Barry Ahuruonye v. Department of the Interior
Background
- Appellant 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 brought multiple individual right of action (IRA) claims alleging retaliation and other adverse actions (reprimand, unsatisfactory rating, PIP, AWOL, benefits termination, proposed removal).
- The administrative judge joined multiple related appeals and issued an initial decision on the written record (no hearing), sustaining the WIGI denial and finding the agency proved appellant’s unacceptable performance by substantial evidence.
- The judge found Ahuruonye made protected whistleblower disclosures and engaged in protected appeal/complaint activity, and that those disclosures were contributing factors in several adverse actions, but the agency proved by clear and convincing evidence it would have taken the same actions absent the disclosures.
- The judge found no reprisal for the health-benefits termination and denied corrective action; he also found no EEO discrimination or reprisal for EEO activity.
- On petition for review, the Board affirmed the initial decision, addressing arguments on collateral estoppel/res judicata, alleged direct evidence of reprisal, OPM approval of the agency appraisal system, and various factual/contention disputes raised by the appellant; the Board denied requests to supplement the record with late evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the WIGI denial improper? | Ahuruonye argued performance standards were invalid and prior Board decision should preclude relitigation; challenged accuracy of agency performance evidence. | Agency: appellant performed below acceptable level; performance plan valid and OPM approval not undermined. | Denied — substantial evidence supports denial; performance plan valid for purposes here. |
| Did whistleblowing cause adverse actions (contributing factor)? | Ahuruonye argued protected disclosures and appeals were motive and direct evidence (agency cited "related appeals"). | Agency conceded disclosures but proved by clear and convincing evidence it would have acted regardless. | Mixed — disclosures were contributing factors but agency met clear-and-convincing burden; no corrective action ordered. |
| Was the health-benefits termination retaliation? | Appellant claimed supervisor caused termination and that termination was retaliatory. | Agency offered HR declaration showing HR processed benefits change; supervisor had no role. | Denied — appellant failed to prove agency terminated benefits in reprisal; new evidence on harm/date not admitted. |
| Procedural/evidentiary issues (sanctions, discovery, new exhibits)? | Appellant sought sanctions for alleged perjury, compelled documents, and to supplement record with post‑record exhibits. | Agency opposed; representations in filings not evidence; motions untimely or unrelated. | Denied — no basis for sanctions; discovery rulings not abused; requested post‑record exhibits not admitted. |
Key Cases Cited
- Kroeger v. U.S. Postal Serv., 865 F.2d 235 (Fed. Cir. 1988) (collateral estoppel requires identical issues)
- Peartree v. U.S. Postal Serv., 66 M.S.P.R. 332 (1995) (res judicata bars relitigation of issues/cause of action)
- Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (clear-and-convincing evidence evaluated in aggregate)
- Shibuya v. Dep’t of Agriculture, 119 M.S.P.R. 537 (2013) (comparative treatment and agency response to misconduct investigated)