Filed: Dec. 08, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BARRY AHURUONYE, DOCKET NUMBERS Appellant, DC-1221-15-1012-W-1 DC-1221-14-0911-W-1 v. DC-1221-15-0156-B-1 DC-1221-15-0201-B-1 DEPARTMENT OF THE INTERIOR, DC-1221-15-0339-B-1 Agency. DC-1221-15-0634-W-1 DC-1221-15-1112-W-1 DC-1221-15-1034-W-1 DC-1221-15-1144-W-1 DC-531D-15-0242-B-1 DATE: December 8, 2016 THIS FINAL ORDER IS NONPRECEDENTIAL 1 Barry Ahuruonye, Hyattsville, Maryland, pro se. Deborah Charette, Esquire, Washington, D.C., for the
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BARRY AHURUONYE, DOCKET NUMBERS Appellant, DC-1221-15-1012-W-1 DC-1221-14-0911-W-1 v. DC-1221-15-0156-B-1 DC-1221-15-0201-B-1 DEPARTMENT OF THE INTERIOR, DC-1221-15-0339-B-1 Agency. DC-1221-15-0634-W-1 DC-1221-15-1112-W-1 DC-1221-15-1034-W-1 DC-1221-15-1144-W-1 DC-531D-15-0242-B-1 DATE: December 8, 2016 THIS FINAL ORDER IS NONPRECEDENTIAL 1 Barry Ahuruonye, Hyattsville, Maryland, pro se. Deborah Charette, Esquire, Washington, D.C., for the a..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARRY AHURUONYE, DOCKET NUMBERS
Appellant, DC-1221-15-1012-W-1
DC-1221-14-0911-W-1
v. DC-1221-15-0156-B-1
DC-1221-15-0201-B-1
DEPARTMENT OF THE INTERIOR, DC-1221-15-0339-B-1
Agency. DC-1221-15-0634-W-1
DC-1221-15-1112-W-1
DC-1221-15-1034-W-1
DC-1221-15-1144-W-1
DC-531D-15-0242-B-1
DATE: December 8, 2016
THIS FINAL ORDER IS NONPRECEDENTIAL 1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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the agency’s decision to deny him a within-grade increase (WIGI) and
denied his requests for corrective action in his individual right of action (IRA)
appeals. 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 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 . Except as
expressly MODIFIED by this Final Order, which addresses several arguments
raised by the appellant below that were not discussed in the initial decision, we
AFFIRM the initial decision.
¶2 The appellant, a Grants Management Specialist with the agency’s U.S. Fish
and Wildlife Service, filed a Board appeal challenging the agency’s denial of a
WIGI in November 2014, as well as multiple IRA appeals alleging that, in
reprisal for his whistleblowing and filing an IRA appeal, the agency issued him a
letter of reprimand, issued him an unsatisfactory performance rating, which
resulted in him being denied a promotion and training, issued him a leave
restriction letter, charged him with absence without leave (AWOL), placed him
on a performance improvement plan (PIP), unlawfully terminated his medical and
other employment benefits, and issued him a notice of proposed removal.
Ahuruonye v. Department of the Interior, MSPB Docket No. DC-531D-15-0242-
3
B-1, Remand File, Tab 1; Ahuruonye v. Department of the Interior, MSPB Docket
No. DC-1221-14-0911-W-1, Initial Appeal File (0911 IAF), Tab 1 at 5;
Ahuruonye v. Department of the Interior, MSPB Docket No. DC-1221-15-0201-
B-1, Remand File, Tab 1; Ahuruonye v. Department of the Interior, MSPB Docket
No. DC-1221-15-0156-B-1, Remand File, Tab 1; Ahuruonye v. Department of the
Interior, MSPB Docket No. DC-1221-15-0634-W-1, Initial Appeal File
(0634 IAF), Tab 1 at 5-6, 55-57, 82-84, 103, 129; Ahuruonye v. Department of the
Interior, MSPB Docket No. DC-1221-15-1012-W-1, Initial Appeal File
(1012 IAF), Tabs 1, 6; Ahuruonye v. Department of the Interior, MSPB Docket
No. DC-1221-15-1034-W-1, Initial Appeal File, Tab 1 at 5; Ahuruonye v.
Department of the Interior, MSPB Docket No. DC-1221-15-0339-B-1, Remand
File, Tab 1; Ahuruonye v. Department of the Interior, MSPB Docket No.
DC-1221-15-1144-W-1, Initial Appeal File, Tab 1 at 5; Ahuruonye v. Department
of the Interior, MSPB Docket No. DC-1221-15-1112-W-1, Initial Appeal File,
Tab 1 at 4-5. The administrative judge joined the appeals upon finding that doing
so would expedite their processing without adversely affecting the interests of the
parties. 1012 IAF, Tab 37.
¶3 Based on the written record because the appellant did not request a hearing,
the administrative judge affirmed the WIGI denial and found that the appellant
did not prove his entitlement to corrective action. 1012 IAF, Tab 68, Initial
Decision (ID) at 1-2, 36. The administrative judge found that the agency proved
by substantial evidence that the appellant was not performing at an acceptable
level of competence, and that the appellant did not prove that the denial of a
WIGI was based on reprisal for whistleblowing. ID at 5-15. The administrative
judge also found that the appellant proved by preponderant evidence that he made
protected disclosures to his second-level supervisor and others that he reasonably
believed that his supervisor engaged in improper conduct in violation of the
agency’s laws and regulations in approving funding for certain grant projects. ID
at 17-19. The administrative judge further found that the appellant engaged in
4
protected activity under 5 U.S.C. § 2302(b)(9)(A)‑(C) when he filed numerous
appeals and complaints with the Board, the Office of Special Counsel, and the
agency’s Office of Inspector General (OIG). ID at 20. In addition, the
administrative judge held that the appellant established by preponderant evidence
that his protected disclosures and activities were contributing factors in the
performance-related and disciplinary actions at issue in this case, but not the
decision to deny him health benefits. ID at 21-23. The administrative judge
did not order corrective action, however, upon finding that the agency proved by
clear and convincing evidence that it would have issued the appellant an
unsatisfactory performance rating, placed him on a PIP, proposed his removal ,
issued him a letter of reprimand, and placed him on leave restriction and in an
AWOL status absent any whistleblowing activity. ID at 23-33. Finally, the
administrative judge found that the appellant did not prove discrimination or
reprisal for equal employment opportunity (EEO) activity. ID at 33-36.
¶4 The appellant appears to allege on review that the administrative judge
should have given collateral estoppel and res judicata effect in his WIGI denial
and IRA appeals to a prior Board decision reversing the agency’s denial of a 2013
WIGI. Petition for Review (PFR) File, Tab 1 at 4-5, 19-21. The appellant filed a
motion below asserting that collateral estoppel and res judicata should be applied
in this case based on a claim that the agency was attempting to relitigate the
“10/17/13 EPAP [Employee Performance Appraisal Plan] in this performance
appeal[].” 1012 IAF, Tab 23 at 6. More specifically, it appears that the appellant
alleged below that the agency improperly had asserted that the same
October 2013 EPAP applied to his performance for both fiscal year (FY) 2013
and FY 2014. Id. at 7-8. The administrative judge denied the motion, finding the
claim “indecipherable” and noting that the appellant had “himself raised the issue
of his 2014 performance approval plan in numerous pleadings.” 1012 IAF,
5
Tab 38 at 3‑4. The administrative judge afforded the appellant an opportunity to
clarify the argument and include it in his final submission. Id.
¶5 We find that the appellant’s argument in this regard remains unclear even
on review. To the extent that he asserts that the agency used the same EPAP for
both fiscal years, the record reflects that the first pages of the performance plans
for FY 2013 and FY 2014 were distinct documents with different appraisal
periods and different progress review and summary rating signatures and dates.
Compare Ahuruonye v. Department of the Interior, MSPB Docket No. DC-531D-
15-0242-I‑1, Initial Appeal File (0242 IAF), Tab 21 at 22, with 0242 IAF, Tab 27
at 4. In any event, collateral estoppel and res judicata do not apply here because
any prior Board finding regarding the appellant’s performance plan as it related to
his appeal of a 2013 WIGI denial involved a different issue and cause of action
from the findings in this case involving a subsequent denial of a WIGI, a
placement on a PIP, and an unsatisfactory performance rating. See Kroeger v.
U.S. Postal Service, 865 F.2d 235, 239 (Fed. Cir. 1988) (finding that collateral
estoppel is appropriate when, among other things, an issue is identical to that
involved in the prior action); Peartree v. U.S. Postal Service, 66 M.S.P.R. 332,
337 (1995) (finding that res judicata precludes parties from relitigating issues that
were, or could have been, raised in the prior action, and applies if, among other
things, the same cause of action was involved in both cases).
¶6 The appellant further contends that the record included direct evidence of
reprisal for protected activities because the agency’s representative indicated in
MSPB Docket No. DC-531D-15-0242-I-1 that the agency denied the WIGI
because of the appellant’s “related appeals.” PFR File, Tab 1 at 5. The appellant,
however, has misconstrued a statement made in the agency’s close of record
statement in that case. The agency’s representative asserted that the Board lacked
jurisdiction over the appeal, but also claimed that “[r]egardless of jurisdiction, the
Agency requests that the Administrative Judge issue a finding in this matter as to
6
whether the Agency would have taken the action by clear and convincing
evidence given the pending related appeals.” 0242 IAF, Tab 21 at 4. The
agency’s representative noted that the appellant had three pending appeals in
which he claimed reprisal for whistleblowing. Id. at 4 n.1. We find that this
statement made in a pleading filed by a representative, which merely requests a
finding as to whether the agency proved by clear and convincing evidence that it
would have taken the same action in the absence of the disclosures , does not
constitute evidence, let alone direct evidence of reprisal for protected activities.
See Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995).
¶7 The appellant also asserts that the administrative judge should have
sanctioned the agency’s representative for perjury when he incorrectly asserted
that B.G., a coworker of the appellant’s who also was rated unsatisfactory, placed
on a PIP, and issued a proposed removal letter, was not a whistleblower. PFR
File, Tab 1 at 6. Regardless of whether this assertion by the agency’s
representative was ultimately correct, we find that this assertion was not made
under penalty of perjury and is not evidence. 1012 IAF, Tab 53 at 3, 13; see
Hendricks, 69 M.S.P.R. at 168. Therefore, the appellant’s argument provides no
basis for disturbing the findings made in the initial decision or imposing
sanctions upon the agency. See 5 C.F.R. § 1201.43.
¶8 The appellant further disputes the administrative judge’s finding that he
did not contest the approval of his performance standards by the Office of
Personnel Management (OPM) and did not clearly explain why his performance
standards were invalid. PFR File, Tab 1 at 6-7. The administrative judge found
that “the appellant did not contest the fact that the performance standards issued
to him were approved by OPM, and failed to clearly explain why the performance
standards issued to him were not valid.” ID at 13-14. The record includes,
however, a pleading in which the appellant asserted that the agency had not
obtained the required OPM approval and questioned the validity of his
performance standards. 1012 IAF, Tab 25 at 4-15. In particular, the appellant
7
asserted that the agency’s performance appraisal system was in effect in
October 2004, after its August 2004 request for approval and more than 90 days
before OPM approved it on February 4, 2005, and that the agency made changes
to his performance plan without obtaining OPM’s approval. Id. at 6-7. To the
extent that these arguments were not addressed by the administrative judge below,
we address them now and modify the initial decision accordingly.
¶9 An agency shall submit to OPM for approval a description of its appraisal
system “and any subsequent changes that modify any element of the agency’s
system(s) that is subject to a regulatory requirement in this part.” 5 C.F.R.
§ 430.209(a). The record includes a February 4, 2005 letter from OPM to the
agency approving its performance appraisal system. 1012 IAF, Tab 25 at 18.
Regardless of the effective date of OPM’s approval of the agency’s performance
appraisal system, the appellant has not explained how any such approval in 2005
affects the validity of the performance appraisal system under which he worked at
the time of the 2014 WIGI denial at issue in this case. Moreover, any changes the
agency made to the appellant’s performance plans over the years do not evince an
alteration of the underlying appraisal system, see Lee v. Environmental Protection
Agency, 115 M.S.P.R. 533, ¶ 28 (2010), and thus did not require OPM’s approval,
see 5 C.F.R. § 430.203 (defining “appraisal system” and “performance plan”) .
The appellant has not, therefore, provided a basis for overturning the
administrative judge’s determination that the agency proved by substantial
evidence that it properly denied him a WIGI.
¶10 The appellant further contends that the administrative judge should have
found that the agency did not meet its clear and convincing evidence burden
because the agency did not treat any misconduct by his supervisor regarding grant
awards as a performance issue. PFR File, Tab 1 at 7. In this regard, the appellant
contends that the administrative judge should have applied Shibuya v. Department
of Agriculture, 119 M.S.P.R. 537 (2013), to this case. PFR File, Tab 1 at 7.
8
¶11 We find that Shibuya is distinguishable from this appeal. In Shibuya,
119 M.S.P.R. 537, ¶¶ 34-36, the Board found no reason to disturb the
administrative judge’s finding that the agency treated nonwhistleblowers less
harshly than it treated the appellant because the agency “failed to investigate the
[Chief Financial Officer’s] misconduct even after it learned of it, whereas the
agency immediately moved the appellant out of his position and instituted an
investigation when it learned of his misconduct.” Here, by contrast, the
appellant’s disclosure did result in OIG’s investigating the allegation. The record
includes a copy of the OIG’s final report, which found significant deficiencies in
the management of Coastal Impact Assistance Program grants by the agency and
the State of Louisiana. 0634 IAF, Tab 10 at 7. The report includes
30 recommendations made by the OIG, none of which, however, suggest that the
appellant’s supervisor engaged in misconduct or that the agency should take a
disciplinary or performance-based action against her. Id. at 14-43. 2 Even
considering any failure by the agency to take action against the appellant’s
supervisor under the above circumstances, we find that the agency has
nevertheless proven by clear and convincing evidence that it would have taken the
same actions against the appellant in the absence of his whistleblowing. ID
at 15-16, 23-33; see Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed.
Cir. 2012) (“Evidence only clearly and convincingly supports a conclusion when
it does so in the aggregate considering all the pertinent evidence in the record,
and despite the evidence that fairly detracts from that conclusion.”).
¶12 In addition, the appellant asserts that the administrative judge improperly
denied his motion to compel the agency to provide him with “official notice of
‘Within-in Grade-Notice’ and [Standard Form] 52 for unlawful health benefit
termination that would have shown that WIGI was denied prior to 11/28/14
2
In its response to the OIG’s draft report, the agency identified an individual that
was not the appellant’s supervisor as the “responsible official” for each of t he OIG’s
recommendations. 0634 IAF, Tab 10 at 54-68.
9
rating.” PFR File, Tab 1 at 7. It does not appear that the appellant filed a motion
to compel in any of the 10 appeals that have been joined in this case. PFR File,
Tab 7 at 8. 3 The administrative judge noted that the appellant had filed a motion
to compel in a nonjoined case and that he had denied that motion. 1012 IAF,
Tab 38 at 4. Thus, the appellant has shown no basis for finding an abuse of
discretion by the administrative judge in ruling on discovery matters in these
joined appeals.
¶13 Further, the appellant asserts that, contrary to his supervisor’s declaration
and the administrative judge’s finding that he routinely had inaccuracies in award
letters he prepared, preparing a manual award letter was not a part of his “job
description.” PFR File, Tab 1 at 7-8. He similarly asserts that he was not
responsible for preparing milestone plans because a contractor had that
responsibility and he did not have system access to “edit” the milestone plan
information. Id. at 17. Regardless of the nature of the appellant’s job
description, the responsibility of a contractor, or the appellant’s ability to edit
milestone plan information, the administrative judge correctly found that one of
his critical elements in his performance appraisal plan required him to meet
certain numerical criteria regarding drafting award letters and completing
milestone plans. ID at 8-9, 12; 0242 IAF, Tab 21 at 22-26.
¶14 The appellant also contends that he could not have committed errors in
calculating total grant funding because that information was “already
pre‑populated when a requisition is approved,” the agency did not prove that he
failed to consistently respond to emails in a timely fashion, and the agency’s
documentation of his unsatisfactory performance include d work produced by
other employees. PFR File, Tab 1 at 8, 11-12. Again, regardless of whether any
3
The appellant filed a motion to compel in Ahuruonye v. Department of the Interior,
MSPB Docket No. DC-531D-15-0242-I-1, Remand Order, ¶ 6 n.4 (June 29, 2015),
seeking documentation that would show the actual date of a WIGI denial. The Board
found the issue moot in light of its finding of jurisdiction in that case. Id.
10
documents the appellant prepared were “pre-populated,” the critical elements in
his performance appraisal plan required him to “[a]ccurately complete[] all forms
of correspondence/communication” and complete milestone plans in a timely and
accurate manner. 0242 IAF, Tab 21 at 24. Moreover, substantial evidence in the
record, including several examples set forth by the appellant’s supervisor,
supports the administrative judge’s finding that the appellant did not respond to
emails in a timely fashion. Id. at 33; 1012 IAF, Tab 53 at 20. The appellant’s
contention that the agency included work performed by other employees in its
documentation of his unsatisfactory performance does not demonstrate error in
the initial decision. The record includes, for example, documentation showing
errors made by the appellant concerning grant number F12AP00048. 0242 IAF,
Tab 23 at 135-43. Although some of the documents refer to another employee,
W.J., as the “owner” of the grant as of March 31, 2013, the documents also
identify the appellant as the “owner” as of September 2, 2014, when the
appellant’s supervisor notified him of the errors he had made, and list him as one
of the contacts in the draft grant letter. Id. at 136, 139-41. Despite these types of
references to other employees, the record includes substantial evidence showing
that the appellant’s work was not of an acceptable level of competence. See, e.g.,
id. at 6-202; see also Smith v. Department of Agriculture, 64 M.S.P.R. 46,
56 (1994) (finding that an agency must support its decision to withhold a WIGI
by substantial evidence, i.e., the degree of relevant evidence that a reasonable
person, considering the record as a whole, might accept as adequate to support a
conclusion, even though other persons might disagree).
¶15 Although the appellant asserts on review that his supervisor had a role in
terminating his health benefits, and thus his disclosure was a contributing factor
in that action, this contention is based solely on the fact that his supervisor
proposed his removal for unsatisfactory performance. PFR File, Tab 1 at 22‑24.
He has shown no error in the administrative judge’s reliance on a declaration
made under penalty of perjury by a human resources employee that the supervisor
11
did not direct, and otherwise had no role in, the issuance of the OPM form used to
notify the agency of a change in health benefits enrollment, the form could only
be processed and certified by human resources employees, and neither the
supervisor nor any other individual outside of human resources had access to the
appellant’s records. ID at 22-23; see 1012 IAF, Tab 41 at 10‑11. Moreover, the
forms in question are electronically signed by an individual who is not the
appellant’s supervisor. 1012 IAF, Tab 41 at 13-14.
¶16 The appellant also contends that, although the administrative judge found
that the agency proved by clear and convincing evidence that it would have issued
him a letter of reprimand in the absence of his disclosures, the administrative
judge only addressed one of the two reasons the agency set forth in the letter of
reprimand. PFR File, Tab 1 at 26-27. The appellant asserts that the agency
did not prove the second reason, that he held a land acquisition grant for 200 days
without processing it, because “the grantee placed this grant on hold and later
rescinded it.” Id. at 27. He further claims that he did not fail to follow
procedures and supervisory instructions by not meeting a July 16, 2014 deadline
to complete all grant reviews and filings before an office move, which was the
first reason set forth in the letter, because another employee placed grant
applications on his desk on his telework days. Id. at 26-28.
¶17 The agency charged the appellant in the letter of reprimand with Failure to
Follow Procedures and Failure to Follow Supervisory Instructions , followed by a
narrative description of the basis for the charges. 0911 IAF, Tab 11 at 9-11. As
the administrative judge found, ID at 27-28, the letter of reprimand asserted that
the appellant failed to follow repeated instructions to meet a July 16, 2014
deadline to remove grant files from work stations in preparation for an office
move, 0911 IAF, Tab 11 at 9. The appellant’s contention that he left work on his
desk because of his telework schedule does not establish a basis for his failure to
follow his supervisor’s instructions. The letter of reprimand indicates, and the
12
appellant does not deny, that he was in the office on July 16, 2014, yet he did not
follow the instructions at that time. 0911 IAF, Tab 11 at 9.
¶18 Although not addressed by the administrative judge, we modify the initial
decision by finding that the letter of reprimand also noted that, at the close of
business on July 16, 2014, the appellant’s supervisor found on his desk a grant
file relating to a land acquisition that had been assigned to him for 200 days for
processing. Id. We find that the matter relating to the land acquisition grant file
merely describes in-depth one of the files that the appellant failed to remove by
the deadline and is not an additional specification to be proven. See Robb v.
Department of Defense, 77 M.S.P.R. 130, 133 (1997) (finding that a charge
should not be technically construed, but instead should be construed in light of
the accompanying specifications and circumstances); cf. id. at 133-34 (finding
that the “for ten (10) days or more” part of the agency’s AWOL charge was
descriptive in nature rather than an additional element of the charge ). In any
event, to the extent that the language in the letter of reprimand regarding the land
acquisition grant file could be construed as a separate specification, the
administrative judge need not have considered it as such upon finding that there
was a sufficient basis for the letter of reprimand based solely on the failure to
meet the deadline, and that the agency met its burden of proving that it would
have taken the same action in the absence of the appellant’s disclosures.
Cf. Hicks v. Department of the Treasury, 62 M.S.P.R. 71, 74 (1994) (requiring an
agency to prove only the essence of its charge and not each factual specification
supporting the charge), aff’d, 48 F.3d 1235 (Fed. Cir. 1995) (Table).
¶19 Finally, the appellant asserts that he was either at work, on administrative
or other approved leave, attending a Board prehearing conference, or meeting
with an EEO investigator on the dates on which the agency placed him on AWOL.
PFR File, Tab 1 at 30-32. The appellant has not identified on review, however,
any evidence in the record that would support his claims regarding his activities
on the dates in question. In any event, the administrative judge found that the
13
agency submitted strong evidence in support of its action because the appellant
had been subject to a leave restriction letter on all of the charged dates, there was
no credible evidence in the record to indicate that he followed the appropriate
process for requesting leave or notifying the agency of a late arrival, and the
placement on AWOL for March 27, 2015, was due to a clerical mistake by a
human resources employee who had no motive to retaliate against h im. ID
at 31‑33. The appellant does not allege on review that he complied with the
leave restriction letter. Moreover, a declaration made under penalty of perjury by
the appellant’s supervisor supports the agency’s having placed the appellant on
AWOL on the dates in question. 1012 IAF, Tab 53 at 23-25.
¶20 After the close of the record on review, the appellant submitted a motion to
submit an exhibit relating to the agency’s alleged unlawfully terminating a health
benefit on April 17, 2015. PFR File, Tab 9. In particular, the appellant seeks to
submit a “medical health payment collection action letter” for $91.03 for the pay
period covering April 18, 2015, to May 2, 2015. Id. at 4. The appellant contends
that this letter shows that he suffered additional harm, including an action by the
Department of Justice to collect a debt and an asset seizure by the Department of
the Treasury, and that the agency did not correct its unlawful termination of his
health insurance. Id. at 4, 6. The appellant asserts that “this emerged after the
close of the record in this appeal.” Id. at 4.
¶21 The appellant also submitted after the close of the record on review a
request for leave to file an additional exhibit comprising a pleading filed by the
Department of Justice on August 5, 2016, in a Freedom of Information Act case
filed by the appellant in U.S. district court. PFR File, Tab 12. The appellant
appears to contend that this pleading will show that the agency terminated him on
April 14, 2015, not April 24, 2015, and that this demonstrates that the unlawful
14
termination of his health benefits was caused by his April 14, 2015 termination
from employment and not an administrative error. Id. at 4-6. 4
¶22 The administrative judge found that the appellant did not prove that his
whistleblowing was a contributing factor in the decision to terminate his health
benefits because he did not show that the acting officials were aware of his
disclosures. ID at 22-23. The evidence the appellant proposes to submit on
review relates to the harm he alleges he suffered as a result of this action and the
date of his removal, and is not material to the merits of his claim that the agency
terminated his health benefits in reprisal for whistleblowing. Thus, we deny his
requests to supplement the record. See Brown v. Department of Defense,
121 M.S.P.R. 584, ¶ 5 n.2 (2014), vacated on other grounds, 646 F. App’x 989
(Fed. Cir. 2016); Hooker v. Department of Veterans Affairs, 120 M.S.P.R. 629,
¶4 n.4 (2014); 5 C.F.R. § 1201.114(a)(5), (k); cf. Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (holding that the Board will not grant
a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the
initial decision).
¶23 Accordingly, we affirm the administrative judge’s decision to sustain the
agency’s denial of a WIGI and deny the appellant’s requests for corrective action.
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
4
The appellant filed a third motion seeking leave to submit exhibits consisting of a
revised leave and earnings statement and an individual payroll record. PFR File, Tab
14. The appellant asserts that these documents will help clarify issues relating to the
agency’s compliance with an order issued by the Board in a separate appeal involving
the denial of a WIGI. Id. at 4; see Ahuruonye v. Department of the Interior, MSPB
Docket No. DC-531D-14-0587-B-2. Because the motion relates to an appeal that has
not been joined with the appeals that are under consideration in this decision, we deny
the motion.
15
request further review of this final decision. There are several options for further
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
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
discrimination claims and your other claims in an appropriate U .S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
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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 United States Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance 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.
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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.
