UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LILLIAN A. FERRARO,

Appellant,

v. 

DEPARTMENT OF THE ARMY,

Agency. 

DOCKET NUMBER

DA-315H-15-0364-I-1

DATE: January 28, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL*

Lillian A. Ferraro, Deerfield Beach, Florida, pro se. 

Donald T. Stevens, Esquire, Fort Sill, Oklahoma, 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 of her termination during the probationary period for lack of 

Board 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 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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, 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). 

BACKGROUND

¶2 On November 3, 2014, the appellant was appointed to the competitive 

service position of Dental Hygienist, GS-0682-07, subject to completion of a 

1-year probationary period. Initial Appeal File (IAF), Tab 13 at 6. She was 

terminated effective April 10, 2015, on grounds that she “failed to demonstrate 

fitness for continued employment.” Id. at 9; IAF, Tab 1 at 9. On appeal, the 

administrative judge granted the agency’s motion to dismiss, finding that the 

appellant did not meet the definition of “employee” set forth in 5 U.S.C. 

§ 7511(a)(1), and that she had not alleged that her termination was based on 

partisan political reasons or marital status discrimination. IAF, Tab 17, Initial 

Decision (ID). She filed this petition for review. Petition for Review (PFR) File, 

Tab 1. 

ANALYSIS

¶3 On review, the appellant argues that she was discriminated against on the 

basis of race, age, and national origin and retaliated against her when her 

supervisor allowed younger colleagues, who were Latino, to harass and bully her. 
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PFR File, Tab 1 at 2-4, 7-8, 11-13. The appellant asserts that the agency 

would not tell her why she was being terminated and refused to supply her with 

any documentation regarding her termination or pretermination counseling. Id.

at 2-3, 12-13. She asserts that the agency did not give her a notice of proposed

termination and an opportunity to respond before making the decision to 

terminate her. Id. at 6-9, 11. She also asserts that the agency denied her union 

representation, Employee Assistance Program counseling, and the opportunity to 

file an equal employment opportunity complaint. Id. at 3-5, 7-10. The appellant 

additionally argues that that the administrative judge failed to compel the agency

to submit any documents it held regarding her termination. Id. at 2, 5. 

¶4 The Board does not have jurisdiction over all matters involving a Federal 

employee that are allegedly unfair or incorrect. Johnson v. U.S. Postal 

Service, 67 M.S.P.R. 573, 577 (1995). Rather, the Board’s jurisdiction is limited 

to those matters over which it has been given jurisdiction by statute or 

regulation. Id. An appellant bears the burden of proving by preponderant

evidence that her appeal is within the Board’s jurisdiction. 5 C.F.R. 

§ 1201.56(b)(2)(i)(A). Generally, persons serving a probationary period do not 

meet that definition of “employee” and do not have a statutory right of appeal.

Mastriano v. Federal Aviation Administration, 714 F.2d 1152, 1155 (Fed. Cir. 

1983). For the Board to decide an adverse action appeal, a Federal employee 

must meet the definition of “employee” set forth in 5 U.S.C. § 7511(a)(1). In that 

statute, an “employee” is: 

(A) an individual in the competitive service—

(i) who is not serving a probationary or trial period under an 

initial appointment; or

(ii) who has completed 1 year of current continuous service under 

other than a temporary appointment limited to 1 year or less;

(B) a preference eligible in the excepted service who has completed 

1 year of current continuous service in the same or 

similar positions—
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(i) in an Executive agency; or

(ii) in the United States Postal Service or Postal Rate 

Commission; and 

(C) an individual in the excepted service (other than a 

preference eligible)—

(i) who is not serving a probationary or trial period under an 

initial appointment pending conversion to the competitive service; 

or

(ii) who has completed 2 years of current continuous service in 

the same or similar positions in an Executive agency under other 

than a temporary appointment limited to 2 years or less. 

5 U.S.C. § 7511(a)(1). The appellant was in the competitive service and serving a 

probationary period. IAF, Tab 13 at 6, 9; see 5 U.S.C. § 7511(a)(1)(A)(i). She 

has not alleged that she had completed 1 year of current continuous service under 

other than a temporary appointment limited to 1 year or less. See 5 U.S.C. 

§ 7511(a)(1)(A)(ii). She thus does not meet the statutory definition of employee. 

¶5 Probationers who do not meet the statutory definition of employee have a 

limited regulatory right of appeal. 5 C.F.R. § 315.806(a). The appellant was 

terminated for post-appointment reasons. IAF, Tab 1 at 9. Probationers 

terminated for post-appointment reasons are entitled to be notified in writing as to 

why they were separated and the effective date of the action. 5 C.F.R. 

§ 315.804(a). The applicable regulation, however, does not include a right to 

respond to a notice of termination. Id. Additionally, “[t]he information in the 

notice as to why the employee is being terminated shall, as a minimum, consist of 

the agency’s conclusions as to the inadequacies of his performance or 

conduct.” Id. Here, the notice explained that the appellant’s termination was 

“based on a pattern of unprofessionalism, discourteous, rude and inappropriate 

behavior” towards other staff members at the dental clinic. IAF, Tab 1 at 9. The 

notice she received thus was adequate. As a probationer terminated for postappointment reasons, the appellant’s appeal rights are limited to review of 

whether her termination was based on partisan political reasons or marital status
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discrimination. 5 C.F.R. § 315.806(a), (b). She has not alleged either of these 

reasons. Accordingly, although she has alleged other bases of discrimination, 

see, e.g., IAF, Tab 10 at 3, 5, the Board cannot hear such claims absent an 

otherwise appealable action, Wren v. Department of the Army, 2 M.S.P.R. 1, 2 

(1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). 

¶6 The record evidence is sufficient to show that the appellant did not meet the 

definition of employee set forth in 5 U.S.C. § 7511(a)(1). She was terminated for 

post-appointment reasons during her probationary period. The appellant was 

given an opportunity to allege facts that would allow her to her establish the 

Board’s jurisdiction under 5 C.F.R. § 315.806(a), (b). IAF, Tab 2 at 2-5. She 

did not do so. IAF, Tab 10; see IAF, Tab 15. Therefore, we will not disturb the 

initial decision. 

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

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 U.S. 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 U.S. 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.

______________________________

William D. Spencer

Clerk of the Board