                           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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
