Marjorie L. Petrucelli v. Department of Veterans Affairs ( 2015 )

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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