N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ DANIEL THIBEAULT, Petitioner

v.

MERIT SYSTEMS PROTEC TION BOARD, Respondent

______________________

2014

- 3200

______________________ Petition for review of the Merit Systems Protection Board in No. SF

- 0752

- 13

- 0646 -I- 1.

______________________

Decided: May 7, 2015

______________________

D ANIEL T HIBEAULT , El Cajon, CA, pro se.

S TEPHEN F UNG , Office of the General Counsel, Merit Systems Protection Board, Washington DC, for respon dent. Also represented by B RYAN G. P OLISUK

.

______________________
Before O’M ALLEY , P LAGER , and T ARANTO , Circuit Judges.THIBEAULT v. MSPB 2

P ER C URIAM

. Daniel Thibeault appeals a final decision of the Merit Systems Protection Board (“the Board”) dismissing his appeal for lack of jurisdiction based on his inability to demonstrate that his decisions to take leave and retir e

w ere involuntary. Thibeault v. U.S. Postal Serv. , No. SF

0752

- 13

- 0646 -I- 1 (M .S.P.B. Aug. 13, 2014) (hereinafter, Final Decision ) (reproduced at Respondent’s Appendix (“RA”) 1

– 7)

. Because we agree with the Board that Thibeault has not established jurisdiction, we affirm

. B ACKGROUND

Th ibeault was a mail handler for the United States Postal Service (“USPS”) , who had operated mail pr ocessing machines before the USPS replaced these m achines in late 2012. Thibeault v. U.S. Postal Serv. , No. SF- 0752

- 13

- 0646 -I- 1 at 1

– 2 (M.S.P.B. Feb. 24, 201 4) (hereinafter, Initial Decision ) (reproduced at RA 8

– 21). Because these new machines were to be operated by mail

processing clerks, and not mail handlers, USPS informed Thibeault that his serv ic es as a mail handler were no longer required, and invited him to bid for a new assig nment. Id . at 2 . W hen Thibeault did not bid on a new assignment, USPS assigned him to a new shift

— from 8:0 0 p.m. to 4:30 a.m. Thibeault objected to this assignment, arguing that his psoriatic arthritis would be exacerbated by t he cold weather he would be exposed to while trave lling to and from work. He, thus, requested a reasonable accommodation in light of this disability

, asking to be returned to his original shift

— 4:00 p.m. to 12:30 a.m. When USPS did not grant this request , Thibeault used his sick leave beginning in January 2013 in order to avoid

wo rking the overnight shift. W hen his sick leave was exhausted in June 2013, he retired from USPS.
On July 5, 2013, Thibeault filed an action with the Board, contending that USPS had constructively su spended him from February to June 2013, and constru c-THIBEAULT v. MSPB 3

tively removed him from his position when he was forced
to re tire in June 2013. Id . at 6 . In the initial decision, the administrative judge (“AJ”) concluded that the Board did not h ave jurisdiction to consider Thibeault’s appeal. Id

. at 3, 16. As a general matter, the Board does not have jurisdi ction to review cases where an employee takes leave or retires , because it is presumed these actions are volu ntary

. Garcia v. Dep’t of Homeland Sec. , 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc); Justice v. Dep’t of Navy

, 89 M.S.P.R. 379, ¶ 5 (2001). Thus, in order to establish jurisdiction, a claimant must satisfy a two part test. First, a clai mant must make “non

- frivolous allegation s

. . . that, if proven, can establish the Board’s jurisdiction. ” Garcia , 437 F.3d at 1330. I f a claimant’s allegations meet this threshold, then a claimant is entitled to a hearing. Id

. at 1330, 1344

. “ At the hearing, the claimant must

prove jurisdiction by a preponderance of the evidence.” Id . at 1344; see 5 C.F.R. § 1201.56(b)(2)(i ) (“The appellant has the burden of proof, by a preponderance of the ev idence . . . with respect to: [i]ssues of jurisdiction

. . . . ”). If a claimant is able t o do so, only then may the Board consider the merits of the appeal. See Garcia , 437 F.3d at 1340. In this case, the AJ notified Thibeault that the Board might not have jurisdiction to consider his appeal, but Thibeault did not request a hearing. See I nitial Decision at 2. Accordingly, after both parties filed responses addressing the jurisdictional question, the AJ proceeded to determine whether Thibeault satisfied his burden to prove jurisdiction by a preponderance of the evidence (i.e., the step two inquiry reference above) based solely on the papers presented. Upon review, the AJ concluded that Thibeault did not satisfy his burden of establishing that his absence and his retirement were involuntary

.THIBEAULT v. MSPB 4

With respect to Thibeault’s claim that he was fo rced to use his sick leave because USPS decided to assign him to an unworkable overnight shift, the AJ determined that its decision to do so was not actionable

. Id . at 3. The AJ first noted that there was no evidence Thibeault had informed USPS he could not work an overnight shift prior to his re assignment. Id . at 4 . Under the agency’s colle ctive bargaining agreement (“CBA”), which governed Thibeault, USPS was allowed to assign Thibeault to any vacant duty assignment. Therefore, the AJ reasoned that th e initial decision to assign him to an overnight shift was not improper.
With respect to Thibeault’s request for reasonable a ccommodation after his reassignment

, the AJ explained that an agency is required to make a reasonable acco mmodation for the known physical and mental limitations of a disabled person unless doing so would cause undue hardship. Id . (citing 29 C.F.R. § 1630.9(a) )

. The AJ assumed that Thibeault had a disability that gave him the right to reasonable accommo dation s, even though his sensitivity to cold temperatures related to his commute and not his actual working conditions. Id . N onetheless, the AJ concluded that USPS wa s not required to reassign him to another post as a reasonable accommodation, because there we re no vacant positions to which Thibeault could have been reassigned. While there were part

- time, non

- career positions available between Jan uary and June 2013

, the CBA prohibited assigning a full

time employee , such as Thibeault, to a non

- career pos ition. Id . at 6 . Without any evidence that Thibeault would have accepted a voluntary demotion or that th ere was an exceptional circumstance which justi fied violating the CBA, the AJ found that Thibeault had failed to demo nstrate USPS committed any wrongful act s that caused him to take leave. Id . at 7 . Because a constructive su spension requires such proof , the AJ concluded that Thibeault did not prove his absence was involuntary, and

,THIBEAULT v. MSPB 5

thus

, the Board lacked jurisdiction over his constructive suspension claim. Id

. Regarding Thibeault’s claim for constructive removal, the AJ again explained that Thibeault had failed to demonstrate that USPS’s failure to reassign him was improper because there were no other suitable assig nments available at the time. Id . at 8

. Further, there was no evidence that USPS misled him, considered unwa rranted disciplinary action, or prevented him from wit hdrawing his retirement before its effective date. Id

. While the AJ recognized that Thibeault may have faced unpleasant working con ditions, constructive removal

re quires more. In the absence of evidence that the cond itions were so intolerable to compel a reasonable person to resign, the AJ found that Thibeault had failed to demo nstrate he lacked a meaningful choice regarding retir eme nt. Id . at 9 . Accordingly, the AJ found that the Board also lacked jurisdiction over Thibeault’s constructive removal claim and dismissed his entire appeal for lack of jurisdiction.

T hibeault urged the Board to reconsider the AJ’s dec ision, but t he Board denied Thibeault’s petition for review

. In addition to affirming the AJ’s initial decision, the Board considered three additional arguments presented by Thibeault for the first time on appeal

. First, the Board dismissed Thibeault’s claim that USPS failed to comply with its own rules

, which require that an employee who suffered a compensable injury receive a medical evalu ation before a reassignment . It found that such a conte ntion did not change the AJ’s determination that there were no available as signments that could accommodate his disability , particularly because the AJ had accepted as true Thibeault’s claim that he, in fact, had a disability

. Final Decision at 4. Second, the Board found that the AJ’s decision not to allow a statement regarding Thibeault’s willingness to take a part

- time position did not provide a basis for reversal. It explained that

, underTHIBEAULT v. MSPB 6

the Rehabilitation Act

, there is no requirement that an agency create a new position for an employee in order to provide reasonable accommo da tion. Thus, even if the Board considered this information, it would not demo nstrate that USPS acted improperly when it did not rea ssign Thibeault to a part

- time position as the agency had no duty to do so

. Id . at 5 . Lastly, the Board concluded that the AJ correctly determined USPS did not err when it did not assign him to a full

- time position posted in September 2013, because there was no evidence th is position w as available prior to Thibeault’s retirement in June 2013

. Id . at 6

. Because the AJ properly determined the Board lacked jurisdiction over Thibeault’s c l aims , the Board affirmed the AJ’s decision and denied Thibeault’s petition for review.
Thibeault timely appealed the Board’s final decision to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012).

D ISCUSSION The scope of our review in an appeal from a final dec ision of the Board is limited. We must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accord ance with law; (2) obtained without procedures required by law, rule or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). We review the Board’s decision regarding its own jurisdiction de novo. Palmer v. Merit Sys. Prot. Bd. , 550 F.3d 1380, 1382 (Fed. Cir. 2008)

. We are bound, however, by the Board’s factual findings on which a jurisdictional determination is based “unless those findings are not supported by substantial evidence.” Bolton v. Merit Sys. Prot . Bd. , 154 F.3d 1313, 1316 (Fed. Cir. 1998).
On appeal, Thibeault does not challenge the Board’s procedure, but rather its finding s that his leave of absence and retirement were not the result of an erroneous dec i-THIBEAULT v. MSPB 7

sion by USPS. Specifically, Thibeault argues that the Board erred by failing to properly consider that (1) he is disabled, (2) USPS misrepresented Thibeault’s legal position to the Board, and (3) USPS was obligated to medically evaluate Thibeault prior to reassigning him to any position.

Wi th respect to the Board’s consideration of his dis ability, Thibeault argues that the Board simply ignored this fact when evaluating whether his leave of absence and retirement were involuntary

. But a review of the record reveals that b oth the AJ and the Board assumed he had a disability that gave him the right to reasonable accommodations

. See Initial Decision at 4 (“I will assume, for purposes of this decision, that the appellant had a disability that gave him the right to reasonable accomm odations.”); Final Decision at 4– 6 (discussing whether USPS wrongfully failed to assign Thibeault to a position

as acco mmodation for his disability). Thibeault’s asse rtions to the contrary are unpersuasive

. Thibeault also alleges that USPS misled th e Board by inaccurately describing Thibeault’s position and misre presenting h is rights under the applicable law. He co ntends that a reasonable acco mmodation only required an assignment that met his medical needs

— he did not r equire a fully

- funded position. Essentially, Thibeault disputes whether USPS erred by not assigning him to an available part

- time position , as opposed to creating a new one for him

. When determining if an agency failed to provide reasonable accommodations, a claimant must prove that s uch an accommodation was available at the relevant time

. See Benavidez v. Dep’t of Navy , 241 F.3d 1370, 1375 (Fed. Cir. 2001). If there was no accommod ation available, then an agency cannot be found to have constructively suspended or removed a claimant

. See id. ; Williams v. Merit Sys. Prot. Bd. , 227 F. App’x 916, 919 (Fed. Cir. 2007).THIBEAULT v. MSPB 8

While there were part

- time positions available during this time period, the AJ relied upon unrebutted evidence to find that it would violate the CBA to assign Thibeault
to such a position

. Initial Decision at 6

. Although an agency can override a CBA if special circumstances exist, it does not appear Thibeault made such a showing. See U.S. Airways, Inc. v. Barnett , 535 U.S. 391, 405

– 06 (2002) ( “[T]he plaintiff must bear t he burden of showing special circumstances that make an exception from the seniority system reasonable in the particular case.” ). In the a bsence of such circumstances, substantial evidence su pports the AJ’s finding that the part

- time positions available d uring the relevant time were not reasonable accommodations. Further , to the extent that Thibeault does argue that USPS should have created a new position for him to accommodate his disability, the AJ correctly determined that USPS was not required to do s o

. Office of the Architect v. Office of Compliance , 361 F.3d 633, 643 (Fed. Cir. 2004) (“[A]n employer is not required to create a new position to accommodate a disabled employee . . . .”); see Wade v. U.S. Postal Serv. , 157 F. App’x 268, 270 (Fed. Cir. 2 005) (“While the agency is required to assign a disabled employee to a position he can perform, if one exists, it is not required to generate such a position when it does not reasonably exist.”).
Lastly , with respect to Thibeault’s claims that USPS could not reassign him without a medical examination, as the Board correctly found

, this does not change the AJ’s finding that there were no other positions availa ble between January and June 2013. Thibeault must demo nstrate that USPS erred by failing to provide reasonable accommodations in order to establish that he was co nstructively suspended and then constructively re moved from his job , by showing USPS could have reassigned him to a different position

. Here, there was substantial ev idence to support the AJ ’s finding that there were no other available assignments during the relevant time. Thus,THIBEAULT v. MSPB 9

the Board did not err when it affirmed the AJ’s decision to dismiss Thibeault’s claims for lack of jurisdiction.

C ONCLUSION

For the foregoing reasons, we affirm the decision of the Board.

AFFIRMED