UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BARRY JAMES NICHOLSON,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DC-0752-15-1019-I-1

DATE: December 21, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Barry James Nicholson, Hampton, Virginia, pro se.

Timothy M. O’Boyle, Esquire, Hampton, Virginia, 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 

affirmed the agency’s demotion 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 regulation 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. 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 and AFFIRM the initial decision. Because we agree with the 

administrative judge’s finding that the appellant failed to establish a prima facie 

case of whistleblower reprisal, we MODIFY the initial decision to VACATE the 

administrative judge’s alternative finding that the agency proved by clear and 

convincing evidence that it would have demoted the appellant in the absence of 

his alleged protected disclosures. 

BACKGROUND 

¶2 The appellant was employed as a GS-9 Supervisory Claims Assistant. 

Initial Appeal File (IAF), Tab 1 at 1, 8. On March 25, 2015, the agency proposed 

to remove him based on two specifications of a charge of conduct unbecoming 

and one specification of a charge of lack of candor. IAF, Tab 3 at 54-56. 

Specifically, the agency accused the appellant of smacking the complainant on the 

buttocks, and, on a separate occasion, rubbing his hand up her arm. Id. at 54. 

The proposal notice indicated that both incidents occurred during overtime work 

in the director’s conference room in or about June 2014. Id. The agency also 

charged the appellant with lacking candor when, during testimony before the 

Agency Investigation Board (AIB), he denied the specification regarding 

smacking the complainant on the buttocks. Id. at 54-55. After providing him 

with the opportunity to respond to the notice of proposed removal, the decid ing 
3

official issued a decision letter sustaining the charges but mitigating the penalty 

to a demotion to the GS-6 Advanced Medical Support Assistant position. Id.

at 9-11.

¶3 Thereafter, the appellant appealed his demotion and argued, among other 

things, that he had minimal opportunity to have physical contact with the 

complainant because, during the spring of 2014, he worked in the logistics room 

during regular hours and only worked in the director’s conference room on 

weekends, and he denied that he engaged in the improper physical contact with 

the complainant as alleged. IAF, Tab 1 at 6, Tab 10 at 18-19. He also raised 

claims of harmful procedural error, violation of his due process rights, and 

reprisal for whistleblowing and equal employment opportunity (EEO) activity. 

IAF, Tab 11 at 2-4. After holding a hearing at which the appellant chose not to 

testify, the administrative judge issued an initial decision sustaining the 

appellant’s demotion. IAF, Tab 20, Initial Decision (ID). In finding that the 

agency proved the charges by preponderant evidence, the administrative judge 

relied on the testimony of the complainant as well as two other witnesses who 

testified regarding the incidents of inappropriate physical contact: a Licensed 

Practical Nurse; and a Claims Clerk. ID at 8-10. The administrative judge also 

considered the appellant’s claim, as stated in his prehearing statement, that he di d 

not inappropriately touch the complainant, but the administrative judge did not 

credit his claim because he did not testify at the hearing and she was unable to 

assess his demeanor and credibility. ID at 10; IAF, Tab 10 at 19. The 

administrative judge found that the appellant failed to establish any of his

affirmative defenses. ID at 12-18. The administrative judge further found that 

the agency established the nexus requirement and that the penalty of demotion 

was within the bounds of reasonableness.

2

 ID at 18-20.

 

2

The appellant does not appear to challenge these findings in his petition for review. 

In any event, we discern no basis for disturbing the administrative judge ’s 

well-reasoned determinations. 
4

¶4 The appellant has filed a petition for review, in which he argues that the 

administrative judge erred in her credibility determinations and in denying 

several of his requested witnesses. Petition for Review (PFR) File, Tab 1 at 4-6. 

He also avers that he was not aware of the “gravity” of his decision not to testify. 

Id. at 5. The agency has responded in opposition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW 

¶5 On review, the appellant asserts that the administrative judge erred in 

sustaining the charges. PFR File, Tab 1 at 4-6. Specifically, he argues that the 

administrative judge erred in her credibility findings regarding the complainant

and the agency’s other two witnesses who testified about the alleged 

inappropriate conduct at issue. Id. 

¶6 The Board must defer to an administrative judge’s credibility 

determinations when they are based, explicitly or implicitly, on the observation of 

the demeanor of witnesses testifying at a hearing; the Board may overturn such 

determinations only when it has “sufficiently sound” reasons for doing so. Haebe 

v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). We have 

considered the appellant’s arguments on review regarding the administrative 

judge’s credibility findings and weighing of evidence for the charged misconduct,

and we discern no reason to substitute our assessment of the record evidence for 

that of the administrative judge. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 

98, 105-06 (1997) (finding no reason to disturb the administrative judge ’s 

findings when she considered the evidence as a whole, drew appropriate 

inferences, and made reasoned conclusions); Broughton v. Department of Health 

& Human Services, 33 M.S.P.R. 357, 359 (1987) (same). 

¶7 Here, the administrative judge thoroughly reviewed the evidence and 

hearing testimony and specifically cited to Hillen v. Department of the Army, 
5

35 M.S.P.R. 453, 458 (1987),

3

in setting forth her credibility determinations. ID 

at 7-9. Specifically, the administrative judge found that the testimonies of the 

complainant, the Licensed Practical Nurse, and the Claims Clerk were more 

credible than the appellant’s unsworn denials. ID at 8, 10. In finding that the 

appellant had ample opportunity to engage in the physical contact with the 

complainant, the administrative judge also credited the testimony of the 

appellant’s witness, the Lead Claims Assistant, who stated that, while the 

appellant worked regular hours in the logistics office during the spring of 2014, 

he continued to work in the director’s conference room during overtime, and he 

went to the director’s conference room to sign in and out of his shift. 4 ID at 7.

The administrative judge expressly found that these witnesses “testified in a very 

clear, direct, and straightforward manner,” ID at 8-9, and these demeanor-based 

credibility findings deserve deference from the Board, see Purifoy v. Department 

of Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016); Haebe, 288 F.3d 

at 1301.

 

3

To resolve credibility issues, an administrative judge must identify the factual 

questions in dispute, summarize the evidence on each disputed question, state which 

version she believes, and explain in detail why she found the chosen version more 

credible, considering the following factors: (1) the witness’s opportunity and capacity 

to observe the event or act in question; (2) the witness’s character; (3) any prior 

inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the 

contradiction of the witness’s version of events by other evidence or its consistency 

with other evidence; (6) the inherent improbability of the witness’s version of events; 

and (7) the witness’s demeanor. Hillen, 35 M.S.P.R. at 458.

4

The administrative judge also noted that a shift change appeared to occur during the 

buttocks-slapping incident. ID at 10. On appeal, the appellant argues that the record 

does not support a finding that there was a shift change. PFR File, Tab 1 at 6. Even 

assuming the administrative judge made an incorrect finding about the shift change, 

however, her error would not provide a basis for reversing the initial decision because 

the administrative judge credited the complainant’s unrebutted testimony that the 

appellant slapped her buttocks. See Panter v. Department of the Air Force, 22 M.S.P.R. 

281, 282 (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). 
6

¶8 On review, the appellant argues that the complainant was not a credible 

witness because her Board testimony differed from her AIB testimony. PFR File, 

Tab 1 at 4-5. He also argues that the Claims Clerk’s testimony was not credible 

because he did not report the incidents prior to the AIB interviews and beca use of 

his relationship with the complainant. Id. The administrative judge considered 

the same arguments below and addressed them in the initial decision. ID at 8-9. 

Merely repeating arguments on review does not provide a basis to disturb the 

administrative judge’s well-reasoned findings that the agency proved the charges 

by preponderant evidence. See Haebe, 288 F.3d at 1301. The appellant also 

asserts that the administrative judge erred in finding the Licensed Practical Nurse 

to be credible because her Board testimony that the complainant walked away 

after being smacked by the appellant differed from her AIB testimony that the 

complainant sat down after the incident. PFR File, Tab 1 at 5. We have 

considered this minor inconsistency between the Licensed Practical Nurse’s

Board testimony and her AIB testimony, but we find it insufficient to render her 

testimony incredible on the core issues contained in the agency’s charge and 

specification. See Thomas v. U.S. Postal Service, 116 M.S.P.R. 453, ¶ 5 (2011) 

(holding that minor inconsistencies do not necessarily render a witness’s 

testimony incredible).

¶9 On review, the appellant also argues that he was not aware of the “gravity” 

of his decision not to testify, and he contends that his decision was influenced by 

the administrative judge’s statement that the hearing would be 15 minutes shorter 

if he did not testify and the agency’s decision not to call him as a witness. 

PFR File, Tab 1 at 5. To the extent that the appellant is arguing that his decision 

not to testify was involuntary, we find no support for such a claim as the 

administrative judge approved the appellant as a joint witness and, during the 

hearing, specifically asked the appellant if he would be testifying. IAF, Tab 11

at 5. Furthermore, to the extent the appellant is arguing that the administrative 

judge erred by not informing him that his decision not to testify could influence 
7

her credibility findings, the Board previously has held that such a warning is not

required. Campbell v. Department of Transportation, 15 M.S.P.R. 92, 109 (1983) 

(finding no error in an administrative judge’s determination that the appellant’s 

silence detracted from the credibility of his arguments despite the administrative 

judge’s failure to notify the appellant of the possible implications of a decision 

not to testify), aff’d, 735 F.2d 497 (Fed. Cir. 1984). Accordingly, although the 

appellant may regret his decision not to testify, he has not established any error 

on the part of the administrative judge. 

¶10 On review, the appellant further asserts that the administrative judge 

improperly denied “several” of his requested witnesses whom he claims would 

have testified that he “worked in a different room (logistics office[)] during 

overtime” during the relevant time period. PFR File, Tab 1 at 6. There is no 

evidence in the record indicating that the appellant objected to the administrative 

judge’s denial of these witnesses, and thus he is precluded from doing so on 

review. See Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988). 

¶11 Moreover, even if the appellant had preserved an objection below, we 

would not disturb the initial decision because the appellant has not shown that the 

administrative judge abused her discretion when ruling on witnesses. See Franco 

v. U.S. Postal Service, 27 M.S.P.R. 322, 325 (1985) (holding that the 

administrative judge has wide discretion under the Board’s regulations to exclude 

witnesses when it has not been shown that their testimony would be relevant, 

material, and nonrepetitious); 5 C.F.R. § 1201.41(b)(8), (10). We have reviewed 

the appellant’s petition for review and proffer of witnesses below, and we are 

unable to identify the witnesses at issue, or how their testimony would have 

affected the outcome of his appeal. The appellant requested 58 witnesses, but 

none of the witness proffers indicated that the testimony would address whether 
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the appellant worked in the logistics office during overtime. 5 IAF, Tab 10 at 6-8.

Moreover, the record evidence, including the testimony of the Lead Claims 

Assistant—the appellant’s own witness—supports the administrative judge’s 

finding that the appellant had ample opportunity to touch the complainant in the 

director’s conference room. ID at 9; see Thomas, 116 M.S.P.R. 453, ¶ 4 (holding 

that, to obtain reversal of an initial decision based on abuse of discretion in 

excluding evidence, the appellant must show on review that the disallowed 

witness or evidence would have affected the outcome of the appeal).

¶12 On review, the appellant does not contest the administrative judge’s 

findings on his affirmative defenses. We affirm the administrative judge’s 

well-reasoned findings that the appellant failed to establish his affirmative 

defenses of harmful procedural error, violation of his due process rights, and 

reprisal for his EEO activity. ID at 12-13, 15-18. We also affirm the 

administrative judge’s finding that the appellant failed to establish a prima facie 

case of whistleblower reprisal. ID at 13-15. However, because we agree with the 

administrative judge’s finding that the appellant failed to demonstrate that his 

alleged protected disclosure was a contributing factor in the agency’s decision to 

demote him, we modify the initial decision to vacate the administrative judge’s 

alternate finding that the agency proved by clear and convincing evidence that it 

would have demoted the appellant in the absence of his alleged protected 

disclosure. ID at 15; see Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 

154, ¶ 19 n.10 (2014) (stating that the Board may not proceed to the clear and 

convincing evidence test unless it has first determined that the appellant 

established his prima face case), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). 

 

5

The administrative judge approved eight of the appellant’s requested witnesses, 

including six whom the appellant alleged were “witness to activities taking place in 

the . . . overtime work area and worked in the director's conference room at the time of 

[the] accusations.” IAF, Tab 10 at 4-7, Tab 11 at 4-7, Tabs 13, 15. 
9

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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). Title 5 of 

the United States 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 
10

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 

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f); 

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 United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. 

Additional information about the U.S. Court of Appeals for the Federal Circuit is 

available at the court’s website, www.cafc.uscourts.gov. Of particular relevance 

is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained 
11

within the court’s Rules of Practice, and Forms 5, 6, and 11. Additional 

information about other courts of appeals can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for an appeal to the 

U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. 

The 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