UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MARJORIE L. PETRUCELLI,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

PH-3443-15-0005-I-1

DATE: April 8, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

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 * A nonprecedential order is one that the Board has determined does not add 

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 Parties may cite nonprecedential orders, 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).
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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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board