        NOTE: This disposition is nonprecedential.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 Liti-
gation 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 Stand-
ards 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 regard-
ing 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 the opportunity to respond
to the charges: however, the Agency sustained the pro-
posed removal, effective February 11, 2011.
    With regard to the lack of candor charge, on Septem-
ber 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 re-
sponse, 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 influ-
ence of alcohol or drugs, and a hit-and-run driving inci-
dent 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 suspend-
ed 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 juris-
diction 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 intention-
ally 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 vehi-
cle 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 intro-
duced 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 Oak-
land 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 con-
tends “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 co-
worker 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 discre-
tion in affirming the AJ’s credibility determination.
WYRICK   v. TRANSPORTATION                                 7



           III. Constitutional Due Process Claim
     Mr. Wyrick contends he has a constitutional claim be-
cause 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. Water-
man 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 truth-
ful.” 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 pro-
posal 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 mitigat-
ing 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 dis-
crimination 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 addic-
tion 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 deter-
mined 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.
