The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEKIEWA RASBERRY, DOCKET NUMBER
Appellant, DC-0752-18-0681-I-1
v.
DEPARTMENT OF HEALTH AND DATE: February 7, 2024
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lekiewa Rasberry , Chicago, Illinois, pro se.
Susan Andorfer , Washington, D.C., for the agency.
Hollis E. Marken , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency action removing her for medical inability to perform the
duties of her position. On petition for review, the appellant argues that the
agency’s search for vacant, funded positions for which she qualified was
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
inadequate and contends that it should have offered her a hardship transfer. She
also challenges the administrative judge’s adjudication of her affirmative
defenses of discrimination and reprisal for engaging in protected equal
employment opportunity (EEO) activity. 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
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. Except as expressly
MODIFIED to consider the appellant’s EEO retaliation claim in light of our
recently issued decision in Pridgen v. Office of Management and Budget,
2022 MSPB 31, and to analyze the appellant’s claim that the agency erred in
failing to offer her a hardship transfer, we AFFIRM the initial decision.
Some of the protected activity underlying the appellant’s EEO retaliation
claim involved a formal discrimination complaint in which she raised, among
other claims, disability discrimination. Initial Appeal File (IAF), Tab 34 at 9.
While the administrative judge considered the appellant’s retaliation claim under
a “motivating factor” standard, the Board has recently held that, in addressing
retaliation claims under the Rehabilitation Act, the Board will instead apply a
more stringent “but-for” standard of causation. Pridgen, 2022 MSPB 31,
¶¶ 46-47. Nevertheless, we find that analyzing the appellant’s claim of retaliation
for filing a disability discrimination complaint under Pridgen does not require a
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different result. Having failed to meet the less stringent “motivating factor”
analysis, the appellant cannot meet the more stringent “but-for” analysis. Thus,
we affirm the administrative judge’s finding, as modified, to find that the
appellant did not prove that her protected Americans with Disabilities Act
Amendments Act of 2008 activity was the “but-for” cause of her demotion. Id.
The appellant argues on review that the agency should have given her a
hardship transfer under a new provision of the Master Labor Agreement (MLA). 2
Petition for Review (PFR) File, Tab 1 at 5-7. She testified that a 2017 update to
the MLA allowed for a hardship transfer for which she believed that she
qualified. October 19, 2018 Hearing Transcript (HT) at 147 (testimony of the
appellant). She further testified that because it was new, she was unsure of the
requirements for obtaining a hardship transfer and that she instead chose to ask
for a reasonable accommodation. HT at 154-55. Under questioning by the
appellant, her supervisor testified that she was unaware of hardship transfers
under the MLA and that no one suggested that approach to her. HT at 102-04
(testimony of the appellant’s supervisor). The appellant’s second-level
supervisor, ID at 2, testified that she had heard that there was such a thing as a
hardship transfer, but she did not know what it was or the process required for it,
HT at 132 (testimony of the appellant’s second-level supervisor). The Board will
enforce binding provisions of a collective bargaining agreement in the same
manner as it enforces agency regulations and will determine whether harmful
error occurred. Hall v. Department of the Navy, 73 M.S.P.R. 251, 255 (1997).
The administrative judge gave the appellant notice of her burden and an
opportunity to establish that the agency committed an error in the application of
its procedures that is likely to have caused it to reach a conclusion different than
2
Neither party filed a copy of the MLA to which the appellant refers, but the agency
asserted that she is covered by the collective bargaining agreement between the Centers
for Medicare and Medicaid Services and the American Federation of Government
Employees, Local 1923, AFL-CIO, and we presume this is the agreement at issue. IAF,
Tab 12 at 14.
4
the one it would have reached in the absence of the error. IAF, Tab 15 at 14; see
5 C.F.R. § 1201.4(r) (defining harmful error). However, she did not address the
appellant’s argument regarding the MLA in the initial decision. Although the
appellant questioned two witnesses about the availability of a hardship transfer,
she did not submit a copy of the MLA, or establish any relevant details
concerning the standards for granting a hardship transfer under the MLA. She
reraises the issue on review but still fails to provide a copy of the MLA or
provide any details concerning a hardship transfer under the MLA. PFR File,
Tab 1 at 5-6. Thus, even if the administrative judge erred in not addressing the
issue, because the appellant failed to establish the parameters of a hardship
transfer under the MLA, she could not establish that the agency erred in not
offering one to her or that it would have come to a different conclusion had it
done so. The administrative judge's procedural error is of no legal consequence
unless it is shown to have adversely affected a party’s substantive rights .
Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981).
Accordingly, we affirm the initial decision and deny the petition for
review.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
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.
5
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
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
6
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
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
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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
(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 you wish to challenge the Board’s rulings on your whistleblower claims
only, excluding all other issues , 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).
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 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.
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.