UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARRY JAMES NICHOLSON, DOCKET NUMBER
Appellant, DC-0752-15-1019-I-1
v.
DEPARTMENT OF VETERANS DATE: December 21, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 logistic s 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 woul d 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
8
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.
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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 mu st 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
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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 representatio n in a given
case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.