# Nyerere Howell v. Department of Veterans Affairs

> Merit Systems Protection Board · May 26, 2026

URL: https://www.frixlaw.com/law-library/cases/11332369

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** May 26, 2026
- **Precedential status:** Unpublished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/11332369

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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
3

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).
4

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
5

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.
6

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
7

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
8

(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.
9

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11332369. Public record. Not legal advice.