NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

DANIEL THIBEAULT,

Petitioner

v.

MERIT SYSTEMS PROTECTION 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

______________________ 

DANIEL THIBEAULT, El Cajon, CA, pro se.

STEPHEN FUNG, Office of the General Counsel, Merit 

Systems Protection Board, Washington DC, for respondent. Also represented by BRYAN G. POLISUK. 

______________________ 

Before O’MALLEY, PLAGER, and TARANTO, Circuit 

Judges.
2 THIBEAULT v. MSPB

PER CURIAM. 

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 retire 

were involuntary. Thibeault v. U.S. Postal Serv., No. SF0752-13-0646-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. 

BACKGROUND

Thibeault was a mail handler for the United States 

Postal Service (“USPS”), who had operated mail processing machines before the USPS replaced these machines 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, 2014) 

(hereinafter, Initial Decision) (reproduced at RA 8–21). 

Because these new machines were to be operated by mailprocessing clerks, and not mail handlers, USPS informed 

Thibeault that his services as a mail handler were no 

longer required, and invited him to bid for a new assignment. Id. at 2. When Thibeault did not bid on a new 

assignment, USPS assigned him to a new shift—from 8:00 

p.m. to 4:30 a.m. Thibeault objected to this assignment,

arguing that his psoriatic arthritis would be exacerbated 

by the cold weather he would be exposed to while travelling 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 

working the overnight shift. When 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 suspended him from February to June 2013, and construc-
THIBEAULT v. MSPB 3

tively removed him from his position when he was forced 

to retire in June 2013. Id. at 6. In the initial decision, the 

administrative judge (“AJ”) concluded that the Board did 

not have jurisdiction to consider Thibeault’s appeal. Id. 

at 3, 16. 

As a general matter, the Board does not have jurisdiction to review cases where an employee takes leave or 

retires, because it is presumed these actions are voluntary. 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 claimant must make “non-frivolous allegations . . . 

that, if proven, can establish the Board’s jurisdiction.” 

Garcia, 437 F.3d at 1330. If 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 evidence . . . with respect to: [i]ssues of jurisdiction . . . .”). If 

a claimant is able to 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 Initial 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. 
4 THIBEAULT v. MSPB

With respect to Thibeault’s claim that he was forced 

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 reassignment. Id. at 4. Under the agency’s collective bargaining agreement (“CBA”), which governed 

Thibeault, USPS was allowed to assign Thibeault to any 

vacant duty assignment. Therefore, the AJ reasoned that 

the initial decision to assign him to an overnight shift was 

not improper.

With respect to Thibeault’s request for reasonable accommodation after his reassignment, the AJ explained 

that an agency is required to make a reasonable accommodation 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 accommodations, even though his 

sensitivity to cold temperatures related to his commute 

and not his actual working conditions. Id. Nonetheless, 

the AJ concluded that USPS was not required to reassign 

him to another post as a reasonable accommodation, 

because there were no vacant positions to which 

Thibeault could have been reassigned. While there were

part-time, non-career positions available between January and June 2013, the CBA prohibited assigning a fulltime employee, such as Thibeault, to a non-career position. Id. at 6. Without any evidence that Thibeault would 

have accepted a voluntary demotion or that there was an 

exceptional circumstance which justified violating the 

CBA, the AJ found that Thibeault had failed to demonstrate USPS committed any wrongful acts that caused 

him to take leave. Id. at 7. Because a constructive suspension 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 assignments available at the time. Id. at 8. Further, there was 

no evidence that USPS misled him, considered unwarranted disciplinary action, or prevented him from withdrawing his retirement before its effective date. Id. 

While the AJ recognized that Thibeault may have faced 

unpleasant working conditions, constructive removal 

requires more. In the absence of evidence that the conditions were so intolerable to compel a reasonable person to 

resign, the AJ found that Thibeault had failed to demonstrate he lacked a meaningful choice regarding retirement. 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. 

Thibeault urged the Board to reconsider the AJ’s decision, but the 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 evaluation before a reassignment. It found that such a contention did not change the AJ’s determination that there 

were no available assignments 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, under 
6 THIBEAULT v. MSPB

the Rehabilitation Act, there is no requirement that an 

agency create a new position for an employee in order to 

provide reasonable accommodation. Thus, even if the 

Board considered this information, it would not demonstrate that USPS acted improperly when it did not reassign 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 this

position was available prior to Thibeault’s retirement in 

June 2013. Id. at 6. Because the AJ properly determined 

the Board lacked jurisdiction over Thibeault’s claims, 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).

DISCUSSION

The scope of our review in an appeal from a final decision 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 accordance 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 findings that his leave of absence 

and retirement were not the result of an erroneous deci-
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. 

With respect to the Board’s consideration of his disability, 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 both 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 accommodations.”); Final Decision at 4–6 (discussing whether

USPS wrongfully failed to assign Thibeault to a position 

as accommodation for his disability). Thibeault’s assertions to the contrary are unpersuasive. 

Thibeault also alleges that USPS misled the Board by 

inaccurately describing Thibeault’s position and misrepresenting his rights under the applicable law. He contends that a reasonable accommodation only required an 

assignment that met his medical needs—he did not require 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 such 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 accommodation 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).
8 THIBEAULT v. MSPB

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 the burden of showing special 

circumstances that make an exception from the seniority 

system reasonable in the particular case.”). In the absence of such circumstances, substantial evidence supports the AJ’s finding that the part-time positions 

available during 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 so. 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. 2005) (“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 available 

between January and June 2013. Thibeault must demonstrate that USPS erred by failing to provide reasonable 

accommodations in order to establish that he was constructively suspended and then constructively removed 

from his job, by showing USPS could have reassigned him 

to a different position. Here, there was substantial evidence 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.

CONCLUSION

For the foregoing reasons, we affirm the decision of 

the Board. 

AFFIRMED