Barry Ahuruonye v. Department of the Interior
Background
- Barry Ahuruonye, a Grants Management Specialist at the U.S. Fish and Wildlife Service, appealed the agency’s denial of a within‑grade increase (WIGI) and filed multiple individual right of action (IRA) appeals alleging reprisal for whistleblowing and other adverse actions (reprimand, unsatisfactory rating, PIP, AWOL, benefits termination, proposed removal).
- The administrative judge joined the appeals, held a record‑only proceeding, sustained the WIGI denial, found Ahuruonye made protected disclosures and engaged in protected activity, and found those disclosures were contributing factors in several adverse actions.
- The judge nonetheless denied corrective action because the agency proved by clear and convincing evidence it would have taken the same actions absent the disclosures (unsatisfactory rating, PIP, reprimand, AWOL, leave restriction, proposed removal); the judge found no reprisal for the health benefits termination.
- Ahuruonye petitioned for review raising collateral estoppel/res judicata arguments based on a prior favorable Board decision, alleged direct evidence of reprisal, challenged OPM approval and validity of performance plans, disputed factual bases for discipline and AWOL, and sought to supplement the record with post‑record exhibits.
- The Board denied the petition for review, affirmed the initial decision except for limited modifications addressing arguments not previously discussed, and denied requests to file new evidence as not material to the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of WIGI denial (performance) | Ahuruonye: agency used invalid performance plan(s) and improperly applied prior EPAP; errors attributed to system/pre‑populated fields and contractor responsibilities | Agency: performance standards were OPM‑approved, critical elements required accurate correspondence and milestone completion, and substantial evidence shows unacceptable performance | Held: Agency proved by substantial evidence it properly denied WIGI; OPM approval and plan changes do not invalidate the standards used |
| Whistleblower/IRA reprisal (contributing factor) | Ahuruonye: protected disclosures and subsequent Board/OIG activity caused adverse actions, including benefits termination | Agency: although disclosures occurred, it proved by clear and convincing evidence it would have taken same actions absent disclosures; HR, not supervisor, handled benefits termination | Held: Disclosures were contributing factors for several actions, but agency met clear and convincing burden; no reprisal shown for health benefits termination |
| Collateral estoppel / res judicata based on prior WIGI decision | Ahuruonye: prior Board reversal of a 2013 WIGI denial should preclude relitigation of related performance issues | Agency: current appeals involve different actions, periods, and issues; prior decision not dispositive | Held: Collateral estoppel/res judicata not applicable because prior matter involved different issues and cause of action |
| Discovery / new evidence after record close | Ahuruonye: requested discovery, motions to compel, and sought to submit post‑record documents showing harm and different removal date | Agency: procedural rulings and record completeness; post‑record documents not material to the whistleblower merits | Held: Administrative judge did not abuse discretion on discovery; Board denied supplementation as evidence was not material to proving reprisal |
Key Cases Cited
- Kroeger v. U.S. Postal Serv., 865 F.2d 235 (Fed. Cir. 1988) (collateral estoppel requires identical issues between actions)
- Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (clear and convincing evidence assessed in aggregate considering contrary evidence)
- Shibuya v. Dep’t of Agriculture, 119 M.S.P.R. 537 (2013) (comparative treatment of nonwhistleblowers relevant to reprisal analysis)
- Hendricks v. Dep’t of the Navy, 69 M.S.P.R. 163 (1995) (pleadings by counsel not evidence of facts)
- Peartree v. U.S. Postal Serv., 66 M.S.P.R. 332 (1995) (res judicata bars relitigation of issues that were or could have been raised)