Barry Ahuruonye v. Department of the Interior ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARRY AHURUONYE, DOCKET NUMBER
Appellant, DC-531D-14-0587-B-1
v.
DEPARTMENT OF THE INTERIOR, DATE: July 15, 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THIS FINAL ORDER IS NONPRECEDENTIAL 1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 remand initial decision,
which found that he failed to prove his claims of discrimination and retaliation in
connection with the agency’s action denying his within-grade increase.
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative 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, but we
expressly MODIFY the remand initial decision to change the disposition from
dismissal of the appeal to finding that the appellant failed to establish his
affirmative defenses, and to afford him the proper review rights. In all other
respects, we AFFIRM the remand initial decision.
¶2 The appellant, a GS-12 Grants Management Specialist, filed an appeal with
the Board in which he asserted that the agency failed to grant him a within-grade
increase (WIGI) to step 3, effective December 1, 2013. The administrative judge
dismissed the appeal for lack of jurisdiction, finding that the evidence did not
show that the agency failed to issue an initial decision on the appellant’s WIGI
request or that it refused to act on a request for reconsideration that would permit
the Board to assume jurisdiction. Ahuruonye v. Department of the Interior,
MSPB Docket No. DC-531D-14-0587-I-1, Initial Decision (July 25, 2014). On
petition for review, the Board reversed the initial decision. The Board
determined that, while the agency did not grant the appellant a WIGI to step 3, it
failed to issue him the required notice that his performance was not at an
acceptable level of competence. The Board concluded that, because the
appellant’s failure to seek reconsideration was based on the agency’s failure to
provide him with notice of the denial of his WIGI and the opportunity to seek
reconsideration of that negative determination, the Board has jurisdiction over the
3
appeal. Ahuruonye v. Department of the Interior, MSPB Docket No. DC-531D-
14-0587-I-1, Remand Order, ¶¶ 9-10 (Dec. 29, 2014) (Ahuruonye Remand Order).
The Board thus ordered the agency to retroactively grant the appellant’s WIGI to
step 3 and to pay him back pay, interest, and other benefits. In addition, the
Board remanded the appeal for adjudication of the appellant’s claims of
discrimination and retaliation for protected activity. Id., ¶ 11.
¶3 On remand, the appellant clarified that his affirmative defenses included
discrimination due to race (African American) and national origin (Nigerian)
based on a disparate treatment theory, and retaliation for equal employment
opportunity (EEO) activity, for filing a Board appeal, and for whistleblowing.
Remand File (RF), Tab 5. The parties made numerous additional submissions.
RF, Tabs 6-9, 12-15, 17-23, 26-27, 29 (the appellant); Tabs 11, 24 (the agency).
¶4 The administrative judge issued a remand initial decision based on the
written record. 2 RF, Tab 30, Remand Initial Decision (RID). Addressing the
appellant’s race and national origin discrimination claims, she found that he
failed to show any comparator employees were similarly situated to him or that
either of the prohibited considerations was a motivating factor in the denial of his
WIGI and that, even if he had made such a showing, the agency demonstrated by
the considerable documentary evidence of the appellant’s performance
deficiencies that it would have taken the action anyway. RID at 4-6. Regarding
the appellant’s claim of retaliation for protected EEO activity, the administrative
judge considered that he had filed four EEO complaints. As to the complaints the
appellant filed in July 2012 and on November 30, 2012, she found that, while he
showed that he engaged in protected activity of which his supervisor who denied
his WIGI was aware, he failed to establish a nexus between the activity and the
agency’s action. RID at 7-8. As to the complaint the appellant filed on
October 30, 2013, the administrative judge found that his claim was a bare
2
The appellant did not request a hearing.
4
assertion and insufficient to meet his burden of proof. RID at 8. And, as to the
appellant’s complaint filed on April 14, 2014, the administrative judge found that
he showed that he engaged in protected activity of which his supervisor was
aware and that, based on timing, the agency’s action could have been retaliatory
such that a nexus was established. She found, however, that the agency showed
by clear and convincing evidence that it would have taken the action anyway and
that the appellant did not show that its reasons for doing so were pretextual. RID
at 8-10. The administrative judge next considered the appellant’s claim that the
agency retaliated against him for having filed the initial appeal in this case on
April 5, 2014. She found that the appellant’s supervisor was aware of this
protected activity and that the official denial of the appellant’s WIGI occurred on
May 23, 2014, 3 such that the action could have been retaliatory. RID at 10-11.
She found, however, that the appellant failed to establish a nexus between his
appeal and the official denial of his WIGI and that, in any event, the agency
showed that it would have taken the action, even absent the appellant’s Board
appeal. RID at 11‑12.
¶5 Finally, the administrative judge considered the appellant’s claim that the
agency action was in retaliation for his protected whistleblowing, specifically, his
disclosure of information regarding improper conduct during several grant
approval processes. She considered that the appellant filed a complaint with the
agency’s Office of Inspector General (OIG), emailed his second-level supervisor
regarding these matters, and filed a complaint with the Office of Special Counsel
(OSC), but she concluded that the appellant failed to establish a prima facie case
of retaliation for whistleblowing regarding these disclosures. RID at 14-17.
3
The memorandum advising the appellant of the denial of his WIGI, RF, Tab 11 at 86,
was not a part of the record in the initial proceeding.
5
Finding that the appellant failed to establish any of his affirmative defenses, the
administrative judge dismissed the appeal. 4 RID at 17.
¶6 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 2, and supplements to his petition for review, PFR File, Tabs 6‑7, the
agency has filed a response, PFR File, Tab 8, and the appellant has filed a reply
thereto, 5 PFR File, Tab 9.
¶7 On review, the appellant first puts forth a number of arguments that center
on when he was told he would be rated for fiscal year 2013, whether the rating
period was sufficient, and whether there was adequate evidence to support his
rating of Minimally Successful. PFR File, Tab 2 at 5-14. The Board already has
reversed the agency’s action denying his WIGI and ordered the agency to grant it,
and the appellant does not suggest that that has not occurred. The Board directed
the administrative judge, on remand, only to consider and analyze the appellant’s
claims of discrimination and retaliation. Ahuruonye Remand Order, ¶ 11. As
such, these claims which appear to relate to the merits of the agency’s action
denying the appellant’s WIGI are beyond the scope of the Remand Order and
will not be considered. See Umshler v. Department of the Interior, 55 M.S.P.R.
593, 597 (1992), aff’d, 6 F.3d 788 (Fed. Cir. 1993) (Table).
4
Because the Board already had reversed the agency’s action, the administrative judge
should not have dismissed the appeal upon finding that the appellant failed to establish
his affirmative defenses. Rather, she should have found that the defenses
were not proven.
5
On April 18, 2016, after the record closed on review, the appellant moved for
permission to submit additional evidence. PFR File, Tab 11. In a letter acknowledging
the appellant’s motion, the Clerk of the Board advised him that the Board’s regulations
do not provide for such pleadings, 5 C.F.R. § 1201.114(a)(5), and that, for the Board to
consider the proffered submission, he must describe the nature and need for it, and also
must show that it was not readily available before the record closed. 5 C.F.R.
§ 1201.114(a)(5), (k). PFR File, Tab 12. The evidence the appellant seeks to submit
involves what he claims transpired at a meeting that allegedly occurred on April 30,
2014. PFR File, Tab 11. Because the meeting predates not only the close of the record
on review, but also the initial decision, we deny the appellant’s request to submit
additional evidence concerning the meeting..
6
¶8 The appellant disputes the administrative judge’s finding that he failed to
establish that the denial of his WIGI was the result of race and national origin
discrimination. PFR File, Tab 2 at 14-20. In considering this claim, the
administrative judge followed the reasoning in Savage v. Department of the Army,
122 M.S.P.R. 612 (2015), wherein the Board clarified the appropriate analysis for
discrimination claims and refuted, as having no application to our proceedings,
the traditional burden-shifting scheme of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). Savage, 122 M.S.P.R. 612, ¶¶ 46-51. Rather, the
Board found, the first inquiry is whether the appellant shows by preponderant
evidence that the prohibited consideration was a motivating factor in the
contested personnel action and, in making that showing, the appellant may rely on
direct evidence or any of three types of circumstantial evidence consisting of bits
and pieces of evidence from which an inference of discriminatory intent might be
drawn, comparator evidence, and/or evidence that the agency’s stated reason is a
pretext for discrimination. Savage, 122 M.S.P.R. 612, ¶¶ 42, 51. If the appellant
meets his burden, the Board will then inquire whether the agency has shown by
preponderant evidence that it still would have taken the contested action in the
absence of the discriminatory motive, and, if the agency makes that showing, then
reversal of the action is not required. Savage, 122 M.S.P.R. 612, ¶ 51; RID
at 4‑6.
¶9 The administrative judge considered the appellant’s claim that a comparator
employee, B.G., an African-American male, also was denied a WIGI in 2013 and
that at least three white employees were granted WIGIs, but she found that the
appellant did not thereby demonstrate that his race and national origin were
motivating factors in the denial of his WIGI. RID at 4-5. She found that the
appellant failed to show that any of the comparators was similarly situated to him,
or that they were performing the same job duties at the same level, that they
reported to the same supervisor, or that they were held to the same standards.
The administrative judge went on to find that, even if the appellant had
7
demonstrated that the comparators were similarly situated, the agency showed by
preponderant evidence that it would have denied the appellant’s WIGI regardless
of his race or national origin and that its stated reason for denying the appellant’s
WIGI was not a mere pretext for discrimination. RID at 5‑6.
¶10 On review, the appellant argues that the administrative judge placed an
unreasonable burden on him to prove disparate treatment. PFR File, Tab 2
at 15‑16. In analyzing the appellant’s claim, the administrative judge followed
Savage, addressing the relevant type of circumstantial evidence that may be
considered, including evidence that employees similarly situated to the appellant
other than in the prohibited factor received better treatment. Savage,
122 M.S.P.R. 612, ¶ 42. Because the appellant’s claim of disparate treatment was
based on prohibited discrimination, the administrative judge properly used the
definition of “similarly situated” prescribed by the Equal Employment
Opportunity Commission for such cases, Spahn v. Department of Justice,
93 M.S.P.R. 195, ¶ 13 (2003) (observing that comparator employees must have
reported to the same supervisor, been subject to the same standards, and engaged
in conduct similar to the complainant’s), finding that the appellant failed to make
such a showing. RID at 5. Therefore, the administrative judge did not place an
unreasonable burden upon the appellant to prove this claim, and the evidence to
which he refers on review, PFR File, Tab 2 at 16, which concerns agency-wide
grant notes, RF, Tab 12 at 46-65, Tab 13 at 10-29, is insufficient to establish
his claim.
¶11 The appellant also challenges the administrative judge’s alternative finding
that, even if he had demonstrated that his comparators were similarly situated, the
agency showed by preponderant evidence that it would have denied his WIGI,
regardless of his race or national origin. PFR File, Tab 2 at 16. The
administrative judge found that the agency submitted dozens of pages of the
appellant’s work product from the time period in question showing that the results
8
of his Minimally Successful performance rating were warranted, justifying the
denial of his WIGI. RID at 5. While the appellant’s claim that the agency’s
evidence is “falsified” may arguably be considered as an assertion that the
agency’s stated reason for the action is a pretext for discrimination, Savage,
122 M.S.P.R. 612, ¶ 42, he has failed to support his claim with evidence. To the
extent that he is challenging the propriety of his rating, particularly the length of
the rating period, PFR File, Tab 2 at 16, we agree with the administrative judge
that such assertions do not establish that the denial of the appellant’s WIGI was a
pretext for discrimination. 6 RID at 6.
¶12 The appellant also challenges the administrative judge’s finding that he
failed to establish his claim that the agency’s action was taken in retaliation for
his whistleblowing activities. 7 PFR File, Tab 2 at 24-31. The administrative
judge first addressed the complaint the appellant filed in November 2012 with the
agency’s OIG in which he alleged that his supervisor committed misconduct,
abuse of authority, and program mismanagement regarding grant processing. RF,
Tab 5 at 122. The administrative judge found that the activity occurred more than
a year before the agency’s action such that there was no temporal proximity to
indicate that it was retaliatory, RID at 16, and further that the appellant failed to
establish that his supervisor was aware of the appellant’s OIG complaint naming
her. The administrative judge also addressed the email the appellant sent to his
second-level supervisor (his supervisor’s immediate supervisor) on April 19,
6
On July 13, 2016, the appellant filed a motion for leave to submit exhibits “that
recently became available,” specifically evidence that comparator employee B.G. “was
denied a WIGI due to his race.” PFR File, Tab 14. For the reasons set forth above,
including that the agency demonstrated by preponderant evidence that it would have
denied the appellant’s WIGI regardless of his race or national origin, we deny the
appellant’s motion for leave to submit additional exhibits on this issue.
7
The appellant does not challenge on review the administrative judge’s findings that he
failed to establish his claim that the agency’s action was in retaliation for his having
filed four EEO complaints and the initial appeal in this case. We discern no basis upon
which to disturb those findings.
9
2014, in which the appellant asserted that he had concerns about his relationship
with his supervisor and her alleged mismanagement of the grants program. RF,
Tab 5 at 62. The administrative judge found that the activity occurred close in
time to the official denial of the appellant’s WIGI, but that there was no evidence
showing that his supervisor was aware of the disclosure, and that, even if the
appellant had satisfied this element, he did not establish that the activity was a
contributing factor in the agency’s denial of his WIGI. Lastly, the administrative
judge addressed the complaint the appellant filed with OSC on May 1, 2014. RF,
Tab 5 at 78. While the administrative judge found that the activity occurred close
in time to the official denial of the appellant’s WIGI, she found that he did not
demonstrate that his supervisor was aware of it and that, even if she were, the
agency presented strong evidence in support of its reasons for denying the
appellant’s WIGI. RID at 15‑16. The administrative judge concluded, therefore,
that the appellant failed to establish that his protected activities were a
contributing factor in the agency’s denial of his WIGI and that he failed thereby
to establish a prima facie case of retaliation for whistleblowing regarding that
disclosure. RID at 15‑17.
¶13 In disputing the administrative judge’s findings that he failed to establish
that any of his protected activities was a contributing factor in the agency’s denial
of his WIGI, the appellant focuses on his claim that his supervisor, and the
agency in general, had a motive to retaliate against him because of his complaints
about improper conduct during grant approval processes. PFR File, Tab 2
at 27‑30. The administrative judge acknowledged that the “knowledge/timing”
test is not the only way in which an appellant can establish that his protected
activity was a contributing factor in the agency’s action and that he may provide
other evidence, such as that pertaining to the strength or weakness of the agency’s
reasons for taking the action, whether the protected activity was personally
directed at the agency official who took the action, and whether that individual
10
had a motive to retaliate against the appellant. RID at 14; Rumsey v. Department
of Justice, 120 M.S.P.R. 259, ¶ 26 (2013). In each instance, the administrative
judge found that the appellant did not show that his supervisor had a motive to
retaliate against him and that the agency presented strong evidence demonstrating
its reasoning for denying the appellant’s WIGI. RID at 15‑17; RF, Tab 11
at 15-37, 38-56, 58-84. However, the fact that the appellant’s disclosures were
directed at his supervisor may have provided her a motive to retaliate against him.
Notwithstanding, we agree with the administrative judge that the agency
demonstrated that it had strong reasons for denying the appellant’s WIGI 8 and
that therefore he did not establish that his whistleblowing was a contributing
factor in the agency’s decision. 9
¶14 On review, the appellant alleges that the administrative judge failed to
sanction the agency for not responding to her order reopening the record. PFR
File, Tab 2 at 30-31. After the record closed below, the administrative judge
reopened the record to alert the parties to the Board’s recently-issued Savage
decision, and to allow the appellant an opportunity to submit any additional
evidence or argument that may be required to meet his burden as set forth in
8
The basis for the Board’s reversal of the agency’s decision denying the appellant’s
WIGI to step 3 was not that his actual performance warranted granting the WIGI, but
rather that the agency failed to provide him notice that this performance was not at an
acceptable level of competence so as to justify denying him a WIGI. Ahuruonye
Remand Order, ¶¶ 9-10. Similarly, the reason the agency’s decision denying the
appellant’s WIGI to step 2 was reversed was not that his performance warranted a
WIGI, but rather the administrative judge’s finding that the agency failed to provide
him a rating of record before the end of the appraisal period, a requirement for denying
a WIGI. Ahuruonye v. Department of the Interior, MSPB Docket No. DC-531D-13-
1273-I-1, Initial Decision (Feb. 28, 2014).
9
We need not address the appellant’s argument that the agency failed to show by clear
and convincing evidence that it would have denied his WIGI, even absent his
disclosures. PFR File, Tab 2 at 29. Because the appellant did not make his
“contributing factor” showing by the requisite preponderant evidence, the burden of
persuasion did not shift to the agency. Alarid v. Department of the Army, 122 M.S.P.R.
600, ¶ 14 (2015). This is so despite the fact that the administrative judge made
alternative findings on this issue. See, e.g., RID at 14 n.1, 15 n.2.
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Savage. The administrative judge afforded the agency 10 days from the date of
the appellant’s response in which to submit a reply, after which the record would
again close. RF, Tab 25. The appellant did submit a response, RF, Tab 26, but
the agency did not submit a reply.
¶15 The imposition of sanctions is a matter within the administrative judge’s
sound discretion, and, absent a showing that such discretion has been abused, the
administrative judge’s determination will not be found to constitute reversible
error. Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 11 (2011), aff’d,
498 F. App’x 1 (Fed. Cir. 2012). In this instance, the appellant did not request
below that the agency be sanctioned for not replying to his response, and the
administrative judge therefore made no determination. In any event, the basis for
the reopening concerned the means by which the appellant could meet his burden
of proof regarding his affirmative defenses under current case law, a matter which
the agency apparently determined did not warrant any action on its part. The
appellant has not shown that the agency exhibited bad faith or that sanctions were
necessary to serve the ends of justice. 5 C.F.R. § 1201.43. Consequently, we
find that the appellant has not shown any abuse of discretion by the
administrative judge. El v. Department of Commerce, 123 M.S.P.R. 76,
¶ 16 (2015).
¶16 Finally, the appellant argues on review that the Board should sanction
agency counsel for allegedly having committed perjury in one of the appellant’s
previous Board appeals. PFR File, Tab 3 at 5-6. Any such claim is beyond the
scope of the Board’s Remand Order in the instant case, see Umshler, 55 M.S.P.R.
at 597, and therefore we will not consider it.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request further review of this final decision. There are several options for further
12
review set forth in the paragraphs 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 10
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
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
10
The remand initial decision failed to include notice of the appellant’s right to pursue
his discrimination claims to the Equal Employment Opportunity Commission or an
appropriate U.S. District Court. RID at 18-22. We provide those rights in this
Final Order.
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discrimination claims and your other claims in an appropriate United States
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 very 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.
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 competent 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
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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
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.