# Ricardo Wilson v. Department of Veterans Affairs

> Merit Systems Protection Board · April 25, 2024

URL: https://www.frixlaw.com/law-library/cases/9963925

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** April 25, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9963925

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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THIS ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9963925. Public record. Not legal advice.