such situations, it is OIG’s standard procedure to request the interviewee to sign an NDA. SAppx 54–55. With respect to pay actions, the agency’s di- rective establishes that “[a]n employee who is returned to a lower graded position for failure to satisfactorily complete probation is not entitled to grade or pay retention,” and an employee removed from a supervisory or managerial posi- tion “is entitled to be returned to a position of no lower grade and pay than the one the employee left to accept the supervisory or managerial position.” SAppx 4050–60. Substantial evidence thus supports that Ms. Goodwin was entitled to pay at the GS-14 step 5 level upon her demotion, and Ms. Goodwin’s pay was corrected because she was mis- takenly placed at the GS-14 step 4 level. SAppx 56–58. And, with respect to the performance review, the agency’s Performance Management Program provides for “[i]nterim Case: 26-1616 Document: 33 Page: 7 Filed: 10/26/2026 GOODWIN v. PENSION BENEFIT GUARANTY CORP. 7 ratings . . . when an employee has spent the minimum ap- praisal period[2] (120-days) in a position and then changes to another position,” and the “interim rating may become a final rating when an employee changes positions toward the end of the rating period (i.e., where the time remaining in the appraisal period is less than 120-days).” SAppx 4021. Ms. Goodwin served as a Supervisory IT Spe- cialist from February 14, 2021, until December 19, 2021, SAppx 59, meaning Ms. Carter’s rating of Ms. Goodwin was consistent with the agency’s Performance Manage- ment Program. Ms. Carter also provided a detailed perfor- mance narrative supporting her rating of Ms. Goodwin, explaining that “there was an acknowledged struggle with motivating the division’s employees and promoting team cohesiveness.” SAppx 4526–33. Accordingly, substantial evidence supports the Board’s findings on Carr factor 1. The second Carr factor is “the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision.” Carr, 185 F.3d at 1323. When applying this factor, “the Board will consider any motive to retaliate on the part of the agency official who ordered the action, as well as any motive to retaliate on the part of other agency officials who influenced the decision.” Whitmore, 680 F.3d at 1371 (internal quotation marks omitted). Ms. Goodwin argues that the administrative judge erred in dismissing a September 2021 lockout of her performance plan as a system error and not addressing that “a formal reprimand was issued to [one of her subor- dinate employees] during [Ms. Goodwin’s] tenure, giving her a personal motive to shift blame and minimize her own conduct.” Pet. Br. 14–15 (citation omitted). Substantial evidence supports the Board’s finding that Ms. Goodwin 2 The appraisal period was from January 1, 2021, through December 31, 2021. SAppx 59 n.13. Case: 26-1616 Document: 33 Page: 8 Filed: 10/26/2026 8 GOODWIN v. PENSION BENEFIT GUARANTY CORP. did not meet her burden to prove her reporting of the Sep- tember 2021 lockout of her performance plan is a protected disclosure. A human resources department program man- ager testified that the performance plan system automati- cally locks an employee’s plan after a manager signs it, and Ms. Goodwin did not testify as to when or to whom she dis- closed her belief that Ms. Carter was editing her perfor- mance plan or preventing access. SAppx 33–34. Ms. Goodwin also fails to establish that her subordinate employee is “part of the agency officials who were involved in the decision,” Carr, 185 F.3d at 1323, as required by the second Carr factor. Ms. Goodwin further argues that the timing of escalat- ing criticism immediately following her protected disclo- sures evidences retaliatory motive. Pet. Br. 14–15. However, substantial evidence supports the Board’s analy- sis of the second Carr factor. For example, with respect to the termination of Ms. Goodwin’s supervisory appoint- ment, the Board found that Ms. Carter credibly testified that her decision to terminate Ms. Goodwin’s supervisory appointment was not retaliatory. SAppx 52 (“[Ms.] Carter’s testimony was genuine and open, and I found her testimony credible.”). Further, as the Board em- phasized, Ms. Carter began providing feedback to Ms. Goodwin regarding her communication style as early as March 2021, prior to most of Ms. Goodwin’s protected disclosures and activities. SAppx 52–53. With respect to the nondisclosure agreement, the Board reasonably found that “it defies logic that OIG would be motivated to retali- ate against a person based on her cooperation with its own office.” SAppx 54–55. The Board also found that the spe- cial agent credibly denied that he retaliated against Ms. Goodwin for whistleblowing or was directed to do so by anyone else. SAppx 55. With respect to pay actions, the human resources department director offered testimony that she was not aware of Ms. Goodwin’s protected disclo- Case: 26-1616 Document: 33 Page: 9 Filed: 10/26/2026 GOODWIN v. PENSION BENEFIT GUARANTY CORP. 9 sures or activities, and even assuming she was, Ms. Good- win’s disclosures did not reflect negatively on her. SAppx 58. Moreover, Ms. Carter testified that she played no role in setting Ms. Goodwin’s grade, step, or pay upon demotion. Id. And, with respect to the performance re- view, as mentioned above, Ms. Carter began providing feedback to Ms. Goodwin regarding her communication style as early as March 2021, prior to most of Ms. Good- win’s protected disclosures and activities. SAppx 62. The third and final Carr factor is “any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly sit- uated.” Carr, 185 F.3d at 1323. The Board found that this factor “does not weigh in favor of the agency” and is neu- tral. SAppx 53, 55, 62. Ms. Goodwin argues that “[Ms.] Carter acknowledged that employees who resisted accountability often remained in place despite performance concerns” and thus contends that this factor favors her. Pet. Reply Br. 10–14. We are not persuaded. It is true that the agency produced little evidence (only NDAs signed by other employees) regarding this factor. SAppx 53, 55, 58, 62. But the testimony cited by Ms. Goodwin—that employ- ees who resist accountability often remain in place—is not sufficiently probative of employees who are similarly situ- ated to Ms. Goodwin. We thus conclude that substantial evidence supports the Board’s finding that the third Carr factor is neutral. Considering the record as a whole, substantial evi- dence supports the Board’s finding that the agency clearly and convincingly proved it would have taken the covered personnel actions against Ms. Goodwin independent of her protected disclosures. Having found that substantial evi- dence supports the Board’s findings on the Carr factors, we will not reweigh those findings or the factual evidence. See Jones v. Merit Sys. Prot. Bd., 98 F.4th 1376, 1383 (Fed. Cir. 2024). Case: 26-1616 Document: 33 Page: 10 Filed: 10/26/2026 10 GOODWIN v. PENSION BENEFIT GUARANTY CORP. II Ms. Goodwin also argues that procedural irregularities violated her due process rights. Specifically, she argues that while the initial decision issued on February 24, 2025, hearing transcripts were not produced until March 4, 2025, resulting in her “lack[ing] equal access to a complete hear- ing record necessary to identify and challenge errors” when pursuing her appeal rights. Pet. Br. 12–13. We agree with the agency that Ms. Goodwin has failed to establish due process violations because she was not deprived of an op- portunity to respond to the initial decision. Indeed, Ms. Goodwin timely appealed the Board’s initial decision. Ms. Goodwin further argues that she sought to submit new and material evidence but that the Board’s lack of quorum prevented adjudication. Pet. Br. 6, 13. As the Board noti- fied Ms. Goodwin, “[t]he Board’s regulations do not provide for pleadings other than a petition for review filed by either party, a response to a petition for review, and a reply to a response to a petition for review.” Appx 92–93, 97; 3 5 C.F.R. § 1201.114(a)(4). In other words, a party may not submit new evidence on review from the Board’s initial de- cision “unless the Board issues an order granting the mo- tion for leave.” Appx 97; 5 C.F.R. § 1201.114(a)(4). CONCLUSION We have considered Ms. Goodwin’s remaining argu- ments and find them unpersuasive. For the foregoing rea- sons, we affirm. AFFIRMED COSTS No costs. 3 “Appx” refers to the appendix accompanying Ms. Goodwin’s opening brief. ECF No. 18.