UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ALICE S. DAROSA,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

AT-315H-16-0116-I-1

DATE: September 13, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board