Barry Ahuruonye v. Department of the Interior

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BARRY AHURUONYE, DOCKET NUMBER

Appellant, DC-0432-15-0649-I-2

v.

DEPARTMENT OF THE INTERIOR, DATE: December 7, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Barry Ahuruonye, Hyattsville, Maryland, pro se.

Deborah Charette, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed the agency’s removal action. Generally, we grant petitions such as this

one only when: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

1

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

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judge’s rulings during either the course of the appeal or the initial decision were

not consistent with required procedures or involved an abuse of discretion, and

the resulting error affected the outcome of the case; or new and material evidence

or legal argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, we conclude that the petitioner has not established any basis under

section 1201.115 for granting the petition for review. Therefore, we DENY the

petition for review and AFFIRM the initial decision, which is now the Board’s

final decision. 5 C.F.R. § 1201.113(b).

¶2 The agency removed the appellant under the provisions of 5 U.S.C.

chapter 43 based on a charge of unacceptable performance. Ahuruonye v.

Department of the Interior, MSPB Docket No. DC-0432-15-0649-I-1, Initial

Appeal File (IAF), Tab 10 at 12-14. The agency asserted that the appellant’s

performance was unsatisfactory in five assignments, encompassing three critical

elements, that were given to him as part of a 60-day performance improvement

plan (PIP). Id. at 13-20. On appeal to the Board, the appellant alleged that the

action was based on retaliation for whistleblowing and equal employment

opportunity (EEO) activity. Ahuruonye v. Department of the Interior, MSPB

Docket No. DC-0432-15-0649-I-2, Appeal File (I-2 AF), Tab 5 at 2-6.

¶3 Based on the written record because the appellant did not request a hearing,

the administrative judge affirmed the removal action. I-2 AF, Tab 23,

Initial Decision (ID) at 1, 26. The administrative judge found that the agency

proved by substantial evidence that the Office of Personnel Management

approved the agency’s appraisal system, the appellant’s performance standards

were valid and communicated to him, the appellant’s performance was

unacceptable in one or more critical elements, the appellant was given a

reasonable opportunity to improve his performance, and the appellant failed to

improve his performance. ID at 6-17. The administrative judge also found that

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the appellant did not prove his affirmative defenses. ID at 17-26. The

administrative judge found that, although the appellant made protected

disclosures under 5 U.S.C. § 2302(b)(8) and engaged in protected activity under

5 U.S.C. § 2302(b)(9)(C), and established that these activities were contributing

factors in the removal, the agency proved by clear and convincing evidence that it

would have removed the appellant absent his protected activity. ID at 18-23. The

administrative judge found that the appellant did not produce any credible direct

evidence of discrimination and that the agency would have removed the appellant

regardless of any discriminatory motive. ID at 23-25. Finally, the administrative

judge held that, although the appellant participated in protected EEO activity and

the proposing official was aware of the activity, the appellant did not establish

that his removal was taken because of his EEO complaints, and the agency pro ved

that it would have removed him absent that activity. ID at 25-26.

¶4 The appellant asserts on review that the administrative judge was biased

against him and did not rule on a motion he filed seeking to disqualify the

administrative judge on that basis. Petition for Review (PFR) File, Tab 2 at 4,

17-18. The appellant also raises numerous allegations of harmful error, as well as

a contention that the agency violated his due process rights and 5 U.S.C.

§ 7701(c)(2)(C), which provides that an action may not be sustained if the

employee shows that the decision was not in accordance with law. For example,

the appellant contends that, because the proposing and deciding officials were

named as responsible management officials and subjects in his EEO and

whistleblowing complaints, he did not have an opportunity to respond to the

proposed removal before an impartial adjudicator. Id. at 9-11. He also asserts

that the administrative judge should have considered the agency’s alleged action

of suspending him for 30 days before the effective date of his removal as an

allegation of harmful error and an action not in accordance with law, and that the

agency committed harmful error based on a lack of specificity in the decision

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notice and the deciding official’s alleged failure to consider his response t o the

proposal notice. Id. at 11-12, 15-16, 19-21.

¶5 The appellant has not shown that he filed a motion below requesting that the

administrative judge recuse himself from this case, and we have found no such

request in the record. 2 To the extent that the appellant did not raise such an

allegation below, he is precluded from raising it at this time. See Gensburg v.

Department of Veterans Affairs, 85 M.S.P.R. 198, ¶ 7 (2000); Lee v. U.S. Postal

Service, 48 M.S.P.R. 274, 280‑82 (1991). In any event, aside from his bare

assertion on review that the administrative judge demonstrated “pervasive bias”

against him, the appellant has not explained the basis for his bias claim. An

administrative judge’s conduct during the course of a Board proceeding warrants

a new adjudication only if the administrative judge’s comments or actions

evidence “a deep-seated favoritism or antagonism that would make fair judgment

impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63

(Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). We

find that the appellant has not met this standard in this case.

¶6 Moreover, the record reflects that harmful error, a due process violation,

and a violation of 5 U.S.C. § 7701(c)(2)(C) were not identified by the

administrative judge as issues in this case. I-2 AF, Tab 5. The administrative

judge informed the parties that if, before the close of the record, they failed to

object to any of his written rulings, they would be precluded from challenging the

ruling on petition for review. I-2 AF, Tab 2. The appellant did not object to the

administrative judge’s identification of the issues in this case. In fact, the

appellant appears to have raised some of these harmful error claims after the close

of the record below. I-2 AF, Tabs 19-22. Therefore, he may not raise these

2

The appellant did file a motion to disqualify the agency’s representative. IAF, Tab 30.

The administrative judge denied that motion. IAF, Tab 36.

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claims for the first time on review. Crowe v. Small Business Administration,

53 M.S.P.R. 631, 634-35 (1992); 5 C.F.R. § 1201.24(b).

¶7 Regarding the merits of the removal action, the appellant asserts that the

agency should be collaterally estopped, as well as barred under the doctrine of res

judicata, from arguing that it provided him with his performance plan in

October 2013 for his fiscal year (FY) 2014 performance rating because the

agency successfully argued, and the Board held in a separate decision, that the

performance plan provided to him in October 2013, applied to the agency’s

May 2014 denial of a within-grade increase (WIGI), which he claims was, in turn,

related to his FY 2013 performance. PFR File, Tab 2 at 23-26.

¶8 The record includes an Employee Performance Appraisal Plan for FY 2014,

signed by the rating official on October 16, 2013, which indicates that the

appellant refused to sign the performance plan. IAF, Tab 10 at 175 , 192. The

administrative judge found that the agency provided the appellant with a copy of

this plan and thus proved by substantial evidence that it properly notified him of

his performance standards. ID at 13; see I-2 AF, Tab 17 at 12. In Ahuruonye v.

Department of the Interior, MSPB Docket No. DC-531D-14-0587-I-1, Remand

Order at ¶¶ 7-10 (Dec. 29, 2014), the Board held that it had jurisdiction over the

appellant’s challenge to the agency’s denial of a WIGI and granted the WIGI

upon finding that the agency did not submit any of the appellant’s work product

that included apparent errors. In making these findings, the Board noted that the

agency had submitted evidence showing that on October 17, 2013, the appellant’s

supervisor had issued him an Employee Performance Appraisal Plan for FY 2013

that he refused to sign, and that, on or about May 1, 2014, she issued him a

Summary Rating of “Minimally Successful.” Id. at 2.

¶9 Res judicata and collateral estoppel are affirmative defenses that are waived

if not timely raised. See Stearn v. Department of the Navy, 280 F.3d 1376,

1380-81 (Fed Cir. 2002); Killeen v. Office of Personnel Management,

106 M.S.P.R. 666, ¶ 9 (2007), vacated and remanded on other grounds, 558 F.3d

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1318 (Fed. Cir. 2009). The only affirmative defenses identified by the

administrative judge were retaliation for whistleblowing and EEO activity. I-2

AF, Tab 5 at 2. As set forth above, because the appellant did not object to this

ruling, he may not raise these claims on review. In any event, res judicata and

collateral estoppel would not apply in this case because any prior finding by the

Board regarding the appellant’s FY 2013 performance plan as it related to his

appeal of a denial of a WIGI involved a different issue and cause of action from

the finding in this case that the agency properly provided the appellant with

notice of his FY 2014 performance plan in connection with his appeal of his

removal. See Kroeger v. U.S. Postal Service, 865 F.2d 235, 239 (Fed. Cir. 1988)

(finding that collateral estoppel is appropriate when, among other things, an issue

is identical to that involved in the prior action ); Peartree v. U.S. Postal Service,

66 M.S.P.R. 332, 337 (1995) (finding that res judicata precludes parties from

relitigating issues that were, or could have been, raised in the prior action, and

applies if, among other things, the same cause of action was involved in both

cases).

¶10 Finally, the appellant disagrees with the administrative judge’s

determination that the agency proved by clear and convincing evidence that it

would have taken the same action in the absence of his whistleblowing.

PFR File, Tab 2 at 26-27. The appellant contends that there was no evidence in

support of the removal action because the agency was estopped from relying on

the October 2013 performance plan, and the proposing and deciding officials

were the subject of the appellant’s EEO, Office of Special Counsel, and Office of

Inspector General (OIG) complaints. Id. at 27. In particular, the appellant asserts

that the deciding official was the subject of several EEO complaints he filed.

Id. at 27-28. The appellant further contends that the proposing official submitted

a fraudulent affidavit to the Board indicating that she took similar actions against

employees who were not whistleblowers, and that he submitted a sworn affidavit

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from a coworker, B.G., who alleged that the agency retaliated against him after he

engaged in whistleblowing activity. Id. at 28.

¶11 As set forth above, the appellant has not established a basis for finding that

the agency is estopped from relying on the FY 2014 performance plan the agency

provided to him in October 2013. He has otherwise failed to allege or show error

in the administrative judge’s determination that the agency’s evidence in support

of its action was strong. ID at 21-22; see IAF, Tabs 11-12; I-2 AF, Tab 17 at 12.

In fact, the appellant’s arguments on review do not address the issue of whether

his performance was unsatisfactory, as alleged and proved by the agency.

¶12 The administrative judge acknowledged that the majority of the appellant’s

whistleblowing activity was directed at the proposing official, but nevertheless

found that the deciding official did not have a motive to retaliate against the

appellant based on that activity. ID at 22. Although the appellant identifies on

review references to the record showing that the deciding official was the

responding management official in one of his EEO complaints, see I-2 AF,

Tab 22 at 12, Tab 19 at 7-16, Tab 18 at 48-50, he has not identified any evidence

showing that the deciding official was motivated to retaliate against him based on

whistleblowing activity. We note in this regard that the deciding official averred

that he removed the appellant “because I believed that his performance was

unsatisfactory and that he failed to improve his performance to an acceptable

level following an opportunity period for him to do so.” I -2 AF, Tab 17 at 9.

¶13 In her declaration made under penalty of perjury, the proposing official

stated that she had rated other employees’ performances as “Unsatisfactory,”

including rating B.G.’s performance as “Unsatisfactory” on February 7, 2014. Id.

at 13. She indicated that she had placed every employee she had supervised who

performed at an “Unsatisfactory” level on a PIP, including B.G. Id. The

proposing official further averred that she had proposed the removal of all

employees she supervised who failed to complete a PIP, including submitting for

legal review on October 24, 2014, a proposal notice for B.G., who resigned before

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issuance of the notice of proposed removal. Id. at 14. The administrative judge

found that the agency provided evidence that it took similar actions against

employees that were not whistleblowers, noting that the proposing official’s

affidavit indicated that she proposed the removal “of all employees she supervises

who fail to complete a proper PIP.” ID at 22. He also noted that the proposing

official set forth the “example” of the proposal notice involving B.G. Id.

¶14 The record includes an affidavit from B.G. submitted by the appellant

below alleging that, after he made a disclosure of a violation of law, rule, or

regulation, gross mismanagement, gross waste of funds, and an abuse of authority

to the agency’s OIG on September 23, 2013, the proposing official retaliated

against him by placing him on a PIP. IAF, Tab 26 at 17. Thus, to the extent that

the administrative judge relied upon B.G.’s situation as an example of the agency

taking similar action against an employee who was not a whistleblower, we find

that the record does not appear to establish that B.G. was not a whistleblower.

Nevertheless, the proposing official’s declaration more broadly established that

she had proposed the removal of “all” employees she supervised who failed to

complete a proper PIP and appears to have referred to B.G. as only one example.

IAF, Tab 17 at 14. Moreover, the proposing official did not assert in her

declaration that B.G. was not a whistleblower. Under these circumstances, the

appellant has not shown that the affidavit submitted by the proposing official was

fraudulent, nor has he otherwise shown that the administrative judge erred when

he concluded that the agency provided evidence that it took similar actions

against employees who were not whistleblowers. In this regard, we note that the

Board does not view the factors set forth in Carr v. Social Security

Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), as discrete elements, each

of which the agency must prove by clear and convincing evidence, but rather

weighs these factors together to determine whether the evidence is clear and

convincing as a whole. Alarid v. Department of the Army, 122 M.S.P.R.

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600, ¶ 14 (2015). The appellant has not established a basis to overturn the

administrative judge’s findings regarding the appellant’s affirmative defenses.

¶15 After he filed his petition for review, but before the record closed on

review, the appellant sought leave from the Clerk of the Board to submit a letter

that an attorney for B.G. sent to the proposing official regarding a denial of a

WIGI that allegedly shows that the agency took similar acts of reprisal for

whistleblowing against the appellant and B.G. PFR File, Tab 7 at 4.

¶16 Pleadings allowed on review include a petition for review, a cross petition

for review, a response to a petition for review, a response to a cross petition for

review, and a reply to a response to a petition for review. 5 C.F.R. § 1201.114(a).

No pleading other than those set forth above will be accepted unless the party

files a motion with and obtains leave from the Clerk of the Board. 5 C.F.R.

§ 1201.114(a)(5). To constitute new and material evidence, the information

contained in the document, not just the document itself, must have been

unavailable despite due diligence when the record closed. Durr v. Department of

Veterans Affairs, 119 M.S.P.R. 195, ¶ 23 (2013). We deny the appellant’s request

upon finding that he has not shown that this evidence, or the information

contained in the evidence, was unavailable despite his due diligence when the

record closed. Id.; see Brown v. Department of Defense, 121 M.S.P.R. 584, ¶ 5

n.2 (2014), vacated on other grounds, 646 F. App’x 989 (Fed. Cir. 2016).

¶17 After the close of the record on review, the appellant requested leave to file

an additional exhibit consisting of a pleading filed by the U.S. Department of

Justice in a Freedom of Information Act case filed by the appellant in

U.S. district court. PFR File, Tab 12. The appellant appears to contend that this

pleading will show that the agency terminated him on April 14, 2015, not

April 24, 2015, and that this shows that the agency removed him less than 30 days

after it proposed his removal on March 26, 2015, in violation of applicable

statutes and regulations. Id. at 4-6.

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¶18 For purposes of this case, the record on review closed on expiration of the

period for filing the reply to the response to the petition for review. See 5 C.F.R.

§ 1201.114(k). Once the record on review closes, no additional evidence or

argument will be accepted unless it is new and material as defined in 5 C.F.R.

§ 1201.115(d) and the party submitting it shows that the evidence or argument

was not readily available before the record closed. Id. Here, although the

pleading filed by the U.S. Department of Justice may not have been readily

available before the record closed on review, the appellant has not shown that this

evidence is material to the issues in this case. He appears to be alleging that the

pleading in question supports a harmful error claim. As set forth above, however,

harmful error was not accepted by the administrative judge as an issue in this

case. I-2 AF, Tab 5 at 2. Thus we deny the appellant’s request for leave to

submit an additional exhibit.

¶19 Accordingly, we find that the administrative judge correctly affirmed the

agency’s removal action.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision. There

are several options for further review set forth in the paragra phs below. You may

choose only one of these options, and once you elect to pursue one of the avenues

of review set forth below, you may be precluded from pursuing any other avenue

of review.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination

claims by the Equal Employment Opportunity Commission (EEOC). Title 5 of

the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you

submit your request by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

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P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a

signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after your

receipt of this order. If you have a representative in this case, and your

representative receives this order before you do, then you must file with EEOC no

later than 30 calendar days after receipt by your representative. If you choose to

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your

discrimination claims, you may file a civil action against the agency on both your

discrimination claims and your other claims in an appropriate U.S. district court.

See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court

no later than 30 calendar days after your receipt of this order. If you have a

representative in this case, and your representative receives this order before you

do, then you must file with the district court no later than 30 calendar days after

receipt by your representative. If you choose to file, be ver y careful to file on

time. If the action involves a claim of discrimination based on race, color,

religion, sex, national origin, or a disabling condition, you may be entitled to

representation by a court‑appointed lawyer and to waiver of any requirement of

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and

29 U.S.C. § 794a.

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Other Claims: Judicial Review

If you want to request review of the Board’s decision concerning your

claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge

the Board’s disposition of any other claims of prohibited personnel practices, you

may request review of this final decision by the U .S. Court of Appeals for the

Federal Circuit or by any court of appeals of competen t jurisdiction. The court of

appeals must receive your petition for review within 60 days after the date of this

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose

to file, be very careful to file on time.

If you need further information about your right to appeal this decision to

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the United

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.

Additional information about the U.S. Court of Appeals for the Federal Circuit is

available at the court’s website, www.cafc.uscourts.gov. Of particular relevance

is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained

within the court’s Rules of Practice, and Forms 5, 6, and 11. Additional

information about other courts of appeals can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for an appeal to the

U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

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Merit Systems Protection Board neither endorses the services provided by any

attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.