                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BARRY AHURUONYE,                                DOCKET NUMBER
                 Appellant,                          DC-1221-15-1172-W-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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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 initial decision, which
     denied his request for corrective action in connection with his individual right of
     action (IRA) appeal. The administrative judge found that the agency proved by
     clear and convincing evidence that it would have taken the same action, even
     absent the appellant’s whistleblowing.      As set forth below, we VACATE that

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     finding as extraneous, find that the appellant failed to establish that his protected
     disclosures were a contributing factor in the agency’s action, and DENY his
     request for corrective action on that basis.
¶2         On September 5, 2014, the appellant, a GS-9 Grants Management
     Specialist, filed a complaint with the Office of Special Counsel (OSC) in which
     he alleged that, on May 15, 2013, he became ill at work and was taken to the
     hospital where he was diagnosed with work stress and syncope, a fainting or loss
     of consciousness caused by a temporary lack of blood flow to the brain; that the
     agency delayed providing him with Office of Workers’ Compensation Programs
     (OWCP)       Form   CA-2,   Notice   of    Occupational   Disease   and   Claim   for
     Compensation, finally doing so on January 29, 2014; and that on February 7,
     2014, he requested that his then-supervisor, L.V.A., complete her portion of the
     CA-2, the Supervisor’s Report, required for the form to be transmitted to the
     Department of Labor for processing, but that she failed to do so. Initial Appeal
     File (IAF), Tab 1 at 17-28. The appellant claimed that L.V.A. refused to take this
     action in retaliation for his having made protected disclosures to agency
     management and the Office of Inspector General (OIG) in November 2012
     regarding what he claimed were illegal grant awards made by the Grants Program
     Chief. Id.
¶3         After OSC determined to close its inquiry into the appellant’s allegations,
     IAF, Tab 3, he filed an IRA appeal with the Board wherein he alleged that his
     supervisor’s failure to complete her portion of the CA‑2 was a violation of
     20 C.F.R. § 10.110(a) and (b), which requires the employer to complete its
     portion within 10 days of receiving the notice of claim and to submit it to OWCP
     within 10 days, IAF, Tab 1 at 4-5.        The appellant asserted that he reasonably
     believed the disclosures he made in November 2012 regarding the allegedly
     illegal grant awards evidenced a violation of law, rule, or regulation, as well as
     gross mismanagement by the agency. Id. at 10. He declined a hearing before the
     Board. Id. at 2.
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¶4         The agency moved that the appeal be dismissed for lack of jurisdiction on
     the basis that L.V.A. lacked knowledge of the appellant’s disclosures at the time
     of the action such that they could not have contributed to the action, and that,
     even if the appellant’s disclosures did contribute to the agency’s action, the
     agency showed by clear and convincing evidence that it would have taken that
     action absent any disclosures because the appellant failed to submit a completed
     CA-2 to L.V.A., as required. IAF, Tab 8.
¶5         During a conference with the parties, the administrative judge notified them
     that it appeared that the appellant had argued the same basis for whistleblower
     retaliation in a previous appeal, Ahuruonye v. Department of the Interior, MSPB
     Docket No. DC-1221-15-1012-W-1, that the administrative judge could consider
     the jurisdictional arguments raised in that prior appeal to determine whether the
     Board had jurisdiction in this proceeding, and that, in fact, the Board did have
     jurisdiction over the appeal. 2 The administrative judge then advised the appellant
     of what he had to establish to prevail on the merits of his claim, IAF, Tab 15, and
     both parties made subsequent submissions, IAF, Tabs 19, 20-23. In his initial
     decision based on the written record, the administrative judge denied the
     appellant’s request for corrective action, finding that the agency showed by clear
     and convincing evidence that it would have taken the same action in the absence
     of any whistleblowing by the appellant.      IAF,   Tab 24, Initial Decision (ID)
     at 1, 5.
¶6         After establishing the Board’s jurisdiction in an IRA appeal, as the
     administrative judge found the appellant did in this case, an appellant must
     establish a prima facie case of whistleblower retaliation by proving by
     preponderant evidence that he made a protected disclosure that was a contributing
     factor in a personnel action taken against him.      5 U.S.C. § 1221(e)(1); Lu v.

     2
       Neither party noted an objection or offered additional evidence or argument on the
     jurisdictional issue.    IAF, Tab 15 at 2.       Nor has the agency challenged the
     administrative judge’s jurisdictional finding on review.
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     Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). If the appellant
     makes out a prima facie case, then the agency is given an opportunity to prove by
     clear and convincing evidence that it would have taken the same personnel action
     in the absence of the protected disclosure.          5 U.S.C. § 1221(e)(1)-(2); Lu,
     122 M.S.P.R. 335, ¶ 7.
¶7         Here, although the administrative judge correctly advised the appellant of
     what he had to establish to prevail on the merits of his whistleblowing claim,
     IAF, Tab 15, the administrative judge erred in resolving the case by finding that
     the agency met its burden of showing by clear and convincing evidence that it
     would have taken the same action even absent the appellant’s disclosures, without
     first finding that he established his prima facie case.       Because the record is
     complete, however, we now undertake the appropriate analysis.                Panter v.
     Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an
     adjudicatory error that is not prejudicial to a party’s substantive rights provides
     no basis for reversal of an initial decision).
¶8         A series of emails between the appellant and the OIG demonstrates that he
     filed a complaint against the Grants Program Chief, accusing her of misconduct,
     abuse of authority, and program mismanagement in connection with certain grant
     awards he alleged were illegal.       IAF, Tab 1 at 28-34.     Given the appellant’s
     position as a Grants Management Specialist, and the liberal standard set forth in
     the whistleblower statute for determining whether the appellant had a reasonable
     belief that he was disclosing “any” violation of law, rule, or regulation, we find
     that the appellant established by preponderant evidence that he had such a
     reasonable belief.      Further, the agency has presented no evidence that would
     provide a basis to find that the appellant’s belief, based on his own knowledge,
     was not reasonable. 3



     3
       Although not dispositive, we note that the OIG conducted an investigation in response
     to an audit conducted by its Office of Audit, Inspections, and Evaluations which
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¶9          We find, however, that the appellant failed to prove that his protected
      disclosures were a contributing factor in the agency’s failure to process the CA-2
      because he has not shown that L.V.A. knew of his disclosures in February 2014,
      when she took the complained-of action.           See Rubendall v. Department of
      Health & Human Services, 101 M.S.P.R. 599, ¶ 12 (2006).                  Although the
      appellant asserts that a July 31, 2013 email L.V.A. sent him demonstrates that she
      knew of his disclosures by its reference to “the OIG auditors,” IAF, Tab 9 at 17,
      that reference is insufficient to establish her knowledge of the appellant’s
      disclosures. In further support of his knowledge claim, the appellant refers to an
      affidavit L.V.A. provided on October 25, 2013, in connection with an equal
      employment opportunity (EEO) complaint the appellant filed alleging race
      discrimination and retaliation.     He asserts that L.V.A. stated that, on May 7,
      2013, his first-line supervisor prevented him from providing information to the
      OIG auditors.     However, the language to which the appellant refers is an
      acknowledgment by L.V.A. only of his claims of discrimination and retaliation
      for prior EEO activity that were accepted for investigation. IAF, Tab 21 at 17.
      Moreover, he has submitted only three pages of L.V.A.’s 12-page affidavit, and
      nothing in the portion he has submitted demonstrates knowledge on her part of his
      protected disclosures. Id. at 18-19. Notably, in L.V.A.’s declaration submitted
      under penalty of perjury, she stated that, in February 2014, she was not aware that
      the appellant had disclosed anything to the OIG related to any “illegal grant
      awards.” IAF, Tab 8 at 8. We find, therefore, that, under the knowledge/timing
      test, the appellant has not established by preponderant evidence that his
      disclosures were a contributing factor in the agency’s failure to complete the
      CA-2. Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 14 (2012).
¶10         We recognize, however, that the knowledge/timing test is not the only way
      for an appellant to satisfy the contributing factor standard and that, if the Board

      identified significant irregularities in how certain officials spent Federal grant funds
      awarded under the Coastal Impact Assistance Program. PFR File, Tab 5 at 4.
                                                                                       6

      determines that an appellant has failed to meet the knowledge/timing test, it shall
      consider other evidence, such as evidence pertaining to the strength or weakness
      of the agency’s reasons for taking the personnel action, whether the
      whistleblowing was personally directed at the official who took the action, and
      whether that individual had a desire or motive to retaliate against the appellant.
      Id., ¶ 15. Here, although the appellant asserts that L.V.A. had no valid reason for
      refusing to complete her portion of the CA-2, she stated in her declaration that
      she sought guidance from Human Resources because she was not familiar with
      the form, that she advised the appellant of this, and that she was informed by
      Human Resources that he had to complete his portion of the form first, but that he
      never did.   IAF, Tab 8 at 8-9.     Additionally, the appellant’s November 2012
      whistleblowing disclosures were not directed at L.V.A., the individual who took
      the action at issue here, but rather at the Grants Program Chief. IAF, Tab 1
      at 28‑34. While the appellant may have shown that L.V.A. had a desire or motive
      to retaliate against him because he named her as the source of his claimed
      occupational disease; that is, the cause of his work-induced stress, we find, based
      upon a weighing of the appropriate factors, that he has not shown by preponderant
      evidence that his protected disclosures were a contributing factor in the agency’s
      failure to complete the CA-2 and that he has thereby not established a prima facie
      case of retaliation for whistleblowing. Accordingly, we find that his request for
      corrective action must be denied.
¶11        On review, the appellant challenges the administrative judge’s finding that
      the agency established by clear and convincing evidence that it would have taken
      the same personnel action, even absent the appellant’s protected disclosure. PFR
      File, Tab 1 at 14-20.   In Kahn v. Department of Justice, 618 F.3d 1306, 1316
      (Fed. Cir. 2010), the U.S. Court of Appeals for the Federal Circuit declined the
      appellant’s invitation to consider the agency’s affirmative defense because it
      agreed with the Board that the appellant failed to establish his prima facie case,
      although the court stated in dicta that, in an IRA appeal, even when the Board
                                                                                        7

      finds a contested merits issue dispositive, it should nevertheless resolve the
      remaining issues to expedite resolution of the case on appeal. After Kahn was
      decided, however, Congress amended 5 U.S.C. § 1221(e)(2) to provide that
      corrective action cannot be ordered if, “after a finding that a protected disclosure
      was a contributing factor,” the agency demonstrates by clear and convincing
      evidence that it would have taken the same personnel action in the absence of
      such disclosure.   Whistleblower Protection Enhancement Act of 2012, Pub. L.
      No. 112-199, § 114(b), 126 Stat. 1465, 1472 (emphasis added).           Under this
      amendment, the Board may not proceed to the clear and convincing evidence test
      unless it first has made a finding that the appellant established his prima facie
      case. See S. Rep. No. 112-743 at 24 (2012). Because we have found that the
      appellant failed to establish his prima facie case, the administrative judge’s
      findings on clear and convincing evidence were extraneous, and we need not
      address on review the appellant’s contentions regarding those findings. Clarke v.
      Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F.
      App’x 1016 (Fed. Cir. 2015).
¶12        This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit.
            The court must receive your request for review no later than 60 calendar
      days after the date of this order.    See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
      Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
      has held that normally it does not have the authority to waive this statutory
      deadline and that filings that do not comply with the deadline must be dismissed.
      See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
                                                                                  8

      If you want to request review of the Board’s decision concerning your
claims   of    prohibited   personnel   practices   under   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 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. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
      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
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
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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.
