       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                   LEROY GAGE,
                     Petitioner,
                           v.
     MERIT SYSTEMS PROTECTION BOARD,
                Respondent,
                         AND

       UNITED STATES POSTAL SERVICE,
                 Intervenor.
              __________________________

                      2011-3219
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. CH0351100802-I-1.
               __________________________

                 Decided: May 9, 2012
              __________________________

   KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
GAGE   v. MSPB                                            2


    K. ELIZABETH WITWER, Attorney, Civil Division,
Commercial Litigation Branch, United States Department
of Justice, of Washington, DC, for intervenor. On the
brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and DEBORAH A. BYNUM,
Assistant Director, and MELISSA DEVINE, Trial Attorney.
               __________________________

   Before BRYSON, MAYER and REYNA, Circuit Judges.
PER CURIAM.
     Petitioner pro se, Leroy Gage, appeals the July 25,
2011 decision of the United States Merit Systems Protec-
tion Board (“MSPB” or “Board”) denying his petition for
review and adopting the initial decision of the administra-
tive judge (“AJ”) as the Board’s final decision. The AJ
dismissed Mr. Gage’s appeal because Mr. Gage failed to
make non-frivolous allegations that he was furloughed,
suspended without pay for more than 14 days, and/or
suffered a reduction in pay or grade. The AJ also dis-
missed Mr. Gage’s accompanying claims of discrimination
and reprisal for lack of jurisdiction. Because Mr. Gage
failed to make non-frivolous factual allegations in support
of his claims and to establish the Board’s jurisdiction over
his claims, we affirm.
                             I
    Mr. Gage began working for the United States Postal
Service (“USPS”) on December 11, 1993. For the period
relevant to this appeal, he worked as a T-6 letter carrier
technician, and his pay rate and grade remained un-
changed. Mr. Gage suffers from various medical condi-
tions that substantially limit his ability to walk and
therefore, to work as a letter carrier.
3                                             GAGE   v. MSPB


     On March 5, 2008, after a fitness-for-duty examina-
tion, a physician concluded that due to his medical condi-
tions, Mr. Gage was permanently restricted in the
following ways: he should not stand or walk for more than
one to two hours at a time, should climb only intermit-
tently, and should not lift more than 10 pounds. As a
result of these restrictions, the USPS reassigned Mr.
Gage to an unassigned regular city carrier technician
position effective May 24, 2008, because he was physically
unable to perform the full duties of his previous position.
Because of his health restrictions, the USPS sent Mr.
Gage home early during various pay periods in 2010.
    In July 2008, Mr. Gage filed a recurrence claim of a
2005 injury with the Office of Workers’ Compensation
Programs (“OWCP”). The OWCP denied Mr. Gage’s claim
because he presented no evidence connecting his current
medical condition with the 2005 injury. The USPS subse-
quently notified Mr. Gage that he was no longer entitled
to the benefits of a limited-duty employee, but that pur-
suant to Article 13 of the Collective Bargaining Agree-
ment (“CBA”) between the USPS and the National
Association of Letter Carriers, Mr. Gage could request
permanent reassignment to a light-duty or other position.
Mr. Gage refused to provide a written request for a light-
duty assignment.
     In response, Mr. Gage filed complaints with the Equal
Employment Opportunity Commission and in federal
district court. He also appealed to the MSPB on July 14,
2010. Specifically, he alleged that he had been involuntar-
ily furloughed and reassigned. 1 He further alleged dis-


    1   “‘Furlough’ means the placing of an employee in a
temporary status without duties and pay because of lack
of work or funds or other nondisciplinary reasons.” 5
U.S.C. § 7511(a)(5).
GAGE   v. MSPB                                           4


crimination on the basis of disability, gender, and age, as
well as retaliation for filing complaints relating to his
reassignment. Mr. Gage did not specify the dates of the
alleged furlough.
    The USPS argued, inter alia, that Mr. Gage failed to
make non-frivolous allegations in support of his claims
and that absent an appealable action, the Board lacked
jurisdiction over his discrimination and reprisal claims.
    On August 5, 2010, the AJ issued an Order to Show
Cause, notifying Mr. Gage that he bore the burden to
establish the Board’s jurisdiction over his claims by
preponderant evidence and that the AJ would dismiss his
case unless he made non-frivolous allegations of fact
sufficient to support his claims and vest the Board with
jurisdiction. Specifically, the AJ ordered Mr. Gage to
provide the dates of the alleged furlough or suspension
without pay and to make non-frivolous allegations of fact
to support any assertion of a reduction in pay rate or
grade. In his response to the Order to Show Cause, Mr.
Gage argued that “his absences were due to his apparent
temporary incapacitation as opposed to the unavailability
of work for a Letter Carrier Technician.” SA175.
    The AJ dismissed the case because Mr. Gage failed to
present non-frivolous allegations that he was furloughed
or suspended without pay for more than 14 days and did
not demonstrate that he was subject to a reduction in pay
or grade during the relevant period. The AJ also found
that the Board lacked jurisdiction over Mr. Gage’s related
discrimination and retaliation claims.
    Mr. Gage filed a petition for review with the full
Board. In addition to his original claims, Mr. Gage ar-
gued that he was erroneously denied a hearing before the
AJ and that the AJ failed to rule on his motion to compel
discovery. The Board denied Mr. Gage’s petition because
5                                              GAGE   v. MSPB


it found that there was no new previously unavailable
evidence and that the AJ had not committed an error of
law or regulation.
   This appeal followed. We have jurisdiction under 28
U.S.C. § 1295(a)(3).
                             II
     This Court shall hold unlawful and set aside any
Board action, findings, or conclusions found to be “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). Whether the Board has jurisdiction is a
question of law reviewed de novo. See Herman v. Dep’t of
Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999). As the
petitioner, Mr. Gage bears the burden of establishing the
Board’s jurisdiction by preponderant evidence. See 5
C.F.R. § 1201.56(a)(2); Lazaro v. Dep’t of Veterans Affairs,
666 F.3d 1316, 1318 (Fed. Cir. 2012).
    We conclude that the Board properly denied Mr.
Gage’s petition for review. The Board’s jurisdiction is
limited by statute. 5 U.S.C. § 7701(a). It may review an
adverse agency action, i.e., a reduction in pay or grade, a
removal, a suspension for more than 14 days, and a
furlough of 30 days or less. 5 U.S.C. § 7512(1)-(5).
    Mr. Gage did not make non-frivolous factual allega-
tions sufficient to support his claims and to vest the
Board with jurisdiction. Although the record reveals that
Mr. Gage was sent home early on several occasions in
2010, this was not due to a lack of work or funds or other
nondisciplinary reasons; rather, he appears to concede
that it resulted from his “temporary incapacitation,” i.e.,
the physical restrictions placed on Mr. Gage by his treat-
GAGE   v. MSPB                                          6


ing physician due to his medical conditions. SA175. His
absences due to medical disqualifications do not consti-
tute furlough. See Mitchell v. Dep’t of Transp., 109
M.S.P.R. 480, 484 (2008).
    To the extent Mr. Gage alleges that he was construc-
tively suspended without pay for more than 14 days, he
cannot satisfy the specific numerical thresholds required
by 5 U.S.C. § 7512(2) without providing specific dates of
the alleged suspension. 2 The record on appeal reveals
non-consecutive days on which he was allegedly asked to
leave work early due to his medical-related restrictions.
“Neither the Board nor its reviewing court has ever
combined non-consecutive suspensions in order to reach
the jurisdictional threshold” in circumstances such as
these. Mitchell, 109 M.S.P.R. at 483 (holding that non-
consecutive suspensions of 14 days or less may not be
combined to establish a constructive suspension within
the Board’s jurisdiction absent evidence that the imposed
multiple suspensions of 14 days or less were an attempt to
prevent appellant from exercising his appeal rights).
    As to Mr. Gage’s second claim, an involuntary reas-
signment without a reduction in pay or grade is not ap-
pealable to the MSPB, even if the reassignment results in
a reduction of work hours. See Wood v. Merit Sys. Prot.
Bd., 938 F.2d 1280, 1282 (Fed. Cir. 1991). Mr. Gage has
not demonstrated that he suffered a reduction in pay or
grade throughout the relevant period.
    Mr. Gage’s discrimination and retaliation allegations
do not constitute independent bases for Board jurisdic-
tion. See Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1245

   2    To the extent Mr. Gage argues on appeal that he
was furloughed from January 1, 2010, through February
16, 2010, the record on appeal does not appear to corrobo-
rate his claim.
7                                             GAGE   v. MSPB


(Fed. Cir. 1991) (en banc). Therefore, because Mr. Gage’s
furlough and involuntary reassignment claims did not
constitute appealable actions, the Board lacked jurisdic-
tion over his related discrimination and retaliation
claims.
    As to the Board’s refusal to grant Mr. Gage a hearing,
the Board did not err because “there is no statutory
requirement that the Board hold a hearing on the thresh-
old issue of jurisdiction.” See Campion v. Merit Sys. Prot.
Bd., 326 F.3d 1210, 1215 (Fed. Cir. 2003).
     To the extent Mr. Gage challenges the AJ’s failure to
rule on his motion to compel, we uphold the Board’s
determination that the AJ’s failure did not prejudice Mr.
Gage’s substantive rights because the motion was un-
timely. A motion for an order to compel discovery must be
filed with the AJ within 10 days of the date of service of
objections. See 5 C.F.R. § 1201.21; 5 C.F.R. § 1201.23; 5
C.F.R. § 1201.73(f)(4). The agency responded to Mr.
Gage’s initial request for discovery on September 8, 2010,
objecting generally to answering the interrogatories and
requests for production but responding to the requests for
admissions. Because Mr. Gage found the agency’s re-
sponses to be insufficient, he filed a motion to compel on
September 27, 2010, a date beyond the applicable time
limit for such a motion.
    Finally, the Board did not err in rejecting Mr. Gage’s
submission of documents not part of the record before the
AJ because the documents were not unavailable during
the AJ proceedings and/or would not have altered the
outcome. See Avansino v. U.S. Postal Serv., 3 M.S.P.R.
211, 214 (1980).
    We have considered Mr. Gage’s additional arguments
made on appeal and find that they provide no basis for
relief. For the foregoing reasons, we affirm.
GAGE   v. MSPB                         8


                      AFFIRMED
                          COSTS
Each party shall bear its own costs.
