                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROSS HENDERSON,                                 DOCKET NUMBER
                  Appellant,                         DC-0752-14-0797-I-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: September 15, 2016
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Kristin D. Alden, Esquire, Washington, D.C., for the appellant.

           Christopher Tully, Esquire, Washington, D.C., for the agency.

           Roman Lesiw, Esquire, Bethesda, Maryland, 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
     sustained his removal. Generally, we grant petitions such as this one only when:
     the initial decision contains erroneous findings of material fact; the initial

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. 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. Except as expressly MODIFIED by this Final Order to: (1) find that
     the agency established a nexus between the charges and the efficiency of the
     service; (2) incorporate the standards set out in the Board’s decision in Savage v.
     Department of the Army, 122 M.S.P.R. 612 (2015), for the appellant’s affirmative
     defenses of discrimination based on sex and retaliation for protected equal
     employment opportunity (EEO) activity; and (3) address the appellant’s argument
     raised in his post-hearing brief below that the agency violated his due process
     rights, we AFFIRM the initial decision.

                                      BACKGROUND
¶2         Effective May 16, 2014, the agency removed the appellant from his position
     as a Computer Scientist with the agency’s National Institutes of Health (NIH)
     based on four charges: (1) inappropriate behavior towards his supervisor (two
     specifications); (2) failure to follow supervisory instructions (two specifications);
     (3) inappropriate behavior in the workplace (one specification); and (4) making
     false allegations (six specifications). Initial Appeal File (IAF), Tab 5 at 21-26,
     77-80.
¶3         Charge one (inappropriate behavior towards the appellant’s supervisor) and
     charge two (failure to follow instructions) involved the appellant’s inappropriate
                                                                                        3

     interactions during a meeting with his supervisor, Dr. Y.H., on December 17,
     2013. Id. at 77-78. The agency alleged that the appellant raised his voice, spoke
     aggressively to Dr. Y.H., slid his chair towards her, leaned in to approximately a
     foot and a half from her face, and refused to comply with Dr. Y.H.’s instructions
     to “get out of her face.”    Id.   In charge three (inappropriate behavior in the
     workplace), the agency alleged that on the same day as the interactions with
     Dr. Y.H. at issue in charges one and two, the appellant became involved in a
     physical altercation with a coworker in his office, followed the coworker into the
     hallway, yelled inappropriate and vulgar comments and made obscene gestures.
     Id. at 78. In charge four (making false allegations), the agency alleged that the
     appellant made false allegations to his second-level supervisor and the agency’s
     Employee Relations Branch that Dr. Y.H. had: (1) threatened to kill him; and (2)
     sexually harassed him on various occasions, including at the December 17, 2013
     meeting at issue in charges one and two. Id. at 78‑79.
¶4        The appellant filed a Board appeal contesting his removal and raised
     affirmative defenses of discrimination based on sex (male), retaliation for
     protected EEO activity, whistleblower reprisal, and harmful procedural error.
     IAF, Tab 1 at 6-7, Tab 15 at 5, 20-31. After holding the requested hearing, the
     administrative judge found that the agency proved all of the charges and
     specifications. IAF, Tab 38, Initial Decision (ID) at 3-34; IAF, Tab 1 at 2. She
     found that the appellant failed to prove any of his affirmative defenses and that
     the penalty of removal was reasonable. 2 ID at 34-48.


     2
       The administrative judge did not make any finding regarding whether the agency
     established a nexus between the charges and the efficiency of the service. See ID.
     However, the appellant’s misconduct occurred at work, and it is well established that
     there is sufficient nexus between an employee’s conduct and the efficiency of the
     service where the conduct occurred at work. See Parker v. U.S. Postal Service,
     819 F.2d 1113, 1116 (Fed. Cir. 1987). Accordingly, we modify the initial decision to
     find that the agency proved a nexus between the charges and the efficiency of the
     service.
                                                                                             4

¶5         The appellant has filed a petition for review of the initial decision. Petition
     for Review (PFR) File, Tab 4. 3 The agency has responded in opposition to the
     petition for review, and the appellant has replied. PFR File, Tabs 7-10.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The agency proved the charges.
¶6         On review, the appellant contests the administrative judge’s finding that the
     agency proved charges one and two, arguing that the administrative judge erred in
     finding Dr. Y.H.’s hearing testimony to be more credible than his testimony. PFR
     File, Tab 4 at 30-33; ID at 7-21, 23. When an administrative judge’s credibility
     determination is based explicitly or implicitly on the observation of the demeanor
     of witnesses testifying at a hearing, the Board cannot set the determination aside
     absent “sufficiently sound” reasons for doing so.            Haebe v. Department of
     Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the appellant’s arguments
     on review do not provide a sufficiently sound reason to disturb the administrative
     judge’s finding that Dr. Y.H. was more credible than the appellant. ID at 7-21,
     23; see Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 4 (2009)
     (finding that when an administrative judge has heard live testimony, her
     credibility determinations must be deemed to be at least implicitly based upon the
     demeanor of the witnesses).
¶7         On review, the appellant also challenges the administrative judge’s findings
     regarding the third and fourth charges.        PFR File, Tab 4 at 24-30.        We have




     3
       On review, the appellant does not challenge the administrative judge’s findings that he
     failed to prove his affirmative defenses of discrimination based on sex, whistleblower
     reprisal, or harmful procedural error, and we discern no reason to disturb these findings.
     PFR File, Tabs 4, 10; ID at 34-35, 38-43. In analyzing the appellant’s affirmative
     defense of discrimination based on sex, the administrative judge did not apply the
     analytical framework in Savage, 122 M.S.P.R. 612, ¶¶ 42–43, 51.              ID at 34-35.
     However, we find that applying the analytical framework in Savage would not change
     the result in this case.
                                                                                       5

     carefully considered the record evidence and the appellant’s arguments, and we
     find that the agency proved charges three and four.

     The appellant failed to prove his affirmative defense of retaliation for protected
     EEO activity.
¶8        On review, the appellant argues that the administrative judge erred in
     finding that he failed to prove his affirmative defense of retaliation for protected
     EEO activity. PFR File, Tab 4 at 24-30, Tab 10 at 7-16. Shortly before the initial
     decision in the instant appeal was issued, the Board issued a decision that
     clarified the evidentiary standards and burdens of proof under which the Board
     analyzes such claims.    Savage, 122 M.S.P.R. 612, ¶¶ 42-43, 51.       However, in
     analyzing the appellant’s affirmative defense of retaliation for protected EEO
     activity, the administrative judge did not apply the analytical framework in
     Savage. ID at 35-38. We find that applying the analytical framework in Savage
     would not change the result in this case. Therefore, we affirm the administrative
     judge’s finding that the appellant did not meet his burden of proving his
     affirmative defense of retaliation for protected EEO activity.

     The appellant’s due process claims do not provide a basis to disturb the initial
     decision.
¶9        On review, the appellant argues that deciding official improperly considered
     ex parte information in violation of his due process rights.      PFR File, Tab 4
     at 14-24, Tab 10 at 4-7. First, the appellant contends that, in making the decision
     to remove him, the deciding official improperly considered concerns that the
     appellant posed a threat and would become increasingly violent and a
     recommendation by the agency’s workplace violence prevention program that he
     should not return to work. According to the appellant, he was not informed of
     this information in the proposal notice. PFR File, Tab 4 at 14-21, Tab 10 at 4-7.
     The appellant raised this argument for the first time below in a footnote in his
     post-hearing brief, and the administrative judge did not address it in the initial
     decision. IAF, Tab 37 at 17 & n.21; ID.
                                                                                          6

¶10         Although the appellant has not attempted to show good cause for raising
      this argument belatedly below, giving him the benefit of the doubt and assuming
      that it was based in part on the deciding official’s hearing testimony, we will
      address it here. See 5 C.F.R. § 1201.24(b) (requiring an appellant to show good
      cause for raising claims or defenses for the first time after the conference
      defining the issues in the case). The majority of the information discussed by the
      appellant is referenced in the proposal notice, and therefore, the deciding official
      did not rely on new and material ex parte information when he considered it. See
      IAF, Tab 5 at 80; Ward v. U.S. Postal Service, 634 F.3d 1274, 1279–80 (Fed.
      Cir. 2011) (explaining that a deciding official violates an employee’s right to due
      process when he relies upon new and material ex parte information as a basis for
      his decision on the merits of a proposed charge or the penalty to be imposed). To
      the extent that the appellant argues that concerns that he would become
      “increasingly violent” differ from the “safety concerns” referenced in the
      proposal notice, the deciding official testified that his consideration of this
      information was limited to his decision regarding the appellant’s administrative
      ban from the NIH campus, which he compartmentalized from his decision
      regarding the appellant’s removal. Hearing Transcript Volume 2 at 171-76. For
      these reasons, we find that the appellant has not established that the agency
      violated his due process rights.         See Norris v. Securities & Exchange
      Commission, 675 F.3d 1349, 1353–54 (Fed. Cir. 2012) (finding that an appellant
      did not establish that an agency violated his due process rights when the deciding
      official testified that, although she was aware of certain information, she did not
      consider it in making her decision to remove him). Accordingly, we modify the
      initial decision to find that the appellant did not establish that the agency violated
      his due process rights.
¶11         For the first time on review, the appellant also argues that the agency
      violated his due process rights when the deciding official purportedly considered
      a recommendation in the table of penalties for an offense with which he was not
                                                                                              7

      charged. PFR File, Tab 4 at 22-24. We will not consider this argument because
      the appellant has failed to demonstrate that it is based on new and material
      evidence that previously was unavailable to him despite due diligence.                See
      Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that
      the Board generally will not consider an argument raised for the first time on
      review absent a showing that it is based on new and material evidence not
      previously available despite the party’s due diligence).

      The penalty of removal is reasonable.
¶12         On review, the appellant does not challenge the administrative judge’s
      finding that the penalty of removal would be reasonable if all of the charges were
      sustained, and we discern no basis to disturb that finding on review. For this
      reason, and the reasons discussed above, we affirm the initial decision sustaining
      the appellant’s removal.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS 4
            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 of the U.S.


      4
        The administrative judge did not afford the appellant notice of appeals rights under the
      Whistleblower Protection Enhancement Act of 2012 or notice of his mixed-case right to
      appeal his discrimination claims to the Equal Employment Opportunity Commission
      and/or the United States District Court. We notify the appellant of his proper appeal
      rights in this Final Order. See Grimes v. U.S. Postal Service, 39 M.S.P.R. 183, 186-87
      (1988).
                                                                                 8

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
                                                                                       9

prepayment     of   fees,   costs,   or   other   security.     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 the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction to review this final decision.            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 your 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
            10

Circuit.   The
                                                                                 11

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.
