                       NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                         is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit
                                           05-3196

                                  ANLANDO McMILLIAN,

                                                                       Petitioner,

                                              v.

                          UNITED STATES POSTAL SERVICE,

                                                                       Respondent.

                           ___________________________

                           DECIDED: February 21, 2006
                           ___________________________


Before SCHALL, GAJARSA, and DYK, Circuit Judges.

PER CURIAM.


      Petitioner Anlando McMillian (“McMillian”) petitions for review of the final decision

of the Merit Systems Protection Board (“Board”), dismissing McMillian’s constructive

suspension and discrimination claims for want of jurisdiction. We affirm.

                                    BACKGROUND

       McMillian suffered an on-the-job injury on July 29, 2002, while employed by the

United States Postal Service (“USPS”) as a Letter Carrier in Mobile, Alabama, and

accepted a limited-duty position with USPS on August 15, 2002. On November 1, 2002,

McMillian’s physician advised USPS that McMillian’s on-the-job injury was resolved, but

that his physical capabilities remained limited due to non-work related physical

problems.   On November 4, 2002, USPS discontinued McMillian’s specially-created

limited-duty position because his job-related injury was resolved and placed him on
leave status until he requested a light duty assignment to accommodate his ongoing

medical restrictions.    On November 18, 2002, McMillian requested a light-duty

assignment citing his continuing physical limitations. USPS denied McMillian’s request

on the ground that no light-duty assignments fitting McMillian’s physical restrictions

were available in Mobile. McMillian did not return to work until April 10, 2003.    [ja12-

13]

        McMillian appealed to the Board, alleging that USPS’s denial of his light-duty

request constituted race, sex, or disability discrimination and a constructive suspension

from November 3, 2002, the day McMillian’s leave status began, through April 10, 2003,

the day he returned to work. After an evidentiary hearing, the Administrative Judge

dismissed the constructive suspension claim on the merits because the USPS proved

that there were no available light duty positions that could accommodate McMillian’s

physical restrictions in the Mobile area, which is sufficient to defeat a constructive

suspension claim under Baker v. U.S. Postal Serv., 71 M.SP.R. 680, 692-93 (1996).

[ja15-16] The Administrative Judge also rejected McMillian’s discrimination claim on

the merits. [ja16-17] The full Board denied McMillian’s petition for review, but reopened

the appeal and changed the disposition of all McMillian’s claims to a dismissal for lack of

jurisdiction because McMillian failed to prove by preponderant evidence that he was

constructively suspended. [ja5,7] The Board’s decision became final on March 28,

2005.

        McMillian timely appealed to this court, and we have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).




05-3196                                    2
                                      DISCUSSION

         The Board’s decision must be affirmed unless found to be arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law; obtained without

procedures required by law, rule or regulation; or unsupported by substantial evidence.

5 U.S.C. § 7703(c); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998).

         In constructive adverse action appeals, we have recently held that non-frivolous

allegations are insufficient to establish the Board’s jurisdiction. Rather, the employee

must establish the Board’s jurisdiction by preponderant evidence. Garcia v. Dep’t of

Homeland Sec., No. 04-3342, slip op. at 38 (Fed. Cir. 2006) (en banc); 5 U.S.C. §

7701(a) (2000); 5 C.F.R. § 1201.56 (2005).         The Board lacks jurisdiction over a

discrimination claim except where it is accompanied by an adverse action claim over

which the Board does have jurisdiction. 5 U.S.C. § 7702(a)(1); Garcia, No. 04-3342,

slip op. at 36; Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1245 (Fed. Cir. 1991) (en

banc).

         McMillian argues that the Administrative Judge ignored evidence in concluding

that a constructive suspension had not been established by a preponderance of the

evidence. However, we conclude that the Board’s determination that there were no

available light-duty assignments consistent with McMillian’s physical restrictions is

supported by substantial evidence. Thus, the Board did not err in concluding that there

was no constructive suspension.

         McMillian also insists that the Administrative Judge improperly excluded certain

witnesses that would have testified that light-duty assignments were available. The

Administrative Judge excluded McMillian’s request to put on these witnesses because




05-3196                                     3
they “were not privy to the appellant’s physical limitations or the limitations of others

who may have been on light or limited duty.” App. at 16 n.8. We conclude that the

Administrative Judge’s exclusion of these witnesses, on the ground that they lacked

personal knowledge germane to the subject matter of the appeal, [ja16] was not an

abuse of discretion. “Procedural [decisions] relative to discovery and evidentiary issues

fall within the sound discretion of the board and its officials,” and will only be overturned

where “an abuse of discretion is clear and is harmful.” Curtin v. Office of Pers. Mgmt.,

846 F.2d 1373, 1378 (Fed. Cir. 1988).

       Under our en banc decision in Garcia, the Board correctly concluded that it

lacked jurisdiction over McMillian’s constructive suspension claim, and thus also lacked

jurisdiction over McMillian’s discrimination claim.

       No costs.




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