Ahuruonye v. Department of the Interior , 671 F. App'x 783 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BARRY AHURUONYE,
Petitioner
v.
DEPARTMENT OF THE INTERIOR,
Respondent
______________________
2016-2493
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-15-1172-W-1.
______________________
Decided: December 8, 2016
______________________
BARRY AHURUONYE, Hyattsville, MD, pro se.
MELISSA BAKER, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BENJAMIN C.
MIZER, ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.
______________________
Before DYK, WALLACH, and HUGHES, Circuit Judges.
PER CURIAM.
2 AHURUONYE v. INTERIOR
Barry Ahuruonye petitions for review from a final de-
cision of the Merit Systems Protection Board finding that
he was not entitled to corrective action under the Whis-
tleblower Protection Act because he failed to establish
that his protected disclosures were a contributing factor
to the alleged retaliatory personnel action. Because
substantial evidence supports the Board’s decision, we
affirm.
I
During the relevant period, Mr. Ahuruonye was em-
ployed as a Grants Management Specialist for the United
States Fish & Wildlife Service. In May 2013,
Mr. Ahuruonye suffered a loss of consciousness at work
that required hospitalization. On February 7, 2014, he
emailed Lisa Van Alstyne, his then-supervisor, asking
that she complete a Form CA-2 so that he could proceed
with his workers’ compensation claim. Ms. Van Alstyne
did not complete the form because, according to her, the
form was blank and a human resources employee had told
her that Mr. Ahuruonye needed to first fill out the top
portion before she could complete the supervisor’s portion.
Ms. Van Alstyne asked human resources to explain the
correct process to Mr. Ahuruonye. Ms. Van Alstyne never
received a revised Form CA-2 from Mr. Ahuruonye.
On September 5, 2015, Mr. Ahuruonye complained to
the Office of Special Counsel (OSC) that Ms. Van Alstyne
failed to fill out the Form CA-2 as reprisal for a 2012
complaint he filed with the United States Department of
Interior Office of Inspector General (Interior OIG) alleg-
ing that Penny Bartnicki, Chief of the Coastal Impact
Assistance Program, unlawfully approved certain awards.
Two weeks later, before the OSC completed its investiga-
tion, Mr. Ahuruonye filed an individual right-of-action
appeal with the Board under the Whistleblower Protec-
tion Act, 5 U.S.C. § 2302(b)(8) (2012), amended by Whis-
tleblower Protection Enhancement Act of 2012, Pub. L.
AHURUONYE v. INTERIOR 3
No. 112–199, 126 Stat. 1465. Shortly thereafter, the OSC
closed its investigation and informed Mr. Ahuruonye that
he could seek corrective action.
On initial hearing, an Administrative Judge denied
Mr. Ahuruonye’s request for corrective action on the
merits. Mr. Ahuruonye sought relief from the full Board,
which vacated the Administrative Judge’s finding in part
but sustained the denial of Mr. Ahuruonye’s petition. The
Board concluded that Mr. Ahuruonye’s disclosure to
Interior OIG did not contribute to Ms. Van Alstyne’s
decision to not complete Mr. Ahuruonye’s Form CA-2.
This case followed. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
II
“We review the Board’s decision to determine whether
it is ‘(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.’” Grover v. Office of Pers. Mgmt., 828 F.3d 1378,
1382 (Fed. Cir. 2016) (quoting 5 U.S.C. § 7703(c)). “Sub-
stantial evidence is more than a mere scintilla of evi-
dence, but less than the weight of the evidence.” Jones v.
Dep’t of Health & Human Servs., 834 F.3d 1361, 1366
(Fed. Cir. 2016) (internal citations and quotation marks
omitted). Under that deferential standard, “[i]t is not for
this court to reweigh the evidence before the Board.”
McMillan v. Dep’t of Justice, 812 F.3d 1364, 1371 (Fed.
Cir. 2016) (quoting Henry v. Dep’t of Navy, 902 F.2d 949,
951 (Fed. Cir. 1990)).
To prevail in seeking a corrective action, a whistle-
blower must demonstrate “by a preponderance of the
evidence that he or she made a protected disclosure under
§ 2302(b)(8) that was a contributing factor to the employ-
ee’s” adverse personnel action. Whitmore v. Dep’t of
Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012). The “con-
4 AHURUONYE v. INTERIOR
tributing factor” element may be proven “through circum-
stantial evidence, such as evidence that (A) the official
taking the personnel action knew of the disclosure . . . ;
and (B) the personnel action occurred within a period of
time such that a reasonable person could conclude that
the disclosure . . . was a contributing factor in the person-
nel action.” 5 U.S.C. § 1221(e)(1); Cahill v. Merit Sys.
Prot. Bd., 821 F.3d 1370, 1373 (Fed. Cir. 2016).
Here, the Board determined that Mr. Ahuruonye
failed to establish his prima facie case because he did not
show that Ms. Van Alstyne knew of his 2012 complaint
against Ms. Bartnicki before she failed to complete his
Form CA-2. Applying our deferential “substantial evi-
dence” standard, we agree. The Board reasonably credit-
ed Ms. Van Alstyne’s sworn statement that “[i]n February
2014, [she] was not aware that Mr. Ahuruonye had dis-
closed anything to the [Interior OIG] related to any ‘ille-
gal grant awards.’” Resp. App. 22, 28 ¶ 3. Mr. Ahuruonye
relies primarily on two pieces of circumstantial evidence
predating Ms. Van Alstyne’s complained-of conduct: (1) a
July 31, 2013 email from Ms. Van Alstyne, which the
Board characterized as referring only generally to “OIG
auditors,” and (2) an October 25, 2013 declaration by
Ms. Van Alstyne submitted in a separate, equal employ-
ment opportunity (EEO) complaint Mr. Ahuruonye filed.
Mr. Ahuruonye does not contend on appeal that the July
31, 2013 email reflects knowledge of his disclosure, and
we see no reversible error in the Board’s conclusion that
Ms. Van Alstyne’s declaration did not sufficiently show
that she knew Mr. Ahuruonye reported Ms. Bartnicki to
the Interior OIG.
Mr. Ahuruonye also points to an affidavit he prepared
for the EEO matter, dated October 24, 2013, which de-
scribes his Interior OIG disclosure. Although he claims
that Ms. Van Alstyne reviewed it and thus knew of his
disclosure, here he identifies no evidence supporting that
assertion. Therefore, substantial evidence supports the
AHURUONYE v. INTERIOR 5
Board’s finding that Mr. Ahuruonye’s protected disclosure
was not a contributing factor to Ms. Van Alstyne’s failure
to complete his Form CA-2.
We find Mr. Ahuruonye’s remaining arguments un-
persuasive. Accordingly, we affirm the Board’s denial of
Mr. Ahuruonye’s petition.
AFFIRMED
No costs.