Nyerere Howell v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NYERERE HOWELL, DOCKET NUMBER

Appellant, AT-0752-24-0775-I-1

v.

DEPARTMENT OF VETERANS DATE: May 26, 2026

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Raymond Mitchell , Columbia, South Carolina, for the appellant.

Tsopei Robinson , Esquire, West Palm Beach, Florida, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff, II, Member

FINAL ORDER

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

sustained the agency’s chapter 75 removal action. Generally, we grant petitions

such as this one only in the following circumstances: the initial decision contains

erroneous findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

The appellant challenges the administrative judge’s conclusion that the

agency proved its charge of sexual harassment. Petition for Review (PFR) File,

Tab 1. We have considered all of the appellant’s assertions in this regard but find

them unpersuasive. For example, the appellant makes several allegations

regarding witnesses who testified against him, and he avers that these witnesses

were not credible; however, we find that the appellant’s unsupported assertions

do not provide a basis to disturb the administrative judge’s explained findings,

which were based, in part, on credibility determinations. Id. at 5-7; Initial Appeal

File (IAF), Tab 24, Initial Decision (ID) at 3-10; see Haebe v. Department of

Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (explaining that the Board must

defer to an administrative judge’s credibility determinations when they are based,

explicitly or implicitly, on observing the demeanor of witnesses testifying at a

hearing); see also Tines v. Department of the Air Force , 56 M.S.P.R. 90, 92

(1992) (stating that a petition for review must contain sufficient specificity to

enable the Board to ascertain whether there is a serious evidentiary challenge).

The appellant asserts that he worked for the agency for over 20 years and

had no prior conduct issues. PFR File, Tab 1 at 5. To the extent he is arguing

that the penalty of removal was unreasonable under the circumstances, we find

his argument unpersuasive. Id. Here, the administrative judge applied the proper

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legal standard and reasonably concluded that the agency’s selected penalty of

removal was not unwarranted under the circumstances and was within the

tolerable bounds of reasonableness. ID at 12-13; see Payne v. U.S. Postal

Service, 72 M.S.P.R. 646, 650 (1996) (explaining that when the agency’s charge

is sustained but not all of the underlying specifications are sustained, the

agency’s penalty is entitled to deference and should only be reviewed to

determine whether it is within the parameters of reasonableness). Thus, we

discern no basis to disturb the initial decision. 2

The appellant argues that both the proposing official and the deciding

official engaged in sexual harassment and/or misconduct but were not disciplined.

PFR File, Tab 1 at 6-7. He avers that the deciding official was charged with

sexual harassment twice but was not disciplined. Id. at 6. These unsupported

assertions, however, do not warrant a different outcome. See Tines, 56 M.S.P.R.

at 92. The appellant more specifically alleges that, at the hearing, he attempted to

ask the deciding official “if he was ever charged” with sexual misconduct, but the

administrative judge “refused to want to hear his answer.” PFR File, Tab 1 at 6.

The hearing recording reflects that the administrative judge implicitly sustained

an objection based on relevance after the appellant’s representative asked the

deciding official if he had ever been accused of, not charged with, sexual

harassment. IAF, Tab 21-1, Hearing Recording (testimony of the deciding

official). The appellant’s representative thereafter asked the deciding official if

he had “ever been proposed allegations [sic] of sexual harassment.” to which the

deciding official responded, “The answer is no.” Id. The appellant’s

2

To the extent that the appellant asserts that the agency improperly relied on a prior

14-day suspension that was later reversed, we are unpersuaded. PFR File, Tab 1 at 4-5.

Indeed, the appellant does not provide a basis to disturb the administrative judge’s

finding that he presented no evidence to support his claim that his prior suspensions had

been rescinded. ID at 13; see Tines, 56 M.S.P.R. at 92; see also 5 C.F.R.

§ 1201.115(a)(2). In any event, even assuming that the appellant had no prior

discipline, we nonetheless find the penalty of removal appropriate for the sustained

misconduct. See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).

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representative thereafter changed the line of questioning. Id. Thus, the

appellant’s assertions regarding the hearing testimony are inaccurate. In any

event, the appellant did not object to the administrative judge’s rulings in this

regard. See Whitehurst v. Tennessee Valley Authority, 43 M.S.P.R. 486, 491

(1990) (explaining that a party is obligated to preserve for review its objections

and cannot wait until after the adjudication is complete to object for the first time

to an administrative judge’s hearing-related rulings). Thus, a different outcome is

not warranted.

The appellant avers that the agency retaliated against him for engaging in

protected activity and/or for his union activities. PFR File, Tab 1 at 4-5. We

decline to consider these claims. Here, the administrative judge issued an order

indicating that the sole affirmative defense raised by the appellant was harmful

procedural error. IAF, Tab 8 at 1. The administrative judge explained that, to the

extent the appellant sought to raise any additional affirmative defenses, he must

identify such claims with specificity in response to the order. Id. at 1 n.1. The

appellant’s response did not discernably identify any additional affirmative

defenses. IAF, Tab 11. Thereafter, the administrative judge issued an order

summarizing the parties’ prehearing conference again indicating that the only

affirmative defense at issue was harmful procedural error. IAF, Tab 18 at 1. The

appellant did not object to this order despite being provided an opportunity to do

so. Id. at 3. Accordingly, to the extent that the appellant attempts or has

attempted to raise any additional affirmative defenses in this matter, we decline to

consider the same. See Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶¶ 17-18

(setting forth a list of nonexhaustive factors for consideration in determining

whether an appellant will be deemed to have waived an affirmative defense).

Lastly, to the extent that the appellant asserts that the administrative

judge’s findings are indicative of bias against him, PFR File, Tab 1 at 7, we find

his assertion both unsubstantiated and unavailing, see Vaughn v. Department of

the Treasury, 119 M.S.P.R. 605, ¶ 18 (2013) (explaining that there is a

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presumption of honesty and integrity on the part of administrative judges that can

only be overcome by a substantial showing of personal bias and that the Board

will not infer bias based on an administrative judge’s case -related rulings).

We have considered all of the appellant’s remaining assertions; however,

we find them unpersuasive. Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

3

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

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within 60 calendar days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

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with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

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(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 4 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

4

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

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If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.