Barry James Nicholson v. Department of Veterans Affairs

Appellant Barry James Nicholson, a GS-9 Supervisory Claims Assistant, was proposed for removal for two specifications of conduct unbecoming (one alleged buttocks slap, one alleged inappropriate touching up the arm) and one specification of lack of candor for denying the buttocks incident at an Agency Investigation Board (AIB).
The deciding official sustained the charges but mitigated the penalty to a demotion to GS-6 Advanced Medical Support Assistant; Nicholson appealed to the MSPB and declined to testify at the hearing.
Administrative Judge (AJ) credited the complainant and two agency witnesses (Licensed Practical Nurse and Claims Clerk) and relied on the appellant’s own witness (Lead Claims Assistant) to find the appellant had opportunity to commit the acts; AJ found the agency proved the charges by a preponderance and upheld the demotion.
Nicholson alleged harmful procedural error, due process violations, reprisal for whistleblowing and EEO activity, challenged witness exclusions, and contested credibility findings on review.
The Board denied review, deferring to the AJ’s demeanor-based credibility findings, rejected arguments about minor inconsistencies among prior statements, found no error in the AJ’s handling of witness requests, affirmed rejection of affirmative defenses, and modified the AJ’s alternative clear-and-convincing finding because Nicholson failed to establish a prima facie whistleblower reprisal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence/credibility to sustain misconduct charges	Nicholson: testimony inconsistencies and his unsworn denials show charges unsupported	VA: Complainant and two witnesses credible; testimony shows misconduct and opportunity	AJ credited agency witnesses; Board deferred to demeanor-based credibility and sustained charges
Effect of appellant not testifying	Nicholson: he didn’t understand gravity; AJ’s remark and agency's choice not to call him coerced silence	VA: Appellant was asked and approved as joint witness; decision not to testify was voluntary	Board found no involuntariness or procedural error; failure to testify may affect credibility but no error in AJ’s conduct
Exclusion/denial of requested witnesses	Nicholson: several witnesses would show he worked in a different room during overtime	VA: AJ had discretion; proffers did not show relevance to opportunity element	Issue not preserved below; alternatively, Board finds AJ did not abuse discretion and approved several defense witnesses
Whistleblower reprisal / clear-and-convincing alternative	Nicholson: demotion was retaliation for protected disclosure	VA: Agency’s action was for misconduct; demotion supported by evidence	Board: Nicholson failed to make prima facie reprisal case; therefore vacated AJ’s alternative clear-and-convincing finding and affirmed no whistleblower reprisal established

Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir.) (Board must defer to AJ demeanor-based credibility findings absent sufficiently sound reasons to overturn)
Purifoy v. Department of Veterans Affairs, 838 F.3d 1367 (Fed. Cir.) (deference to credibility findings based on witness demeanor)
Hillen v. Department of the Army, 35 M.S.P.R. 453 (MSPB) (framework for resolving credibility: identify disputed facts, summarize evidence, state which version is believed and explain why using listed factors)
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98 (MSPB) (courts generally will not disturb AJ findings when she considered the evidence as a whole and made reasoned conclusions)
Thomas v. U.S. Postal Service, 116 M.S.P.R. 453 (MSPB) (minor inconsistencies in testimony do not necessarily render witness incredible)
Campbell v. Department of Transportation, 15 M.S.P.R. 92 (MSPB) (no requirement that AJ warn appellant that silence may affect credibility)
Panter v. Department of the Air Force, 22 M.S.P.R. 281 (MSPB) (non-prejudicial adjudicatory errors do not warrant reversal)