                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     MARJORIE L. PETRUCELLI,                         DOCKET NUMBER
                   Appellant,                        PH-3443-15-0005-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: April 8, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Marjorie L. Petrucelli, Cranston, Rhode Island, pro se.

           Kimberly Jacobs, Esquire, Newington, Connecticut, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed the appeal of lack of jurisdiction. Generally, we grant petitions such as
     this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     regulation or the erroneous application of the law to the facts of the case; the
     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. See 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, and based on the following points and authorities, 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).
¶2        The appellant filed an appeal alleging that the agency failed to
     accommodate her disability.     Initial Appeal File (IAF), Tab 1.      The agency
     responded, arguing that the Board does not have jurisdiction over the appeal.
     IAF, Tab 3, Subtab 1. The administrative judge found that the appellant had not
     established that she was subject to an otherwise appealable action, and dismissed
     the appeal for lack of jurisdiction. IAF, Tab 5, Initial Decision (ID). He also
     noted that the appellant has other avenues of redress, including filing an equal
     employment opportunity complaint and using the grievance process. ID at 3.
¶3        In her petition for review, the appellant argues that the agency should have
     allowed her to negotiate a reasonable accommodation schedule.          Petition for
     Review (PFR) File, Tab 1.      The appellant alleges, as she did below, that the
     agency is violating the mandatory Americans with Disabilities Act (ADA)
     accommodation process. See PFR File, Tab 3.
¶4        All of the appellant’s submissions in this appeal and on petition for review
     relate to whether the agency accommodated her disability. See IAF, Tab 4; PFR
     File, Tabs 1, 3, 5. On her initial appeal form, the appellant notated disability
     discrimination as best describing the action she was appealing. IAF, Tab 1. She
                                                                                  3

also checked boxes that identify actions that are appealable to the Board,
specifically negative suitability determinations and separations, demotions or
furloughs for more than 30 days by reduction in force. However, she made no
notations by the checked boxes and none of her submissions relate to any claim
other than disability discrimination.   See id.; IAF, Tab 4. Thus, we find that the
appellant’s only assertion before the Board is that the agency discriminated
against her on the basis of disability in violation of the ADA, and that she alleged
no otherwise appealable action.       It is well settled that, concerning claims of
discrimination on the basis of a disability, the Board lacks jurisdiction over such
claims per se in the absence of an otherwise appealable action. See Penna v. U.S.
Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012).       As a result, we find that the
administrative judge properly dismissed the appeal for lack of jurisdiction.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
                                                                                4

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
