                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LUZ M. ANZUETO,                                 DOCKET NUMBER
                  Appellant,                         DC-3443-15-0705-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: October 6, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Luz M. Anzueto, Jessup, Maryland, pro se.

           Stephanie Sneed, Bethesda, Maryland, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2        On May 7, 2015, the appellant filed an appeal alleging that the agency
     improperly charged her with 29 hours of absence without leave (AWOL) in
     November 2014.      Initial Appeal File (IAF), Tab 1.     In addition, she accused
     agency officials of subjecting her to a hostile work environment and retaliating
     against her for a reasonable accommodation request. Id. She indicated that she
     had filed a grievance contesting her placement in an AWOL status and received a
     decision on her grievance on April 22, 2015. Id. In support of her appeal, she
     attached a number of documents, including portions of a PowerPoint presentation
     concerning AWOL, an agency policy statement regarding time and attendance,
     various medical notes, a leave request form, a reasonable accommodation request
     form, the agency’s November 2014 letter informing her of her placement in an
     AWOL status, and documents concerning her grievance. Id.
¶3        Because it appeared that the Board might not have jurisdiction over the
     appeal, the administrative judge issued a detailed order informing the appellant of
     her burden of proof on jurisdiction and directing her to submit evidence and
     argument on the issue. IAF, Tab 3. In her response, 2 the appellant reiterated the
     claims that she had raised in her initial appeal and filed duplicate copies of the
     2
       Contrary to the agency’s assertions, the postmark date indicates that the appellant
     timely filed her response on May 23, 2015. See IAF, Tab 4.
                                                                                       3

     documents she previously submitted with her appeal form.         IAF, Tab 4.    She
     acknowledged that her appeal “might be out of jurisdiction,” but did not
     otherwise address the issue. Id. at 2.
¶4         Based on the written record, the administrative judge issued a decision
     dismissing the appeal for lack of jurisdiction. IAF, Tab 8, Initial Decision. He
     noted that there also were questions as to whether the appeal was timely filed or
     precluded by her previous election to file a grievance of the same action, but he
     did not decide those issues. See id.
¶5         The appellant filed a timely petition for review. Petition for Review (PFR)
     File, Tab 1. She again contests the merits of her placement on AWOL, arguing
     that the agency improperly denied her sick leave and ignored her request for
     reasonable accommodation. Id. She contends that her filing of a grievance is
     “[t]he only reason [she] might be disqualified,” and that she was not aware of her
     Board appeal rights at the time. Id. The agency has filed a response, in which it
     argues that the appellant’s petition does not meet the criteria for review. PFR
     File, Tab 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). Generally, the appellant has the burden
     of proving by a preponderance of the evidence that the Board has jurisdiction
     over an appeal. See 5 C.F.R. § 1201.56(a)(2). In most cases, an appellant is
     entitled to a jurisdictional hearing only if she makes nonfrivolous allegations that
     the Board has jurisdiction over her appeal.      See Yiying Liu v. Department of
     Agriculture, 106 M.S.P.R. 178, ¶ 8 (2007).            Nonfrivolous allegations of
     jurisdiction are allegations of fact that, if proven, could establish that the Board
     has jurisdiction over the appeal. Id. Mere pro forma alegations, howevever, are
     insufficient to satisfy this nonfrivolous standard. Id.
¶7         The Board generally has jurisdiction to review an appeal from a removal, a
     suspension of more than 14 days, a reduction in grade or pay, or a furlough of
                                                                                 4

less than 30 days. 5 U.S.C. § 7512. Placement in an AWOL status is not by itself
an appealable matter. Marks v. Department of the Air Force, 2 M.S.P.R. 494, 495
(1980). Under some circumstances, though, placement in an AWOL status may
constitute an appealable suspension.    See Bucci v. Department of Education,
36 M.S.P.R. 489, 491 (1988); overruled in part on other grounds by Abbott v.
U.S. Postal Service, 121 M.S.P.R. 294 (2014). Suspensions of 14 days or less are
not appealable, however, see Oates v. U.S. Postal Service, 49 M.S.P.R. 571, 573
(1991), and the appellant was in an AWOL status for a total of only 29 hours. In
the absence of an otherwise appealable action, the Board has no jurisdiction to
consider the appellant’s claims that the agency subjected her to her a hostile work
environment or retaliated against her for requesting reasonable accommodation.
See Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012). Moreover, the
appellant has not made allegations that could establish another basis for
jurisdiction, such as retaliation for whistleblowing activity or discrimination
based on military status. Accordingly, we conclude that the appellant failed to
make a nonfrivolous allegation of jurisdiction and that the administrative judge
properly dismissed the appeal without a hearing.

                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
                                                                                      5

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
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.
