                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ALICE S. DAROSA,                                DOCKET NUMBER
                   Appellant,                        AT-315H-16-0116-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: September 13, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Mary Bonnie Grant, Columbia, South Carolina, for the appellant.

           Edith W. Lewis, Columbia, South Carolina, 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 termination 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.             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 and
     AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).

                            DISCUSSION OF ARGUMENTS ON REVIEW
¶2             The agency appointed the appellant to the excepted-service position of
     Medical Support Assistant, GS-05, effective November 2, 2014, subject to a
     1‑year trial period.       Initial Appeal File (IAF), Tab 7 at 5, 8-10.     Prior to the
     completion of her trial period, the agency terminated the appellant, effective
     October 23, 2015, due to disrespectful conduct towards a patient. Id. at 7, 11-13.
     The appellant filed a Board appeal and requested a hearing. IAF, Tab 1. In his
     jurisdictional order, the administrative judge provided the appellant with notice of
     the elements and burdens of establishing jurisdiction over her appeal. 2             IAF,
     Tab 3. The appellant filed a response, and, after the administrative judge issued a
     second order, the agency also responded. IAF, Tabs 5-7.

     2
       Although the appellant was a preference eligible appointed to the excepted service, the
     jurisdictional order provided notice applicable to individuals in the competitive service.
     IAF, Tab 3. The initial decision cured the defective notice, however, by correctly
     informing the appellant of what she must do to establish jurisdiction as a
     preference-eligible “employee” in the excepted service and affording her an opportunity
     to establish jurisdiction on review. IAF, Tab 8, Initial Decision (ID) at 3-6; Parker v.
     Department of Housing & Urban Development, 106 M.S.P.R. 329, ¶ 8 (2007).
                                                                                             3

¶3         In an initial decision based on the written record, the administrative judge
     dismissed the appeal for lack of jurisdiction. IAF, Tab 8, Initial Decision (ID).
     Specifically, he found that the appellant failed to nonfrivolously allege that she
     was   an   “employee”     with    appeal   rights   to   the   Board    under   5 U.S.C.
     § 7511(a)(1)(B) because, as a preference eligible in the excepted service, she was
     required to have completed 1 year of current continuous service in the same or
     similar positions, but failed to show that she had done so. ID at 6.
¶4         The appellant filed a petition for review of the initial decision in which she
     argues that she completed her trial period during her prior service with the
     Department of Defense. Petition for Review (PFR) File, Tab 1. The appellant
     also sought review from the Equal Employment Opportunity Commission (EEOC)
     following the issuance of the initial decision in this matter.          Pursuant to the
     appellant’s March 31, 2016 petition before it, the EEOC submitted a decision in
     which it dismissed the appellant’s complaint for lack of jurisdiction, finding
     “little point in continuing to view the matter as a ‘mixed case’ as defined by
     29 C.F.R. § 1614.302(c)(2)(i), because the MSPB did not address any matter
     within the Commission’s jurisdiction.” PFR File, Tab 3 at 2. In that regard, the
     appellant argues that “[b]y erroneously giving [her] appeal rights through the
     MSPB, the appellant could have filed with the EEOC for discrimination based on
     her disability as a veteran.” 3 PFR File, Tab 1 at 2. The agency did not respond.


     3
       Although the appellant identified herself as a preference eligible, she did not argue or
     even imply in her appeal below that the agency’s action was discriminatory on the basis
     of her status as a veteran. If the appellant believes that is the case, there is no time
     limit for filing a direct appeal under the Uniformed Services Employment and
     Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA).
     Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 9 n.1 (2012). Nevertheless, we
     decline to forward the appeal to the Board’s regional office for docketing as a USERRA
     appeal because, when an appellant raises a claim of disability discrimination based on
     an injury incurred during military service, the fact that she incurred the injury during
     military service is incidental to her claim of disability discrimination and does not make
     her claim a USERRA claim. Hanson v. U.S. Postal Service, 110 M.S.P.R. 624,
     ¶ 9 (2009).
                                                                                      4

¶5        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). An individual who meets the
     definition of “employee” at 5 U.S.C. § 7511(a)(1) generally has the right to
     challenge her removal from the Federal service by filing an appeal with the
     Board.   Maibaum v. Department of Veterans Affairs, 116 M.S.P.R. 234, ¶ 9
     (2011); see 5 U.S.C. §§ 7512(1), 7513(d). The definition of “employee” includes
     “a preference eligible in the excepted service who has completed 1 year of current
     continuous service in the same or similar positions” in an Executive agency.
     5 U.S.C. § 7511(a)(1)(B)(i).
¶6        As the administrative judge correctly determined, the appellant has not
     satisfied the statutory requirements for showing that she is an “employee” with
     appeal rights to the Board. ID at 6. Nor does the record reflect that the appellant
     had prior service that could be used to tack on to meet the “current continuous
     service” requirement. The administrative judge correctly found that, because the
     appellant had a break in service from November 13, 2011, to October 23, 2015,
     she could not meet the current continuous service requirement.          ID at 4-7.
     Because she lacks 1 year of current continuous service in the same or similar
     positions, the appellant is not an “employee” under 5 U.S.C. § 7511(a)(1)(B), and
     the Board therefore lacks jurisdiction over her appeal. Allen v. Department of the
     Navy, 102 M.S.P.R. 302, ¶ 9 (2006).

                     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
                                                                                  5

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    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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
