                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LILLIAN A. FERRARO,                             DOCKET NUMBER
                    Appellant,                       DA-315H-15-0364-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: January 28, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Lillian A. Ferraro, Deerfield Beach, Florida, pro se.

           Donald T. Stevens, Esquire, Fort Sill, Oklahoma, 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 her appeal of her termination during the probationary period for lack of
     Board 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 regulation or the erroneous

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. 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).

                                     BACKGROUND
¶2        On November 3, 2014, the appellant was appointed to the competitive
     service position of Dental Hygienist, GS-0682-07, subject to completion of a
     1-year probationary period.    Initial Appeal File (IAF), Tab 13 at 6.    She was
     terminated effective April 10, 2015, on grounds that she “failed to demonstrate
     fitness for continued employment.” Id. at 9; IAF, Tab 1 at 9. On appeal, the
     administrative judge granted the agency’s motion to dismiss, finding that the
     appellant did not meet the definition of “employee” set forth in 5 U.S.C.
     § 7511(a)(1), and that she had not alleged that her termination was based on
     partisan political reasons or marital status discrimination. IAF, Tab 17, Initial
     Decision (ID). She filed this petition for review. Petition for Review (PFR) File,
     Tab 1.

                                        ANALYSIS
¶3        On review, the appellant argues that she was discriminated against on the
     basis of race, age, and national origin and retaliated against her when her
     supervisor allowed younger colleagues, who were Latino, to harass and bully her.
                                                                                     3

     PFR File, Tab 1 at 2-4, 7-8, 11-13.      The appellant asserts that the agency
     would not tell her why she was being terminated and refused to supply her with
     any documentation regarding her termination or pretermination counseling. Id.
     at 2-3, 12-13. She asserts that the agency did not give her a notice of proposed
     termination and an opportunity to respond before making the decision to
     terminate her. Id. at 6-9, 11. She also asserts that the agency denied her union
     representation, Employee Assistance Program counseling, and the opportunity to
     file an equal employment opportunity complaint. Id. at 3-5, 7-10. The appellant
     additionally argues that that the administrative judge failed to compel the agency
     to submit any documents it held regarding her termination. Id. at 2, 5.
¶4        The Board does not have jurisdiction over all matters involving a Federal
     employee that are allegedly unfair or incorrect.          Johnson v. U.S. Postal
     Service, 67 M.S.P.R. 573, 577 (1995). Rather, the Board’s jurisdiction is limited
     to those matters over which it has been given jurisdiction by statute or
     regulation.   Id.   An appellant bears the burden of proving by preponderant
     evidence that her appeal is within the Board’s jurisdiction.              5 C.F.R.
     § 1201.56(b)(2)(i)(A). Generally, persons serving a probationary period do not
     meet that definition of “employee” and do not have a statutory right of appeal.
     Mastriano v. Federal Aviation Administration, 714 F.2d 1152, 1155 (Fed. Cir.
     1983). For the Board to decide an adverse action appeal, a Federal employee
     must meet the definition of “employee” set forth in 5 U.S.C. § 7511(a)(1). In that
     statute, an “employee” is:
           (A) an individual in the competitive service—
              (i) who is not serving a probationary or trial period under an
              initial appointment; or
              (ii) who has completed 1 year of current continuous service under
              other than a temporary appointment limited to 1 year or less;
           (B) a preference eligible in the excepted service who has completed
           1 year of current continuous service in the same or
           similar positions—
                                                                                           4

              (i) in an Executive agency; or
              (ii) in the United States        Postal   Service    or   Postal     Rate
              Commission; and
           (C) an individual in       the   excepted     service    (other   than     a
           preference eligible)—
              (i) who is not serving a probationary or trial period under an
              initial appointment pending conversion to the competitive service;
              or
              (ii) who has completed 2 years of current continuous service in
              the same or similar positions in an Executive agency under other
              than a temporary appointment limited to 2 years or less.
     5 U.S.C. § 7511(a)(1). The appellant was in the competitive service and serving a
     probationary period. IAF, Tab 13 at 6, 9; see 5 U.S.C. § 7511(a)(1)(A)(i). She
     has not alleged that she had completed 1 year of current continuous service under
     other than a temporary appointment limited to 1 year or less.               See 5 U.S.C.
     § 7511(a)(1)(A)(ii). She thus does not meet the statutory definition of employee.
¶5        Probationers who do not meet the statutory definition of employee have a
     limited regulatory right of appeal.    5 C.F.R. § 315.806(a).      The appellant was
     terminated for post-appointment reasons.           IAF, Tab 1 at 9.         Probationers
     terminated for post-appointment reasons are entitled to be notified in writing as to
     why they were separated and the effective date of the action.                   5 C.F.R.
     § 315.804(a).   The applicable regulation, however, does not include a right to
     respond to a notice of termination. Id. Additionally, “[t]he information in the
     notice as to why the employee is being terminated shall, as a minimum, consist of
     the agency’s conclusions as to the inadequacies of his performance or
     conduct.” Id. Here, the notice explained that the appellant’s termination was
     “based on a pattern of unprofessionalism, discourteous, rude and inappropriate
     behavior” towards other staff members at the dental clinic. IAF, Tab 1 at 9. The
     notice she received thus was adequate.       As a probationer terminated for post-
     appointment reasons, the appellant’s appeal rights are limited to review of
     whether her termination was based on partisan political reasons or marital status
                                                                                       5

     discrimination. 5 C.F.R. § 315.806(a), (b). She has not alleged either of these
     reasons.   Accordingly, although she has alleged other bases of discrimination,
     see, e.g., IAF, Tab 10 at 3, 5, the Board cannot hear such claims absent an
     otherwise appealable action, Wren v. Department of the Army, 2 M.S.P.R. 1, 2
     (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
¶6         The record evidence is sufficient to show that the appellant did not meet the
     definition of employee set forth in 5 U.S.C. § 7511(a)(1). She was terminated for
     post-appointment reasons during her probationary period.        The appellant was
     given an opportunity to allege facts that would allow her to her establish the
     Board’s jurisdiction under 5 C.F.R. § 315.806(a), (b). IAF, Tab 2 at 2-5. She
     did not do so. IAF, Tab 10; see IAF, Tab 15. Therefore, we will not disturb the
     initial decision.

                         NOTICE TO THE APPELLANT REGARDING
                            YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the U.S. 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
                                                                                 6

title 5 of the U.S. 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 U.S. 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 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 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.
