       NOTE: This disposition is nonprecedential.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 respond-
ent. 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. 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.
                      BACKGROUND
    Thibeault was a mail handler for the United States
Postal Service (“USPS”), who had operated mail pro-
cessing machines before the USPS replaced these ma-
chines 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 mail-
processing 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 assign-
ment. 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 travel-
ling 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 sus-
pended 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 jurisdic-
tion to review cases where an employee takes leave or
retires, because it is presumed these actions are volun-
tary. 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 evi-
dence . . . 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 collec-
tive 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 ac-
commodation after his reassignment, the AJ explained
that an agency is required to make a reasonable accom-
modation 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 Janu-
ary and June 2013, the CBA prohibited assigning a full-
time employee, such as Thibeault, to a non-career posi-
tion. 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 demon-
strate USPS committed any wrongful acts that caused
him to take leave. Id. at 7. Because a constructive sus-
pension 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 assign-
ments available at the time. Id. at 8. Further, there was
no evidence that USPS misled him, considered unwar-
ranted disciplinary action, or prevented him from with-
drawing 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 condi-
tions were so intolerable to compel a reasonable person to
resign, the AJ found that Thibeault had failed to demon-
strate he lacked a meaningful choice regarding retire-
ment. 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 deci-
sion, 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 evalua-
tion before a reassignment. It found that such a conten-
tion 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 demon-
strate that USPS acted improperly when it did not reas-
sign 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 deci-
sion 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 disa-
bility, 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 accommo-
dations.”); Final Decision at 4–6 (discussing whether
USPS wrongfully failed to assign Thibeault to a position
as accommodation for his disability). Thibeault’s asser-
tions to the contrary are unpersuasive.
    Thibeault also alleges that USPS misled the Board by
inaccurately describing Thibeault’s position and misrep-
resenting his rights under the applicable law. He con-
tends that a reasonable accommodation only required an
assignment that met his medical needs—he did not re-
quire 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 accommoda-
tion 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 ab-
sence of such circumstances, substantial evidence sup-
ports 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 demon-
strate that USPS erred by failing to provide reasonable
accommodations in order to establish that he was con-
structively suspended and then constructively removed
from his job, by showing USPS could have reassigned him
to a different position. Here, there was substantial evi-
dence 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
