Gary L. Jenkins v. Department of Health and Human Services

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GARY L. JENKINS, DOCKET NUMBER

Appellant, DC-0752-12-0586-B-2

v.

DEPARTMENT OF HEALTH AND DATE: February 2, 2016

HUMAN SERVICES,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

James L. Fuchs, Esquire, Pikesville, Maryland, for the appellant.

Sara M. Klayton, 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 affirmed the agency’s removal action. 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. See 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. We MODIFY the initial decision to

address the agency’s compliance with the requirements of minimum due process

in effecting the removal action and we VACATE the administrative judge’s

alternative findings concerning the appellant’s whistleblowing claim. Except as

expressly MODIFIED by this final order, we AFFIRM the initial decision.

¶2 Effective November 24, 2008, the agency removed the appellant from his

position as GS-12 Biologist at the National Institutes of Health (NIH). Jenkins v.

Department of Health & Human Services, MSPB Docket No. DC-0752-12-0586-

B-2, Remand File (RF), Tab 8 at 4. The agency determined that he: (1) removed

Government property without authorization; (2) provided false information to a

supervisor; (3) responded to a supervisor in a disrespectful manner;

(4) inappropriately sent emails which contained NIH scientific information and

management decisions to non-NIH email addresses; and (5) misused a

Government computer. Id. at 5-8, 19-34.

¶3 The appellant filed an appeal with the Board regarding his removal. Jenkins

v. Department of Health & Human Services, MSPB Docket No. DC-0752-12-

0586-I-1, Initial Appeal File (IAF), Tab 1. He raised affirmative defenses of:

(1) discrimination based on sex, sexual orientation, and religion; (2) reprisal for

equal employment opportunity (EEO) activity; and (3) whistleblower reprisal. Id.

at 5, 7; IAF, Tab 4; RF, Tab 22. He requested a hearing. IAF, Tab 1 at 3.

3

¶4 After holding the requested hearing, the administrative judge issued a

remand initial decision affirming the removal action. RF, Tab 41, Remand Initial

Decision (RID). She found that: (1) the agency proved all of its charges and

specifications by preponderant evidence; (2) there was a clear nexus between the

sustained charges and the efficiency of the service; and (3) the penalty of removal

was reasonable. 2 RID at 8-30, 47-48. She also found that the appellant failed to

prove his affirmative defenses by preponderant evidence. RID at 31-47.

¶5 The appellant has filed a petition for review. Jenkins v. Department of

Health & Human Services, MSPB Docket No. DC-0752-12-0586-B-2, Remand

Petition for Review (RPFR) File, Tab 1. He disputes the seriousness of the

charges, the reasonableness of the penalty, and the administrative judge’s

findings concerning his affirmative defenses. Id. He raises various arguments

regarding the administrative judge’s credibility findings, her conduct at the

hearing, and her weighing of the evidence. Id. He also appears to allege that the

agency violated his due process rights by denying him a meaningful opportunity

to respond to its proposal notice. Id. The agency filed a response in opposition

to the petition for review, to which the appellant replied. RPFR File, Tabs 3-4.

The agency proved all 5 of its charges by preponderant evidence.

Charges 1 through 3

¶6 The agency charged the appellant with removing Government property

without authorization (Charge 1) because he: (1) took 18 lab notebooks from the

locked filing cabinet where they were usually stored and removed them from the

building; (2) emailed an electronic copy of genotyping data found in one of the

2

This appeal was previously before a different administrative judge, who dismissed it

as untimely filed. IAF, Tab 19. The Board granted the appellant’s petition for review

of that decision and remanded the appeal for a timeliness hearing. Jenkins v.

Department of Health & Human Services, MSPB Docket No. DC-0752-12-0586-I-1,

Remand Order (June 18, 2013). On remand, the current administrative judge held a

timeliness hearing and found that the appellant established by preponderant evidence

that his appeal was timely filed. RID at 2-7. The agency does not challenge this

finding and we discern no basis to disturb it.

4

aforementioned lab notebooks from his Government email address to his personal

email address; and (3) attempted to email the entire Clinical Laboratory

Improvement Amendments (CLIA) master database from his Government email

address to his personal email address, all without authorization. RF, Tab 8

at 19-22.

¶7 The agency charged the appellant with providing false information to a

supervisor (Charge 2) because when the proposing official called him regarding

the notebooks: (1) the appellant stated that an individual he identified as a

“judge” had advised him to take them as evidence for his EEO complaint, but that

individual was actually an EEO investigator and denied providing that advice;

and (2) the appellant denied making any copies of the data from the lab notebooks

although, as discussed above, it was later discovered that he had transmitted

genotyping data to his personal email address and also attempted to transmit the

CLIA master database to his personal email address. 3 Id. at 22-23.

¶8 The agency also charged the appellant with responding to a supervisor in a

disrespectful manner (Charge 3) because when the proposing official directed him

to return the notebooks during the aforementioned telephone conversation, the

appellant responded in a disrespectful tone that he would think about it and

refused to disclose the location of the notebooks. Id. at 23.

¶9 The appellant admitted that: (1) he took the notebooks from the lab; (2) he

“obviously knew it was government property”; and (3) when the proposing

official directed him to return the notebooks, he responded that he would “think

about it.” Jenkins v. Department of Health & Human Services, MSPB Docket No.

DC-0752-12-0586-B-2, September 23, 2014 Hearing Transcript (HT) at 257:7-9,

3

The agency conceded that the appellant did not succeed in transmitting the CLIA

database to his personal email address because NIH’s computer system blocked it. RF,

Tab 8 at 22. Thus, it could be argued that the agency did not prove this specification of

Charges 1 and 2. Notwithstanding, the charges still could be sustained based upon the

other specifications. See Burroughs v. Department of the Army, 918 F.2d 170, 172

(Fed. Cir. 1990).

5

258:6-18, 261:13-18 (testimony of the appellant); see Cole v. Department of the

Air Force, 120 M.S.P.R. 640, ¶ 9 (2014) (stating that an appellant’s admission to

a charge can suffice as proof without additional proof from the agency). Further,

the record contains contemporaneous evidence indicating that the appellant

claimed that a “judge” had advised him to take the notebooks; however, the

agency inquired of this individual, who denied the claim. RF, Tab 9 at 29, Tab 18

at 66, 68. There is also evidence that the appellant sent genotyping data, and

attempted to send a copy of the CLIA database, to his personal email address.

RF, Tab 11 at 62-75, Tab 12 at 18-19. The proposing official testified that the

appellant was not authorized to remove any of these materials from the lab.

Jenkins v. Department of Health & Human Services, MSPB Docket No. DC-0752-

12-0586-B-2, October 21, 2014 Hearing Compact Disc (HCD) (testimony of the

proposing official). On review, the appellant does not dispute any of the

aforementioned evidence. Accordingly, we agree with the administrative judge

that the agency proved Charges 1 through 3 by preponderant evidence.

Charge 4

¶10 The agency charged that the appellant inappropriately sent emails to

non-NIH email addresses containing information regarding NIH official business

because he forwarded numerous emails containing scientific material and

management-related decisions to outside parties who had no business reason to

receive the information. RF, Tab 8 at 23-26.

¶11 The record contains copies of all the emails the appellant forwarded, as

described in the agency’s proposal notice. RF, Tab 9 at 42-44, 45-49, 50-51,

Tab 10 at 4-6, 69-74, Tab 11 at 11-16, 19-22, Tab 12 at 4-5, 8-10, 21-26. The

appellant does not dispute this evidence on review, but rather, argues that it is

“not uncommon” for employees to engage in such conduct and “[w]hether

appropriate or not, this . . . does not generally rise to the level of the type of

conduct upon which a proposed removal would be based.” RPFR File, Tab 1

at 22. Given that the appellant concedes that he engaged in the misconduct, we

6

discern no basis to disturb the administrative judge’s finding that the agency

proved this charge by preponderant evidence. 4

Charge 5

¶12 The agency charged the appellant with misusing a Government computer

because he stored “racial and sexually explicit material” on his Government

computer, failed to delete racial and sexually explicit emails he received at his

Government email address, and forwarded several of those emails to outside

email addresses. RF, Tab 8 at 26-30.

¶13 The administrative judge found that the agency proved this charge,

including all 18 specifications, by preponderant evidence. RID at 24-30. On

review, the appellant appears to challenge this finding. He states that the

deciding official—when asked at the hearing to identify the racist material the

appellant allegedly stored and disseminated—cited only to the photo described in

specification 1—a photo depicting President Obama standing in a uniform in front

of a southern-style mansion, with President Clinton and his wife standing on the

porch, RF, Tab 8 at 55. RPFR File, Tab 1 at 22. He disputes that the photo is

racist and states that it could equally be viewed as “political or satiric.” 5 Id. He

further claims that he did not create or disseminate the pornographic material at

issue. Id. at 23. He also contends that the agency’s witnesses had no firsthand

knowledge of the contents of his computer and finds it suspicious that the agency

failed to introduce testimony from an agency information technology specialist

who did have such knowledge. Id. at 23-24.

4

We will consider the appellant’s argument, that other employees engaged in similar

misconduct but were not disciplined, in our analysis of his discrimination claims,

infra ¶¶ 22-24, and the imposition of the penalty, infra ¶¶ 25, 28.

5

We do not agree with the appellant’s assessment of the photo cited in specification 1.

However, even if we were to find that specification 1 does not support the charge, the

charge still would be sustained based on the remaining 17 specifications. See

Burroughs, 918 F.2d at 172.

7

¶14 The appellant’s arguments are wholly without merit. The record contains

copies of all the materials specified in Charge 5 and their contents are as

described in the proposal notice. 6 RF, Tab 8 at 46-52, 55-56, Tab 10 at 16-26,

29-62, 66-68, Tab 11 at 4-10, 17-18, 42-61, Tab 12 at 6-7, 29-56, Tab 13

at 31-33, Tab 15 at 13-19. The record reflects that the appellant forwarded some

of these emails to outside email addresses, which do not appear to be his own.

RF, Tab 10 at 16, 66, Tab 11 at 61. Further, the appellant testified that he

forwarded some of the sexually explicit emails to his personal email account. HT

at 264:7-9 (testimony of the appellant); see RF, Tab 10 at 31, Tab 11 at 6, 42,

Tab 12 at 29. Thus, we agree with the administrative judge that preponderant

evidence supports this charge. Accordingly, we conclude that the administrative

judge correctly determined that the agency proved all five charges.

The appellant failed to prove his affirmative defenses.

Whistleblower Reprisal

¶15 In a removal appeal, an appellant’s claim of whistleblowing reprisal is

treated as an affirmative defense. Ayers v. Department of the Army, 123 M.S.P.R.

11, ¶ 12 (2015). In such an appeal, once the agency proves its initial case by a

preponderance of the evidence, the appellant must show by a preponderance of

the evidence, in pertinent part, that he made a protected disclosure under 5 U.S.C.

§ 2302(b)(8). Id. A protected disclosure is a disclosure of information that the

appellant reasonably believes evidences any violation of any law, rule, or

regulation, gross mismanagement, a gross waste of funds, an abuse of authority,

or a substantial and specific danger to public health or safety.

6

The appellant argues that this evidence was not properly authenticated and should be

“entirely discarded.” RPFR File, Tab 1 at 24. However, there is no evidence that

before or at the hearing he objected to the admission of these documents, which were

included in the agency file. RF, Tab 26 at 4-7. Thus, he is precluded from objecting to

this evidence on review. See Brown v. Department of the Navy, 57 M.S.P.R. 621,

624-25 (1993).

8

See 5 U.S.C. § 2302(b)(8); Webb v. Department of the Interior, 122 M.S.P.R. 248,

¶ 6 (2015).

¶16 The appellant alleged that the agency removed him in retaliation for a

July 2008 email in which he alleged that the agency acted unethically when it

failed to give him authorship credit for research he did, and instead falsely

credited an agency employee whose research was unreliable. RF, Tab 9 at 74-76,

Tab 22 at 10, Tab 26 at 5, Tab 35 at 6; HT at 268:4-14 (testimony of the

appellant). The administrative judge found that these allegations did not

constitute protected disclosures, noting that: (1) although she ordered the

appellant to identify whether his disclosures concerned a violation of law, rule or

regulation, gross mismanagement, a gross waste of funds, an abuse of authority,

or substantial and specific danger to public health or safety, RF, Tab 17 at 12-13,

Tab 22 at 10-13, he failed to do so; and (2) she nonetheless considered whether

the appellant’s disclosures constituted gross mismanagement or a substantial and

specific danger to public health or safety, and concluded that they did not. RID

at 31-33.

¶17 On review, the appellant again argues that he was removed in retaliation for

the aforementioned email. RPFR File, Tab 1 at 10-11. However, he does not

identify any error with the administrative judge’s finding that he failed to

establish that he made a protected disclosure. Accordingly, we will not disturb

the administrative judge’s well-reasoned findings concerning this affirmative

defense. 7 See 5 C.F.R. § 1201.115(b).

7

The administrative judge also found, in the alternative, that even if the appellant had

established that he made a protected disclosure, he would nonetheless be unable to

prevail on this defense because the agency proved by clear and convincing evidence

that it would have removed him, even absent such a disclosure. RID at 33-37.

However, Congress, in enacting the Whistleblower Protection Enhancement Act of

2012, determined that the Board may not proceed to the clear and convincing evidence

test unless it has first made a finding that the appellant established a prima facie case of

whistleblower reprisal. See Pub. L. No. 112-199, § 114(b), 126 Stat. 1465, 1472. We

thus vacate these alternative findings.

9

EEO Reprisal

¶18 An appellant asserting an affirmative defense of EEO reprisal bears the

burden of showing by preponderant evidence that his EEO activity was a

motivating factor in the contested personnel action. 8 Savage v. Department of the

Army, 122 M.S.P.R. 612, ¶ 51 (2015). 9

¶19 The appellant argues that the administrative judge failed to properly weigh

the evidence supporting his EEO retaliation claim, including that the proposing

official: (1) testified that he probably had threatened to go to the EEO

investigator’s supervisor “because the investigator had accepted [the appellant’s]

retaliation complaint” regarding a suspension which the proposing official had

proposed against the appellant; (2) became critical of the appellant’s performance

and time and attendance, and proposed his removal, only after he engaged in EEO

activity; (3) was motivated to retaliate against the appellant by his removal of the

lab notebooks to use as evidence in his EEO complaint; (4) “made gratuitous

remarks” about the appellant’s EEO complaints and his right to file them; and

(5) gave inconsistent testimony as to whether he had discussed the appellant’s

EEO complaint with the appellant’s day-to-day supervisor, C.H. RPFR File,

Tab 1 at 6-10, 15-16, 26. He also identified alleged comments and actions by

C.H. that evidenced retaliatory animus. Id.

8

There is no dispute that the appellant engaged in protected EEO activity, of which the

proposing and deciding officials were aware prior to his removal. RF, Tab 7 at 10,

15-16; HT at 201:5-13 (testimony of the deciding official); HCD (testimony of the

proposing official).

9

In Savage, which was issued after the initial decision in this appeal, the Board

clarified the evidentiary standards and burdens of proof under which the Board analyzes

claims of discrimination and reprisal under 42 U.S.C. § 2000e-16. Savage,

122 M.S.P.R. 612, ¶¶ 42-43, 51. We find that applying the analytical framework in

Savage would not change the result in this case as to the appellant’s affirmative

defenses of EEO reprisal and discrimination based on sex, sexual orientation and

religion.

10

¶20 The administrative judge explicitly mentioned almost all of the

aforementioned evidence. 10 RID at 38-43. She concluded that while the evidence

showed that the removal action could have been retaliation, there was ultimately

no genuine nexus between the alleged retaliation and the appellant’s removal. 11

RID at 42. In reaching this conclusion, she considered that: (1) the charges

against the appellant are very significant; (2) the deciding official testified

persuasively that his decision to remove the appellant was based only upon the

misconduct with which he was charged, and was not influenced by C.H. or the

proposing official; and (3) the deciding official had no significant motive to

retaliate against the appellant for his EEO activity. RID at 42-43. We discern no

basis to disturb this analysis. The appellant’s mere disagreement with the

administrative judge’s weighing of the evidence does not establish a basis for

review. See Broughton v. Department of Health & Human

Services, 33 M.S.P.R. 357, 359 (1987) (mere reargument of issues already raised

and properly resolved by the administrative judge below do not establish a basis

for review).

10

She did not mention in her analysis of the appellant’s EEO reprisal claim the

allegedly inconsistent testimony, a statement by C.H. that he checked his car for

explosives he feared might be planted by the appellant, or the appellant’s asserted

reason for removing the lab notebooks. However, this does not mean that she did not

consider these matters. See Marques v. Department of Health & Human Services,

22 M.S.P.R. 129, 132 (1984) (finding that an administrative judge’s failure to mention

all of the evidence of record does not mean that she did not consider it in reaching her

decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Further, because the

administrative judge found that the deciding official was not improperly influenced by

C.H., his statements about, and conduct toward, the appellant are irrelevant. RID

at 41-43; cf. Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 23

(2014) (holding that an appellant can demonstrate prohibited animus in a whistleblower

reprisal claim by showing that an individual with knowledge of the appellant’s

protected disclosure influenced the deciding official accused of taking the personnel

action).

11

We interpret the administrative judge’s finding that there was no “genuine nexus” as

the same as a finding that the appellant failed to meet his burden to prove that his

protected activity was a “motivating factor” in his removal. See Savage, 122 M.S.P.R.

612, ¶ 41.

11

Sex, Sexual Orientation, and Religious Discrimination

¶21 An appellant asserting an affirmative defense of prohibited discrimination

under 42 U.S.C. § 2000e-16 bears the burden of showing by preponderant

evidence that his protected status was a motivating factor in the contested

personnel action. Savage, 122 M.S.P.R. 612, ¶ 51.

¶22 The appellant contends that he was discriminated against based on his sex,

sexual orientation and religion. As evidence, he states that: (1) another agency

employee did not comply with required security procedures in maintaining her lab

notebooks, but was not disciplined; (2) agency management singled him out for

time and attendance related issues, although other employees were not disciplined

for being frequently absent from the lab; (3) agency management denied him

authorship credit for his work; and (4) some of the inappropriate emails he

received were sent by agency employees, whom the agency did not investigate.

RPFR File, Tab 1 at 21, 25-26, 29. He further claims that C.H. called him a

“pathetic little man”; made a disparaging comment about his visits to a gym,

which he perceived as a “code comment upon” his sexual orientation; and stated

that he routinely checked to ensure that the appellant had not planted any

explosives under his car. Id. at 5.

¶23 As to the employees whom the appellant alleged received more favorable

treatment than he did, the administrative judge found that: (1) the appellant

failed to prove that the one employee he identified with specificity was charged

with, or committed, similar misconduct; and (2) the appellant’s generalized

assertions that other employees received more favorable treatment, unsupported

by specific evidence, were not sufficient to support a disparate treatment claim.

RID at 45-46. Again, we discern no basis to disturb this analysis, and the

appellant’s mere disagreement with the administrative judge’s findings does not

establish a basis for review. See Broughton, 33 M.S.P.R. at 359; see also

Savage, 122 M.S.P.R. 612, ¶¶ 42, 51 (discussing the types of evidence on which

an appellant may rely in proving an affirmative defense of discrimination or

12

retaliation in violation of title VII, including direct evidence, a convincing mosaic

of evidence from which discrimination can be inferred, comparator evidence, and

evidence that the agency’s stated reason for its action is pretextual); Brown v.

Department of the Interior, 121 M.S.P.R. 205, ¶ 27 (2014) (observing that

employees are similarly situated for purposes of a disparate treatment

discrimination claim if all relevant aspects of their employment are nearly

identical).

¶24 To the extent that C.H. harbored discriminatory animus against the

appellant based upon his sex, sexual orientation or religion, it is irrelevant

because the appellant did not show that C.H. exerted any influence over the

deciding official’s decision. The deciding official denied that C.H. made any

attempt to influence him. HT at 207:16-208:1 (testimony of the deciding

official). The deciding official also testified that he was unaware of the

appellant’s sexual orientation and religion when he reached his decision. HT

at 206:14-207:12 (testimony of the deciding official). Consequently, we agree

with the administrative judge’s determination that the appellant failed to prove

any of his affirmative defenses.

The penalty of removal was reasonable and promoted the efficiency of the

service.

¶25 The appellant argues that the penalty of removal was unreasonable. He

disputes the seriousness of the misconduct alleged in Charge 1, arguing that:

(1) his actions did not compromise confidentiality because the information

contained in the notebooks would not have been identifiable if viewed by outside

persons; (2) the agency failed to prove that it suffered any negative consequences

because he removed the notebooks; and (3) he returned the notebooks within

2 hours of being directed to do so. RPFR File, Tab 1 at 17-18, 20. He contends

that the administrative judge should have weighed the seriousness of the offense

against the reason he removed the notebooks from the lab; namely, that he needed

to preserve evidence for his EEO complaint, which he apparently believed the

13

agency would have otherwise destroyed. Id. at 18-19, 29. As to Charge 4, he

states that it is not uncommon for employees to send emails to their private email

accounts and that such conduct does not warrant removal. Id. at 22. As to

Charge 5, he claims that “it would have taken considerable effort on his part to

remove” pornographic material from his computer. 12 Id. at 23. He also believes

that the administrative judge and the agency failed to give sufficient weight to his

history of good performance and conduct in assessing the appropriate penalty. Id.

at 25.

¶26 Where, as here, all of the agency’s charges have been sustained, the Board

will review an agency-imposed penalty only to determine if the agency

considered all of the relevant factors and exercised management discretion within

tolerable limits of reasonableness. Archerda v. Department of

Defense, 121 M.S.P.R. 314, ¶ 25 (2014). In determining whether the selected

penalty is reasonable, the Board gives due deference to the agency’s discretion in

exercising its managerial function of maintaining employee discipline and

efficiency. Id. The Board recognizes that its function is not to displace

management’s responsibility or to decide what penalty it would impose, but to

assure that management judgment has been properly exercised and that the

penalty selected by the agency does not exceed the maximum limits of

reasonableness. Id. Thus, the Board will modify a penalty only when it finds that

the agency failed to weigh the relevant factors or that the penalty the agency

imposed clearly exceeded the bounds of reasonableness. Id.

¶27 In evaluating whether a penalty is reasonable, the Board will consider, first

and foremost, the nature and seriousness of the misconduct. Von Muller v.

Department of Energy, 101 M.S.P.R. 91, ¶ 23, aff’d, 204 F. App’x 17

(Fed. Cir. 2006), modified on other grounds by Lewis v. Department of Veterans

Affairs, 113 M.S.P.R. 657, ¶¶ 12-15 (2010). We agree with the administrative

12

At the hearing, the appellant denied storing such materials on his computer. HT

at 264:20-22 (testimony of the appellant).

14

judge’s and the agency’s conclusion that the proven misconduct in this matter is

serious enough to warrant removal. Indeed, the Board has affirmed the penalty of

removal in circumstances similar to those presented here. See

Von Muller, 101 M.S.P.R. 91, ¶¶ 2, 23 (affirming the removal of a nonsupervisory

employee, with over 21 years of Federal service and no prior discipline, for

sending sexually explicit and other inappropriate, nonwork related emails from

his agency email address and failing to follow supervisory instructions); Redfearn

v. Department of Labor, 58 M.S.P.R. 307, 309-10, 316-17 (1993) (affirming the

removal of an employee based on charges of insubordination and insolent

behavior); Clark v. Equal Employment Opportunity

Commission, 42 M.S.P.R. 467, 469-70, 478 (1989) (affirming the removal of an

employee who without authorization removed official Government records,

misused them as evidence in a lawsuit he had filed against the agency, and failed

to follow instructions to return them).

¶28 The appellant’s arguments to the contrary are without merit. As to

Charge 1, the administrative judge considered the appellant’s purported reason

for removing the notebooks and found that, even if he did remove them to

preserve evidence for his EEO complaint, this would not negate the facts that the

notebooks were Government property and he removed them without

authorization. RID at 14. The appellant’s mere disagreement with this analysis

provides no basis for review. See Broughton, 33 M.S.P.R. at 359. Moreover, the

record evidence belies the appellant’s assertion that the agency did not suffer any

adverse consequences as a result of the misconduct underlying Charge 1.

Because the appellant breached confidentiality procedures by removing the

notebooks, the proposing official had to contact outside affiliates to inform them

of the breach, which could have jeopardized the agency’s reputation. RF, Tab 8

at 16, 35-45. As to Charge 4, the appellant’s conclusory statement that it is not

uncommon for employees to send emails to their private email accounts provides

no basis to disturb the agency’s penalty, particularly considering the seriousness

15

of the other charges. As to Charge 5, the appellant’s claim that it would have

taken considerable effort on his part to remove the inappropriate materials from

his computer is wholly unpersuasive and does not constitute a mitigating factor.

¶29 We recognize, as did the deciding official and the administrative judge, RID

at 47; RF, Tab 8 at 6, the extensive length of the appellant’s Federal service 13 and

that he was rated fully successful on his most recent performance appraisal. We

do not agree with the appellant, however, that these mitigating factors outweigh

the aggravating factors in this case. See Von Muller, 101 M.S.P.R. 91, ¶ 23. In

addition to the seriousness of the misconduct here, the agency considered that the

appellant was previously suspended for 3 calendar days in September 2008, for

failing to follow instructions, sending an unprofessional email, and engaging in

disrespectful and disruptive conduct. RF, Tab 8 at 6, Tab 9 at 56-63; see Bolling

v. Department of the Air Force, 9 M.S.P.R. 335, 339-40 (1981) (discussing the

generally limited scope of Board review of prior disciplinary actions). Further,

the agency considered the appellant’s unlikely potential for rehabilitation. RF,

Tab 8 at 6. Accordingly, we discern no basis to disturb the administrative judge’s

determination to sustain the agency’s chosen penalty of removal.

The appellant’s claims concerning alleged adjudicatory errors do not establish a

basis for review.

¶30 The appellant alleges that the administrative judge erred in limiting the

proposing official’s testimony regarding how he was appointed to his position.

RPFR File, Tab 1 at 16 n.5, 28-29. He asserts that the proposing official’s

hearing testimony on this issue contradicted his deposition testimony and, as

13

In his written reply, the appellant stated that he had been working at NIH for

16 years. RF, Tab 8 at 11. The deciding official testified that the agency’s records

indicated that the appellant had worked there for 13 years. HT at 175:15-22 (testimony

of the deciding official). In the agency’s decision notice, the deciding official stated

that he considered that the appellant had 15 years of Federal service. RF, Tab 8 at 6.

These apparent discrepancies are not sufficiently significant to change our analysis.

16

such, bears upon his credibility. 14 Id. At the hearing, the administrative judge

overruled the appellant’s objection on this point, stating that any inconsistent

testimony as to the circumstances under which the proposing official was

appointed to his position in the lab would not affect her assessment of his

credibility. HCD (discussion during testimony of the proposing official). We

discern no basis to disturb that ruling. It is well settled that even if a witness is

not credible on one point, it does not necessarily mean that the remainder of his

testimony lacks credibility. Craft v. Department of Veterans

Affairs, 78 M.S.P.R. 374, 380 (1998); Boscoe v. Department of

Agriculture, 54 M.S.P.R. 315, 323 (1992). This is particularly true where, as

here, the allegedly inconsistent testimony has no direct relation to the facts

surrounding the charged misconduct. See Boscoe, 54 M.S.P.R. at 323.

¶31 The appellant also contends that the administrative judge improperly

coached a Human Resources (HR) Specialist’s testimony regarding whether the

proposing official wanted the appellant to be removed from the outset of the

agency’s investigation into the appellant’s misconduct. RPFR File, Tab 1 at 14,

28; see HT at 108:5-117:2 (testimony of the HR Specialist). At the hearing, the

appellant, who was represented by an attorney, did not object to the

administrative judge’s conduct in addressing the witness. HT at 108:5-117:2

(testimony of the HR Specialist). As such, he is precluded from raising this

argument now. See Brown, 57 M.S.P.R. at 625.

¶32 In any event, assuming arguendo that this was error, it did not prejudice the

appellant’s substantive rights and, therefore, does not warrant reversal of the

initial decision. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282

14

The appellant further argues that the administrative judge failed to consider that the

proposing official appeared “unduly agitated and nervous at the hearing.” RPFR File,

Tab 1 at 16. The appellant’s subjective perception of this witness’ demeanor does not

provide a sufficiently sound basis for us to overturn the administrative judge’s

credibility determinations. See Haebe v. Department of Justice, 288 F.3d 1288, 1301

(Fed. Cir. 2002).

17

(1984) (holding that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision). As an

initial matter, this information is not in dispute. The proposing official conceded

that before the agency conducted its investigation into the contents of the

appellant’s computer, he was already of the opinion that the appellant’s

unauthorized removal of the notebooks alone might be serious enough to warrant

removal. HCD (testimony of the proposing official). Moreover, the proposing

official’s purported desire to remove the appellant is irrelevant because he was

not the ultimate decision-maker in this matter and, as explained above, the

appellant has not shown that the proposing official influenced the deciding

official’s decision.

The agency afforded the appellant minimum due process.

¶33 Before taking an appealable action that deprives a tenured Federal employee

of his property right in his employment, an agency must provide the employee

with prior notice and a meaningful opportunity to respond, i.e., an opportunity to

present a response, either in person or in writing, why the proposed action should

not be taken. 5 U.S.C. § 7513(b); Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 543-46 (1985).

¶34 There can be no dispute that the agency afforded the appellant the

opportunity to submit an oral and written reply to the proposed action. RF, Tab 8

at 33. The appellant submitted only a written reply, after being granted an

extension for his attorney to review the materials and prepare a response. Id.

at 9-12; HT at 281:19-282:1 (testimony of the appellant). The deciding official

referenced the reply in his decision letter and testified in detail regarding how he

considered the appellant’s reply. RF, Tab 8 at 6; HT at 159:4-162:17 (testimony

of the deciding official).

¶35 The appellant appears to allege, however, that he did not receive a

meaningful opportunity to respond to the charges against him because the

removal decision was predetermined. See Loudermill, 470 U.S. at 542-43, 546

18

(discussing a tenured public employee’s right to invoke the discretion of the

deciding official prior to termination); RPFR File, Tab 1 at 11-13. Specifically,

he claims that the decision process was “tainted” because: (1) the deciding

official already had determined to remove him before being appointed as deciding

official and before the agency had completed its investigation into his

misconduct; (2) the proposing official inappropriately advised the deciding

official to limit himself to considering the information contained in the proposal

notice; and (3) the deciding official failed to thoroughly gather and evaluate all of

the evidence in reaching his decision. 15 RPFR File, Tab 1 at 11-13. He states

that the administrative judge improperly failed to consider this evidence and

argues that the removal action must be reversed. Id.

¶36 We find that the agency did not violate the appellant’s due process rights.

At the hearing, the proposing official denied discussing the proposal notice with

the deciding official, other than to notify him that it was forthcoming and that

they should not discuss it. HCD (testimony of the proposing official); see Stone

v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999)

(observing that not every ex parte communication is a procedural defect so

substantial and so likely to cause prejudice that it undermines the due process

guarantee and entitles the claimant to an entirely new administrative proceeding;

rather, only ex parte communications that introduce new and material information

to the deciding official will violate the due process guarantee of notice). The

deciding official similarly testified that he had no specific discussions with the

proposing official regarding the proposed removal, and that the proposing official

15

The administrative judge did not address this due process issue in the initial decision.

This did not constitute error because the appellant has not explicitly claimed that a due

process violation occurred. However, we find that these claims, which the appellant did

assert below, implicate due process. We therefore, under the circumstances of this case,

have decided to consider them on review.

19

made no attempt to discuss the matter with him. 16 HT at 201:14-202:11

(testimony of the deciding official). It appears that before the agency had

completed its review of the appellant’s email account and computer and charged

him with misconduct, the deciding official expressed to the proposing official his

opinion that the removal of the lab notebooks might be cause for removal. RF,

Tab 31 at 225:18-226:20 (deposition of the proposing official). The appellant

argues that this was improper and demonstrates that the deciding official

“prematurely committed himself to a possible removal.” RPFR File, Tab 1

at 11-12. We discern no basis to conclude, from the mere fact that the deciding

official commented that certain conduct might warrant removal, that the appellant

did not receive a meaningful opportunity to respond. As to the appellant’s

assertion that the deciding official should have more thoroughly investigated the

alleged misconduct and interviewed various witnesses “in an official, recorded

capacity,” id. at 12, we disagree. The deciding official testified that he assumed

there were no facts in dispute because the appellant did not substantively rebut

any of the charges against him in his brief written reply, which we do not find to

be improper. HT at 160:13-17 (testimony of the deciding official); cf. Adams v.

Department of Transportation, 15 M.S.P.R. 72, 83 (1983) (noting that while

silence, in and of itself, is insufficient to support disciplinary action, it is

permissible to draw an adverse inference from a party’s silence in the face of

evidence that incriminates him), aff’d, 735 F.2d 488 (Fed. Cir. 1984).

¶37 We also have considered whether the appellant’s allegations evidence

harmful error on the part of the agency in reaching its decision. See Ward v. U.S.

16

The appellant alleges that the administrative judge improperly refused to let his

counsel engage in questioning regarding the proposing official’s discussions with the

deciding official, which would have casted doubt upon the deciding official’s

objectivity in deciding to remove the appellant, and sua sponte suggested that there had

been no discussions. RPFR File, Tab 1 at 27. He provides no citation to the record for

when this questioning purportedly occurred. See 5 C.F.R. § 1201.114(b).

Notwithstanding, based upon our review of the record, we see no evidence that the

administrative judge acted improperly in this regard.

20

Postal Service, 634 F.3d 1274, 1282 (Fed. Cir. 2011) (holding that, after finding

an alleged error does not violate an employee’s right to constitutional due

process, the Board is required to determine if the agency committed harmful

error). To show harmful error, an appellant must prove that the agency

committed a procedural error that likely caused it to reach a conclusion different

from the one it would have reached in the absence or cure of the error. Tom v.

Department of the Interior, 97 M.S.P.R. 395, ¶ 43 (2004); 5 C.F.R. § 1201.4(r).

Here, we believe that the appellant’s allegations do not evidence any procedural

error. Assuming arguendo that an error occurred, we cannot find that it caused

the agency to reach a conclusion it would not have otherwise reached, given the

seriousness of the misconduct at issue in this appeal.

¶38 Based on the foregoing, we find that the agency’s charges were properly

sustained, that the penalty of removal was within the bounds of reasonableness,

and that the removal cannot be overturned based on the appellant’s affirmative

defenses or a due process violation. We therefore deny the appellant’s petition

for review and affirm the initial decision, as modified herein.

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

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). See title 5

21

of the U.S. 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

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

22

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 U.S. 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 U.S. 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

23

Circuit. The

24

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: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.