                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RHONDA M. HARRELLE,                             DOCKET NUMBER
                  Appellant,                         DC-315H-15-0425-I-1

                  v.

     PEACE CORPS,                                    DATE: September 14, 2015
                         Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Rhonda M. Harrelle, Arlington, Virginia, pro se.

           Charles Arthur Hobbie, Washington, D.C., 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 for 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
     regulation or the erroneous application of the law to the facts of the case; the

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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, 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 MODIFIED by our
     finding that the appellant was an excepted-service appointee who had not
     completed 2 years of current continuous service, we AFFIRM the initial decision.
¶2         In October 2014, the agency appointed the appellant to an excepted-service
     position as a part-time Medical Pre-Service Assistant. Initial Appeal File (IAF),
     Tab 17 at 23. She was appointed under the authority of section 7(a) of the Peace
     Corps Act of 1961. Id. In its welcome letter, the agency stated that the appellant
     was appointed to a position in the excepted service for a 60-month term and was
     subject to a 12-month trial period. 2 Id. at 24.        In February 2015, the agency
     issued a letter to the appellant stating that it was terminating her during her
     probationary period. Id. at 21-22.




     2
       There is conflicting evidence in the record as to whether the agency appointed her to a
     position in the excepted service for a term not to exceed 1 year, see IAF, Tab 17 at 23
     (Standard Form (SF) 50 indicating an appointment “NTE 10/18/15”), or to a longer
     indefinite appointment subject to a 12-month trial period, id. at 24 (letter confirming
     the appellant’s appointment to a 60-month appointment with a trial period ending
     October 19, 2015). To determine the nature of the appellant’s appointment, the Board
     does not simply consider the appellant’s SF-50, but instead looks to the totality of the
     circumstances. Scott v. Department of the Air Force, 113 M.S.P.R. 434, ¶ 8 (2010).
     Based upon the record as a whole, including the vacancy announcement, welcome
     letter, SF-50s, and termination letter, we find that the agency appointed the appellant to
     a position in the excepted service for a term of 60 months subject to a 12-month trial
     period. See IAF, Tab 17 at 17, 23, 24, 29.
                                                                                           3

¶3         The appellant filed this Board appeal challenging her termination.           IAF,
     Tab 1. The administrative judge issued an acknowledgment order that informed
     the appellant that the Board may not have jurisdiction over her appeal because
     she had not completed her probationary period. IAF, Tab 2 at 3-5. The appellant
     responded, asserting that she was not a probationary employee because she had
     prior Federal service from 1982 to 2011.          See IAF, Tab 4 at 3, 7.     She also
     asserted that the agency discriminated against her based upon her age and
     appeared to assert a claim of discrimination based upon her race and color, id.
     at 4, and she requested various monetary damages, IAF, Tab 7 at 3. The agency
     responded, asserting, inter alia, that the Board did not have jurisdiction because
     the appellant was a member of the Foreign Service and a probationer.               IAF,
     Tab 18 at 9-14.
¶4         The administrative judge issued an initial decision dismissing the appeal for
     lack of jurisdiction. IAF, Tab 22, Initial Decision (ID). Specifically, he found
     that the Board lacked jurisdiction because the appellant was terminated from a
     probationary position in the Foreign Service. ID at 4.
¶5         The appellant has filed a timely petition for review. Petition for Review
     (PFR) File, Tab 1. She asserts, inter alia, that the agency discriminated against
     her, that she should be entitled to monetary damages, and that there were issues
     with her personnel file, leave, and thrift savings plan. Id. at 1-3. The agency has
     responded in opposition to the petition for review, PFR File, Tab 3, and the
     appellant has filed a reply, PFR File, Tab 5. 3
¶6         The Board’s jurisdiction is limited to those matters over which it has been
     given jurisdiction by law, rule, or regulation.           Maddox v. Merit Systems
     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985).                Employees covered


     3
       The appellant submits evidence with her petition for review and her reply. PFR File,
     Tab 1, Tab 5. We do not consider this evidence because the appellant has not shown
     that it is new and material evidence not previously available despite her due diligence.
     Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d).
                                                                                             4

     under 5 U.S.C. § 7511 and 5 U.S.C. § 4301 may appeal certain adverse actions to
     the Board. However, members of the Foreign Service are specifically excluded
     from      the    definition    of   “employee”       for   purposes   of   Board    appeal
     rights.     5 U.S.C. §§ 4301(b)(2)(6), 7511(b)(6); see Ang v. Department of
     State, 103 M.S.P.R. 324, ¶ 6 (2006).
¶7          We agree with the administrative judge that the Board does not have
     jurisdiction over this appeal because the appellant was a member of the Foreign
     Service. See ID at 4. It is undisputed that the appellant was appointed under the
     authority of the Peace Corps Act of 1961, codified in pertinent part
     at 22 U.S.C. § 2506(a)(2), see IAF, Tab 1 at 18, which authorizes the President to
     utilize the authority of the Foreign Service Act (FSA) to carry out the functions
     of the Peace Corps. 4          According to the Peace Corps Manual, “Peace Corps
     employees . . . are appointed members of the Foreign Service using authority
     contained in section 7(a)(2) of the Peace Corps Act and section 303 of the
     Foreign Service Act of 1980.” 5 Peace Corps Manual, MS 601.2.2, available
     at http://www.peacecorps.gov/about/policies/docs/manual (last visited August 18,
     2015).      We     therefore     find   that   the    appellant,   who     was   appointed
     under 22 U.S.C. § 2506(a)(2), was a member of the Foreign Service as defined
     under 5 U.S.C. §§ 4301(2)(b) and 7511(b)(6), and that she therefore cannot
     challenge her termination before the Board under chapters 43 or 75. See Ang, 103
     M.S.P.R. 324, ¶ 9.
¶8          Even if the appellant were not excluded from title 5 Board appeal rights by
     virtue of being a member of the Foreign Service, the Board still would not have
     jurisdiction over her appeal because she does not otherwise meet the definition of



     4
      The President has delegated this authority to the Director of the Peace Corps. Exec.
     Order No. 12137, 44 Fed. Reg. 29023 (May 16, 1979).
     5
      The FSA provides for a separate forum for appealing personnel actions. 22 U.S.C.
     §§ 4131-4140.
                                                                                              5

     “employee” under 5 U.S.C. § 7511(a)(1)(C). 6               To meet the definition of
     “employee”     under    title   5   for   purposes    of    Board   appeal    rights,    a
     nonpreference-eligible, excepted-service appointee, such as the appellant:              (1)
     must not be serving a probationary or trial period under an initial appointment
     pending conversion to the competitive service; or (2) must have 2 years of current
     continuous         service          in       the           same        or        similar
     positions. 5 U.S.C. § 7511(a)(1)(C)(i)-(ii); see Ramirez-Evans v. Department of
     Veterans Affairs, 113 M.S.P.R. 297, ¶ 9 (2010). The appellant was not serving
     under an appointment pending conversion to the competitive service, and thus the
     first definition does not apply to her.      Specifically, in its welcome letter, the
     agency stated that the appellant was being appointed to a 60-month appointment
     in the excepted service. IAF, Tab 1 at 31. We also find that the appellant did not
     have 2 years of current continuous service at the time of her termination. She
     was appointed in October 2014 and terminated in February 2015. IAF, Tab 17 at
     17, 23. Although she had prior Federal service between 1982 and 2011, see IAF,
     Tab 4 at 7-8, current continuous service requires service immediately prior to the
     action at issue without a break in service of a work day, Yeressian v. Department
     of the Army, 112 M.S.P.R. 21, ¶ 10 (2009).
¶9         Absent an otherwise appealable action, the Board does not have jurisdiction
     over the appellant’s discrimination claims.          See 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).
     Regarding the appellant’s claim for monetary damages, the Board has no

     6
       Although the agency informed the appellant that her appointment was subject to a trial
     period, IAF, Tab 17 at 23-24, it indicated in its termination notice that she was serving
     a probationary period, id. at 21-22. The administrative judge referred to the appellant
     as a probationary employee in the acknowledgment order, IAF, Tab 2 at 3, and the
     initial decision, ID at 4. The term “probationary period” refers to the first year of
     service of most employees who are given career or career-conditional appointments in
     the competitive service. See Calixto v. Department of Defense, 120 M.S.P.R. 557, ¶ 14
     (2014); see also 5 C.F.R. § 315.801. We therefore modify the initial decision to clarify
     that the appellant, who was appointed in the excepted service, was not serving a
     probationary period.
                                                                                  6

authority to award such damages absent a determination that an adverse action
within its jurisdiction was taken because of discrimination or because of the
appellant’s protected whistleblowing activities. See Bullock v. Department of the
Air Force, 93 M.S.P.R. 217, ¶ 9 (2003).         Lastly, we find no basis to exercise
jurisdiction over the appellant’s remaining claims regarding her personnel file,
leave, and benefits.

                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
      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 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
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
                                                                                  7

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
United States 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.
