NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

EZELL WYRICK,

Petitioner,

v.

DEPARTMENT OF TRANSPORTATION,

Respondent.

______________________ 

2014-3162

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-0752-12-0524-I-3.

______________________ 

Decided: December 9, 2014

______________________ 

EZELL WYRICK, of Vallejo, California, pro se. 

SCOTT R. DAMELIN, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent. With him 

on the brief were JOYCE R. BRANDA, Acting Assistant 

Attorney General, ROBERT E. KIRSCHMAN, JR., Director, 

and DONALD J. KINNER, Assistant Director. 

______________________ 

Before MOORE, PLAGER, and WALLACH, Circuit Judges.
2 WYRICK v. TRANSPORTATION

PER CURIAM. 

Ezell Wyrick appeals from the May 21, 2014, decision 

of the Merit Systems Protection Board (“Board”) denying 

his petition for review and affirming the administrative 

judge’s (“AJ”) decision sustaining the Department of 

Transportation’s (“DOT”) charges against Mr. Wyrick and 

penalizing him by removal. For the reasons set forth 

below, this court affirms. 

BACKGROUND

Mr. Wyrick is a former employee of the DOT Federal 

Aviation Administration (“Agency”) where he worked as 

an Administrative Officer at the Oakland Flight Standards District Office. 

On December 16, 2010, the Agency proposed removing 

Mr. Wyrick from his position as an Administrative Officer 

based on the following charges: (1) lack of candor regarding a driving under the influence (“DUI”) and hit-and runincident; (2) operation of a government-owned vehicle 

without a license; and (3) failure to report a suspended 

license. Mr. Wyrick was given the opportunity to respond 

to the charges: however, the Agency sustained the proposed removal, effective February 11, 2011. 

With regard to the lack of candor charge, on September 4, 2009, the manager of the Oakland Flight Standards 

District Office, Ronald Waterman, questioned Mr. Wyrick 

regarding allegations he had been arrested for a DUI and 

hit-and-run accident. According to the Agency, in response, Mr. Wyrick denied the allegations and stated his 

stepson had driven his personal car and been involved in 

a DUI and hit-and-run several months earlier. Almost a 

year later, on August 10, 2010, the Agency received a 

Report of Investigation from a Special Agent dated June 

21, 2010, stating Mr. Wyrick was shown documentation 

concerning his DUI and hit-and-run incident and Mr. 

Wyrick admitted to being arrested for the offenses. The 
WYRICK v. TRANSPORTATION 3

documentation showed that on June 12, 2009, Mr. Wyrick

was arrested and charged with driving under the influence of alcohol or drugs, and a hit-and-run driving incident resulting in damage to property. The Agency 

determined this information explicitly contradicted Mr. 

Wyrick’s September 4, 2009, response to Mr. Waterman 

regarding his alleged arrest for a DUI and hit-and-run. 

On review, the AJ sustained this charge. With regard 

to Mr. Wyrick’s charge of operating a government vehicle 

without a license, the AJ sustained one of two charges by 

the Agency. The Agency charged that on July 21, 2009, 

Mr. Wyrick checked out and drove a government vehicle 

while he had a suspended California driver’s license, 

which was both a misuse of the vehicle and a violation of 

government policies. The AJ determined “it is more likely 

true than not that [Mr. Wyrick] drove a Government 

vehicle on July 29, 2009, when his license was suspended, 

as charged.” Resp’t’s App. 29. However, Mr. Wyrick was 

charged with operating a government vehicle with a 

suspended license on July 21, not July 29, 2009, and the 

AJ therefore misstated the date. The Board found this 

was inconsequential as Mr. Wyrick’s license was suspended in June 2009 and remained suspended on July 21, 

2009. The AJ did not sustain the second charge that Mr. 

Wyrick had checked out a government vehicle on July 7, 

2009. The AJ also did not sustain the Agency’s charge of 

failure to report a suspended driver’s license. The AJ 

ultimately determined that a nexus existed between Mr. 

Wyrick’s conduct and “the efficiency of the service” and 

thus the penalty of removal was reasonable. Resp’t’s App. 

40. 

In July 2013, Mr. Wyrick filed a petition for review of 

the AJ’s initial decision. Resp’t’s App. 8. The Board 

found the AJ properly sustained the Agency’s charges and 

affirmed its findings. The Board also denied Mr. Wyrick’s 

petition for review after it concluded Mr. Wyrick had not 

sufficiently shown a basis for disturbing the AJ’s findings, 
4 WYRICK v. TRANSPORTATION

including the findings related to Mr. Wyrick’s affirmative 

defense of alcoholism. 

Mr. Wyrick timely appealed and this court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012). 

DISCUSSION

This court may only set aside the Board’s decision if it 

is “found to be—(1) arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law; (2) 

obtained without procedures required by law, rule, or 

regulation having been followed; or (3) unsupported by 

substantial evidence.” 5 U.S.C. § 7703(c) (2006); see also 

Kievenaar v. Office of Pers. Mgmt., 421 F.3d 1359, 1362 

(Fed. Cir. 2005). Issues of statutory and regulatory 

construction are reviewed de novo. Billings v. United 

States, 322 F.3d 1328, 1332 (Fed. Cir. 2003).

I. Lack of Candor

Mr. Wyrick contends the “police report supports” his 

claims that he was never arrested for a hit-and-run in 

June 2009, since the report states in “two separate places 

that the Appellant was only arrested for a DUI.” Pet’r’s 

Br. 2. Mr. Wyrick also argues “[a]lthough he was later 

charge[d] for hit and run, [o]n September 4, 2009, he was 

asked what he was arrested for, not what he was charged 

for.” Id. This court is not persuaded by this argument. 

The Board found Mr. Wyrick had been involved in a DUI 

and hit-and-run, and when he was confronted by Mr. 

Waterman, he denied any involvement, claiming his 

stepson had been involved in an incident. Moreover, Mr. 

Wyrick admitted he was arrested for both, stating under 

oath to the Special Agent that he “was arrested in 06/2009 

for hit and run and DUI.” Id. 

As the government points out, “even if Mr. Wyrick’s 

testimony were believed, the board found that his denial 

on September 4, 2009, involved an element of deception in 

that he knew he had been arrested for a DUI.” Resp’t’s
WYRICK v. TRANSPORTATION 5

Br. 13. “Lack of candor . . . is a . . . flexible concept whose 

contours and elements depend upon the particular context 

and conduct involved. It may involve a failure to disclose

something that, in the circumstances, should have been 

disclosed in order to make the given statement accurate 

and complete.” Ludlum v. Dep’t of Justice, 278 F.3d 1280, 

1284 (Fed. Cir. 2002). Given Mr. Wyrick either intentionally lied or omitted information regarding his involvement 

in this incident, this court discerns no error in the Board’s 

decision. 

II. Operating a Government Vehicle with a Suspended 

License

Mr. Wyrick contends that with respect to the charge 

of operation of a government vehicle without a license, 

“[t]he Agency failed to prove the charge because it failed 

to prove that the Appellant signed out or operated a 

government vehicle on that date.” Pet’r’s Br. 2. Mr. 

Wyrick also argues “the time sheet presented in the 

Agency File is a time sheet from July 7, 2007, not 2009.” 

Id. The AJ found “no preponderant evidence that the 

appellant signed out a government vehicle on July 7, 

2009, as charged” and determined “[t]his specification is 

not sustained.” Resp’t’s App. 28. Accordingly, this is not 

a matter in dispute.

With regard to the second charge of operating a vehicle on July 21, 2009, Mr. Wyrick contends that “[o]ther 

than [his own] unsupported claim that he may have 

driven the car on the date in question, the Agency has no 

evidence that he actually operated the vehicle on July 21, 

2009.” Pet’r’s Br. 3. This is incorrect. The Agency introduced vehicle logs showing Mr. Wyrick checked out a 

government vehicle on July 21, 2009. Additionally, Mr. 

Wyrick, under oath to a Special Agent, admitted he had 

seen the produced government vehicle logs for the Oakland Flight Standards District Office showing he checked 

out a government vehicle on July 21, 2009. 
6 WYRICK v. TRANSPORTATION

Mr. Wyrick also stated that “[p]art of my duties then 

was to make sure the Government vehicles were current 

on maintenance issues, clean and full of fuel. I believe 

that on 07/21/2009 I took the Government vehicle to get 

washed.” Resp’t’s App. 15. On appeal he acknowledges 

he made this admission to the Special Officer but contends “when he later realized the Agency wanted to 

terminate him, he said that he was not sure whether he 

drove the car on that day. . . [and] he was confused and in 

a fog when he spoke to [the Special Officer], due to his 

alcoholism.” Pet’r’s Br. 3. Mr. Wyrick also argues “[t]he 

Agency did not have any video of him driving the car on 

that day” or offer any “witnesses to testify that he drove 

the car on that day.” Id. Finally, at the hearing, Mr. 

Wyrick acknowledged he signed out a vehicle on the day 

in question, but argues he “routinely signed cars out for 

the inspectors, and may have done so on that day.” Id. 

These arguments are not persuasive. Mr. Wyrick’s coworker testified the person who is going to use the vehicle 

is the person who signs it out. The AJ acknowledged Mr. 

Wyrick’s offered testimony that he had signed out vehicles 

for others before, but determined he had not raised this 

defense until after his own admission, or any time before 

the hearing, and concluded “that [Mr. Wyrick’s] extremely 

tardy explanation is worthy of very little weight, and that 

it is more likely true than not that he drove a Government 

vehicle on July 29, 2009, when his license was suspended, 

as charged.” Resp’t’s App. 29. “The determination of the 

credibility of the witnesses is within the discretion of the 

presiding official who heard their testimony and saw their 

demeanor.” Griessenauer v. Dep’t of Energy, 754 F.2d 361, 

364 (Fed. Cir. 1985). Mr. Wyrick does not present any 

argument as to why the AJ’s credibility finding should be 

disturbed, and we find the Board did not abuse its discretion in affirming the AJ’s credibility determination. 
WYRICK v. TRANSPORTATION 7

III. Constitutional Due Process Claim

Mr. Wyrick contends he has a constitutional claim because the “Agency denied him due process by failing to 

provide him an opportunity to reply to evidence on which 

the deciding official relied upon in rendering his decision.” 

Pet’r’s Br. 3. Specifically, the AJ found that Mr. Waterman had commented “one of the factors” contributing to 

Mr. Waterman’s recommendation of removal was a June 

8, 2010, conversation between Mr. Waterman and Mr. 

Wyrick in which Mr. Wyrick had been “less than truthful.” Resp’t’s App. 38 (internal quotation marks omitted). 

Mr. Wyrick argued he did not have a chance to respond to 

this evidence, and his due process rights were therefore 

violated. 

The AJ addressed this argument, and determined 

that though “the deciding official may consider only 

information that is in the notice of proposed removal or 

the employee’s response,” this information was “merely 

cumulative” and there was nothing that pointed “towards 

prejudice” against Mr. Wyrick, and if there was error, it 

was “harmless.” Id. at 38–40 (internal quotation marks 

omitted). Moreover, it is undisputed this conversation 

was never specified as a reason for removal in the proposal letter. This court accordingly discerns no error in 

the Board’s affirmance of the AJ’s decision. 

IV. Removal and Mitigating Circumstances

Mr. Wyrick argues the Board did not consider mitigating factors when evaluating his removal, such as his 

alcoholism, his eighteen years of service to the Agency, his 

performance record, and the fact that he had never been 

disciplined in his job other than by Mr. Waterman. Pet’r’s 

Br. 4. Ultimately, Mr. Wyrick argues “the evidence relied 

upon does not support a removal.” Id. 

To establish an affirmative defense of disability discrimination due to alcoholism, an appellant must show (1) 
8 WYRICK v. TRANSPORTATION

“he suffers from an addiction,” and (2) “that the addiction 

caused the misconduct.” Avant v. Dep’t of the Navy, 60 

M.S.P.R. 467, 476 (1994). The AJ determined Mr. Wyrick 

did not provide any evidence regarding his alcohol addiction or any treatment and that, even if he had, mitigation 

due to alcoholism is “outweighed by the seriousness of the 

offenses in relation to [Mr. Wyrick’s] position, his prior 

disciplinary record, and the fact that there is no reason to 

conclude that [Mr. Wyrick’s] failure to be fully truthful 

was caused by his use of alcohol.” Resp’t’s App. 42; see 

Huettner v. Dep’t of the Army, 54 M.S.P.R. 472, 475 (1992) 

(holding a defense of alcoholism was outweighed by the 

serious[ness] of the offense and the appellant’s prior 

disciplinary record). “It is a well-established rule of civil 

service law that the penalty for employee misconduct is 

left to the sound discretion of the agency.” Miguel v. Dep’t 

of Army, 727 F.2d 1081, 1083 (Fed. Cir. 1984). The AJ 

considered the mitigating factors and reasonably determined the offense was serious enough to uphold Mr. 

Wyrick’s removal, and the Board’s affirmance was not an 

abuse of discretion. 

CONCLUSION

We have considered Mr. Wyrick’s other arguments 

and find them unpersuasive. For the reasons set forth 

above, the decision of the Board is 

AFFIRMED

COSTS 

No costs.