Ricardo Wilson v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RICARDO D. WILSON, DOCKET NUMBER

Appellant, DA-0714-21-0194-I-1

v.

DEPARTMENT OF VETERANS DATE: April 25, 2024

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Stephen E. Jones , Esquire, Dallas, Texas, for the appellant.

Amanda J. Moreno , Houston, Texas, for the appellant.

Andrew Broad and Devora Mas , Esquire, Houston, Texas, for the agency.

Kacy Coble , Esquire, North Little Rock, Arkansas, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

The appellant has filed a petition for review of the initial decision, which

sustained his removal pursuant to 38 U.S.C. § 714 based on one charge of misuse

of Government equipment and one charge of lack of candor. For the reasons

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

discussed below, we GRANT the appellant’s petition for review, VACATE the

initial decision, and REMAND this matter to the Dallas Regional Office for

further adjudication in accordance with this Remand Order.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant’s arguments do not provide a basis to disturb the initial decision.

The appellant argues that the agency presented insufficient evidence to

support the sole specification underlying its charge of misuse of Government

equipment, i.e., that in violation of an agency directive, the appellant used his

Government-issued cellphone to transmit sexually explicit photos of himself.

Petition for Review (PFR) File, Tab 1 at 8-20; Initial Appeal File (IAF),

Tab 6 at 160, 229-35. To this end, he contends that the administrative judge

(1) relied solely on documentary evidence and written statements 2 submitted by

the agency employee who had received the subject photos and (2) “improperly

overlooked” other evidence in the record. PFR File, Tab 1 at 9. He reasserts that

the agency’s witness harbored a retaliatory motive against him and doctored the

explicit photos at issue to make them appear to have been sent from his

Government cellphone. 3 Id. at 10-16. The appellant’s arguments, however, do

not provide a basis to disturb the administrative judge’s reasoned conclusion that

the witness’s version of events was “far more logical.” IAF, Tab 29, Initial

Decision (ID) at 6-12; 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

2

Although the appellant initially requested a hearing on the matter, IAF, Tab 1 at 2, he

subsequently withdrew his request in favor of a decision on the written record, IAF,

Tab 16 at 4-5. In his petition and reply, the appellant repeatedly asserts that the

administrative judge’s credibility determinations are not entitled to any deference

because she considered only the written record, e.g., PFR File, Tab 1 at 16, Tab 4

at 4-6; however, he does not identify any error with her determinations or otherwise

provide a basis for the Board to disturb her factual findings.

3

The appellant acknowledged before the administrative judge that he had sent explicit

photos of himself to the subject individual; however, he averred that he had done so

from his personal cellphone. IAF, Tab 23 at 29.

3

reasoned conclusions); Broughton v. Department of Health & Human Services ,

33 M.S.P.R. 357, 359 (1987) (same); see also Marques v. Department of Health

& Human Services, 22 M.S.P.R. 129, 132 (1984) (explaining that

an administrative judge’s failure to discuss all of the evidence of record does not

mean that the evidence was not considered), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)

(Table). Indeed, the administrative judge considered, but found unavailing, the

appellant’s argument that the witness had purposefully manipulated the illicit

photos. ID at 6-12. To this end, she found satisfactory the witness’s proffer that

any inconsistencies in the images provided were attributable to either iPhone

software updates or the witness having taken additional screenshots of her text

exchanges with the appellant in order to show a more complete view of her phone

screen. 4 ID at 10. The administrative judge also fully considered both the

witness’s retaliatory motive and incredulous statements made by the witness but

concluded that she was nonetheless credible regarding the pertinent facts

underlying the agency’s charge. ID at 8-12, 13 n.9; see Mitchell v. Department of

the Air Force, 91 M.S.P.R. 201, ¶ 10 (2002) (stating that a witness who is not

credible about one matter may be credible about another matter). Thus, we find

the appellant’s assertions unavailing. 5

4

The appellant draws the Board’s attention to the fact that the administrative judge

requested the agency to resubmit certain exhibits, including the explicit images at issue,

as they “need[ed] to be resized, or otherwise corrected.” PFR File, Tab 1 at 11; IAF,

Tab 15 at 5 & n.2. To the extent the appellant argues that this request was improper, we

find his assertion unavailing. Indeed, we discern no basis to disturb the administrative

judge’s conclusion that, with or without the additional images, the agency proved the

subject charge by substantial evidence. ID at 9 n.6. The appellant also draws the

Board’s attention to purported issues with certain text messages/images that he alleges

are not attributable to either a software update or subsequent screenshots being taken,

e.g., one screenshot purportedly appearing “visibly crooked as if it were carelessly

photoshopped.” PFR File, Tab 1 at 14 (emphasis as in original); IAF, Tab 6 at 203. We

have considered all of the purported issues identified by the appellant; however, we find

that none warrant a different outcome. To this end, there are numerous explanations for

a screenshot appearing slightly askew apart from purposeful manipulation, e.g.,

imprecision in converting the image containing the screenshot to a Portable Document

Format file.

4

The appellant asserts that the administrative judge erred in finding that he

failed to prove that the agency violated his due process rights. PFR File, Tab 1

at 21-25. To this end, he argues that, because the aforementioned witness

initially showed the agency’s fact-finding team the explicit photos from her

cellphone, the agency was required to provide the appellant with physical access

to the witness’s phone “during the predetermination period.” Id. at 23-25; PFR

File, Tab 4 at 8. We disagree. Indeed, the record does not indicate, nor does the

appellant allege, that the deciding official ever physically inspected the witness’s

cellphone; rather, it indicates that he viewed only what was provided in the

agency’s evidence file, i.e., screenshots of the images in question, all of which

were undisputedly provided to the appellant. IAF, Tab 22 at 20; see Ward v. U.S.

Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011) (explaining that a deciding

official violates an employee’s constitutional due process rights when he relies on

“new and material” ex parte information as a basis for his decision on either the

merits of a proposed charge or the penalty to be imposed). To the extent the

appellant believed that the witness’s cellphone or information contained therein

was relevant to his appeal, he could have sought to acquire the same through

means such as a nonparty discovery request or a subpoena; however, there is no

indication that he did so. See 5 C.F.R. §§ 1201.73, 1201.81. Thus, the

appellant’s assertion is unavailing.

The appellant contends that the agency committed harmful procedural error

by violating 38 U.S.C. § 714(c)(2), which provides, among other things, that the

5

The appellant also seemingly argues that the deciding official lacked credibility

because he stated in an affidavit that the appellant had apologized for his actions. PFR

File, Tab 1 at 20; IAF, Tab 22 at 19-20. The appellant avers that he “did not apologize

for sending the explicit images to [the witness] from his [G]overnment cell phone.”

PFR File, Tab 1 at 20. We find this argument unavailing. Indeed, the appellant stated,

among other things, “I am truly ashamed and regretful of my actions” and “I apologize

for my failure to maintain the integrity of my post” in response to the agency’s notice of

proposed removal. IAF, Tab 6 at 107-08. That the appellant did not explicitly identify

what he was ashamed of and/or apologizing for does not render the deciding official’s

statement inaccurate or otherwise call into question his credibility.

5

agency shall provide to an employee facing certain disciplinary actions “a file

containing all the evidence in support of the proposed action.” PFR File, Tab 1

at 26. To this end, the appellant avers that the agency failed to provide him with

(1) records allegedly obtained by the agency from his Government-issued

cellphone and (2) information provided to agency investigators by the agency’s

witness, i.e., a phone log and a PowerPoint presentation. Id. at 26-28. Again,

however, the appellant does not provide a basis to disturb the administrative

judge’s conclusion that the record was devoid of any indication that the deciding

official received or considered any of these items. ID at 19-20; IAF,

Tab 22 at 20. Thus, he has not identified any procedural error, much less one that

would likely have caused the agency to reach a different outcome. See Pumphrey

v. Department of Defense, 122 M.S.P.R. 186, ¶ 10 (2015) (explaining that a

procedural error is harmful when the record shows that an error by the agency

was likely to have caused the agency to reach a conclusion different from the one

it would have reached in the absence or cure of the error). Thus, the appellant’s

contention does not provide a basis to disturb the initial decision.

We remand the matter for the administrative judge to provide the parties with an

opportunity to present evidence and argument regarding whether the agency’s

error in sustaining the removal based on substantial evidence harmed the

appellant.

The deciding official here sustained the agency’s action because he found

that there was substantial evidence to support two of the charges levied against

the appellant, i.e., misuse of Government equipment and lack of candor. IAF,

Tab 6 at 18. 6 After the initial decision in this case was issued, the U.S. Court of

Appeals for the Federal Circuit found in Rodriguez v. Department of Veterans

Affairs, 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), that the agency had erred by

applying the substantial evidence standard to its internal review of a disciplinary

action under 38 U.S.C. § 714. The Federal Circuit found that substantial

6

The agency also charged the appellant with conduct unbecoming a Federal employee;

however, the deciding official did not sustain this charge. IAF, Tab 6 at 18, 161.

6

evidence 7 is the standard of review to be applied by the Board, not the agency,

and that the agency’s deciding official must apply the preponderance of the

evidence 8 standard in determining whether the appellant’s performance or

misconduct warrants the action at issue. Id. at 1298-1301; see Bryant v.

Department of Veterans Affairs, 26 F.4th 1344, 1347 (Fed. Cir. 2022) (agreeing

with the appellant’s contention that the agency’s decision was legally flawed

when the deciding official found the charge proved merely by substantial

evidence rather than preponderant evidence, as required by Rodriguez).

The Federal Circuit’s decision in Rodriguez applies to all pending cases,

regardless of when the events at issue took place. Semenov v. Department of

Veterans Affairs, 2023 MSPB 16, ¶ 22. The administrative judge and the parties

here did not have the benefit of Rodriguez prior to the close of the record. 9 We

therefore remand this case for adjudication of whether the agency’s application of

the substantial evidence standard was harmful. See id., ¶ 23 (finding it

appropriate to apply the harmful error standard from 5 U.S.C. § 7701(c)(2) to

actions taken under 38 U.S.C. § 714). On remand, the administrative judge

should provide the parties with an opportunity to present evidence and argument,

addressing whether the agency’s use of the substantial evidence standard

constituted harmful error. See 5 U.S.C. § 7701(a)(1), (b)(1); id., ¶ 24.

Regardless of whether the appellant proves harmful error in the agency’s

application of the substantial evidence burden of proof in the removal decision, if

any argument or evidence adduced on remand affects the administrative judge’s

7

Substantial evidence is the degree of relevant evidence a reasonable person,

considering the record as a whole, might accept as adequate to support a conclusion,

even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p).

8

Preponderant evidence is that degree of relevant evidence a reasonable person,

considering the record as a whole, would accept as sufficient to find a contested fact is

more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

9

The Federal Circuit issued Rodriguez on August 12, 2021, following the submission of

the appellant’s petition for review, but prior to the submission of both the agency’s

response and the appellant’s reply thereto. PFR File, Tabs 1, 3-4. Neither party

addressed Rodriguez in its final filing.

7

analysis of the appellant’s affirmative defenses or the agency’s penalty, she

should address such argument or evidence in the remand initial decision. See

Semenov, 2023 MSPB 16, ¶ 25.

On remand, the administrative judge should allow the parties an opportunity to

present evidence and argument regarding whether the agency considered the

Douglas factors in determining the penalty.

In Connor v. Department of Veterans Affairs, 8 F.4th 1319, 1325-26 (Fed.

Cir. 2021), which was also issued subsequent to the initial decision, the Federal

Circuit found that the Board must consider and apply the factors set forth in

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), in its review

of an agency’s penalty selection under an action taken pursuant to 38 U.S.C.

§ 714. The Federal Circuit found that, although section 714 precludes the Board

from mitigating the agency’s chosen penalty, “[i]t does not alter the penalty

review with respect to the Douglas factors,” id. at 1326, and that, although the

Board cannot mitigate the penalty, “if the Board determines that the [agency]

failed to consider the Douglas factors or that the chosen penalty is unreasonable,

the Board must remand to the [agency] for a redetermination of the penalty,” id.

at 1326-27 (citing Brenner v. Department of Veterans Affairs, 990 F.3d 1313,

1325 (Fed. Cir. 2021) (explaining that “if the [Board] concludes that the

[agency’s] removal decision is unsupported by substantial evidence, the [Board]

should remand to the [agency] for further proceedings”)). As we found with the

Rodriguez case, the Federal Circuit’s decision in Connor applies to all pending

cases, regardless of when the events at issue took place. See Semenov,

2023 MSPB 16, ¶¶ 22, 49-50.

Here, the administrative judge correctly relied on Sayers v. Department of

Veterans Affairs, 954 F.3d 1370, 1375 (Fed. Cir. 2020), for the proposition that

38 U.S.C. § 714 requires the Board to review for substantial evidence the entirety

of the agency’s adverse action decision, to include the penalty imposed. ID at 4,

14. However, although the administrative judge reasoned that the deciding

8

official had provided an affidavit wherein he discussed why he believed that

mitigation of the penalty was inappropriate, she did not mention the Douglas

factors. ID at 14. The decision letter was similarly devoid of any mention of the

Douglas factors and contained only a brief statement indicating that the deciding

official had concluded that the penalty of removal did “not exceed the bounds of

reasonableness.” IAF, Tab 6 at 18. In the written affidavit relied upon by the

administrative judge, the deciding official averred generally that he had

“considered mitigation of the penalty”; however, he did not discuss any specific

mitigating factors. IAF, Tab 22 at 20. Thus, the record is unclear as to whether

the agency properly considered the Douglas factors in deciding to remove the

appellant. Because the administrative judge did not have the benefit of some of

the Federal Circuit’s recent decisions regarding the Board’s obligation to review

the penalty in an action taken under section 714, she did not provide guidance to

the parties on the penalty issue. On remand, she should permit the parties to

submit additional evidence and argument regarding the same. In reviewing the

penalty, the administrative judge should determine whether the agency proved by

substantial evidence that it properly applied the Douglas factors and whether the

agency’s penalty selection was reasonable and, if not, she should remand the

appellant’s removal to the agency for a new decision on the appropriate penalty.

See Connor, 8 F.4th at 1326-27.

9

ORDER

For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order. 10

FOR THE BOARD: ________________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

10

In the remand initial decision, the administrative judge may reincorporate prior

findings as appropriate, consistent with this Remand Order.