N OTE : This disposition is nonprecedential. 

# United States Court of Appeals **for the Federal Circuit**

______________________ EZELL WYRICK, Petitioner,

v.

DEPARTMENT OF TRANSP ORTATION, Respondent.

______________________

2014

- 3162

______________________ Petition for review of the Merit Systems Protection Board in No. SF

- 0752

- 12

- 0524 -I- 3.

______________________

Decided: December 9, 2014

______________________

E ZELL W YRICK , of Vallejo, California, pro se.

S COTT R. D AMELIN , Trial Attorney, Commercial Li t igation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were J OYCE R. B RANDA , Acting Assistant Attorney General, R OBERT E. K IRSCHMAN , J R

. , Director, and D ONALD J. K INNER , Assistant Dir ector.

______________________

Before M OORE , P LAGER , and W ALLACH , Circuit Judges.WYRICK v. TRANSPORTATION 2

P ER C URIAM

. 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.

B ACKGROUND Mr. Wyrick is a former employee of the DOT Federal Aviation Administration (“Agency”) where he worked as an Administrative Officer at the Oaklan d Flight Stan dard s District Office.
On December 16, 2010, the Agency proposed removing Mr. Wyrick from his position as an Administrative Offic er based on the following charges: (1) lack of candor regar ding a driving under the influence (“DUI”) and hit

- and run

incident; (2) operation of a government

- owned vehicle without a license; and (3) failure to report a suspended license. Mr. Wyrick was given t he opport unity to respond to the charges: however, the Agency sustained the pr oposed removal, effective Febr uary 11, 2011.
With regard to the lack of candor charge, on Septe mber 4, 2009, the manager of the Oakland Flight Standard s District Office , Ronald Waterman, questioned Mr. Wyrick regarding allega tions he had been arrested for a DUI and hit

- and

- run acciden t. According to the Agency, in r esponse, 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 . TheWYRICK v. TRANSPORTATION 3

documentation showed that on June 12 , 2009, Mr. Wy r ick was arrested and charged with driving under the infl uence of alcohol or drugs, and a hit

- and

- run driving inc ident 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, t he 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 suspe nded 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 suspend ed, as charged.” R esp’t’s A pp

. 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. Wyric k’s license was suspen ded in June 2009 and remained suspended on July 21, 2009. The AJ did not sustain the second charge that Mr. Wyrick had check ed out a government vehicle on July 7, 2009

. The AJ also did not sustain the Agency’s charge of failure to r eport 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 pet ition 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 suffic iently shown a basis for disturbing the AJ’s findings,WYRICK v. TRANSPORTATION 4

including the findings related to Mr. Wyrick’s affirmative defense of alcoholism.
Mr. Wyrick timely appealed and this court has juri sdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012).

D ISCUSSION

Thi s 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) (200 6 ); 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 arre sted 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 Bo ard 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 decep tion in that he knew he had been arrested for a DUI.” Resp’t ’sWYRICK 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 intentio nally lied or omitted informa tion 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 wit hout 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 i s not a matter in dispute.
With regard to the second charge of operating a veh icle 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 A gency intr oduced vehicle logs showing Mr. Wyrick check ed 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 Oa kland Flight Standards District Office showing he checked out a government vehicle o n July 21, 2009.WYRICK v. TRANSPORTATION 6

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 co ntends “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 a ny 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 acknowl edged 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 co

worker testified the person who is going to use the vehicle is the person who signs it out. Th e AJ acknowledged Mr. Wyrick’s offered testimony that he had signed out vehicles for others before, but determined he had not raise d 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, w hen 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 , 75 4 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 discr etion in affirming the AJ’s credibility determination

.WYRICK v. TRANSPORTATION 7

III. Constitutional Due Process Claim
Mr. Wyrick contends he has a constitutional claim b ecause 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. Wate rman had commented “one of the factors” contribut ing to Mr. Wa terman’ s recommendation of removal was a June 8, 2010, conversation between Mr. Waterman and Mr. Wyrick in which Mr. Wyrick had been “less than trut hful.” Resp’t’s App. 38 (internal quota tion 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 t hough “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 pr oposal letter. This court accordingly discerns no error in the Board’s af firmance of the AJ’s decision.
IV. Removal and Mitigating Circumstances
Mr. Wyrick argues the Board did not consider mitiga ting factors when evaluating his removal, such as his alcoholism, his eighteen years of service to the A gency, 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 di scrimination due to alcoholism, an appellant must show (1)WYRICK v. TRANSPORTATION 8

“ 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 addi ction or any treat ment and that, even if he had , mitigation due to alcoholism is “ outweighed by the seriousness of the offense s in relation to [Mr. Wyrick’s] position, his prior disciplinary record, and the fact that there is no reason to conclude that [Mr. Wy ri ck’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 de fense 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 agen cy.” Miguel v. Dep’t of Army , 727 F.2d 1081, 1083 (Fed. Cir. 1984). The AJ considered the mitigating factors and reasonably dete rmined the offense was serious enough to uphold Mr. Wyrick’s removal, and the Board’s affirmance was not an abuse of discretion

. C ONCLUSION 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

C OSTS

No costs.