Barry Ahuruonye v. Department of the Interior
Background
- Appellant Barry Ahuruonye, a Department of the Interior employee, was removed for unacceptable performance under 5 U.S.C. chapter 43 after failing to improve during a 60-day PIP addressing several critical elements.
- Administrative judge (AJ) affirmed removal on the written record, finding OPM‑approved appraisal system, valid communicated standards, opportunity to improve, and failure to improve.
- Ahuruonye alleged affirmative defenses: whistleblower retaliation (5 U.S.C. § 2302(b)(8)), protected activity (5 U.S.C. § 2302(b)(9)(C)), and discrimination/EEO retaliation; AJ found these were contributing factors but agency proved by clear and convincing evidence it would have removed him absent protected activity.
- Appellant raised on review claims of AJ bias, due process/harmful error (including timing of suspension/removal and lack of impartial adjudicator), and argued res judicata/collateral estoppel from a prior WIGI appeal; Board denied those arguments as untimely or inapplicable.
- Board found agency evidence of similar actions against other employees and no persuasive proof of discriminatory or retaliatory motive by deciding official; denied requests to admit new records on review as not new and material.
- Petition for review denied; initial decision affirmed. The order explains appellate options (EEOC, district court, or Federal Circuit) and preserves time limits for filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Removal for unacceptable performance | Performance standards invalid/appraisal plan estopped by prior WIGI matter; agency failed to prove unsatisfactory performance | Agency provided FY2014 plan, communicated standards, PIP, and evidence of unsatisfactory performance | AJ/Board: agency proved elements by substantial evidence; removal sustained |
| Whistleblower retaliation (contributing factor; mixed‑motive) | Disclosures and complaints were contributing factors; removal motivated by retaliation | Agency conceded contributing factor but argued clear‑and‑convincing proof it would have removed absent protected activity | AJ/Board: protected activity was a contributing factor, but agency met clear and convincing standard — removal would have occurred anyway |
| Discrimination / EEO retaliation | Deciding/proposing officials were subjects of his EEO complaints; removal due to EEO activity | Agency: no credible direct evidence of discrimination; independent nonretaliatory grounds for removal | AJ/Board: appellant produced no credible direct evidence; agency proved it would have removed him regardless |
| Procedural due process / AJ bias / harmful error | AJ biased; was not impartial; procedural defects (timing of suspension/removal; inadequate notice/consideration of response) | Alleged defects were not raised below or were not issues identified by AJ; claims are untimely or unsupported | Board: bias claim not shown; procedural/harmful‑error claims not preserved or unsupported; no reversible error |
Key Cases Cited
- Bieber v. Department of the Army, 287 F.3d 1358 (Fed. Cir.) (administrative judge’s conduct requires deep‑seated favoritism/antagonism to warrant new adjudication)
- Liteky v. United States, 510 U.S. 540 (1994) (standard for judicial bias recusal requires deep‑seated favoritism or antagonism)
- Stearn v. Department of the Navy, 280 F.3d 1376 (Fed. Cir.) (res judicata and collateral estoppel defenses are waived if not timely raised)
- Kroeger v. U.S. Postal Service, 865 F.2d 235 (Fed. Cir.) (collateral estoppel requires identity of issues between actions)
- Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir.) (factors in mixed‑motive/clear‑and‑convincing analysis are weighed together)