UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROSS HENDERSON,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DC-0752-14-0797-I-1

DATE: September 15, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 RIGHTS4

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:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board