       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

    RENEE PRISCILLA COTHRON-MALLETT,
                 Petitioner,

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                Respondent,

                         AND

      EQUAL EMPLOYMENT OPPORTUNITY
                COMMISSION,
                  Intervenor.
             _____________________

                      2014-3035
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DC-0752-12-0828-I-1.
                ______________________

             Decided: November 10, 2014
               ______________________

    RENEE PRISCILLA COTHRON-MALLETT, of Clinton, Mar-
yland, pro se.

   MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
2                                COTHRON-MALLETT   v. MSPB



Washington, DC, for respondent. With him on the brief
was BRYAN G. POLISUK, General Counsel.

    ELIZABETH ANNE SPECK, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for intervenor. With
her on the brief were STUART F. DELERY, Assistant Attor-
ney General, ROBERT E. KIRSCHMAN, JR., Director, and
SCOTT D. AUSTIN, Assistant Director.
                 ______________________

    Before O’MALLEY, WALLACH, and CHEN, Circuit Judges.
PER CURIAM.
     Renee Priscilla Cothron-Mallett appeals a final deci-
sion of the Merit Systems Protection Board (“the Board”)
dismissing her appeal for lack of jurisdiction based on her
inability to show that her disability retirement was invol-
untary. Cothron-Mallett v. Equal Employment Oppor-
tunity Comm’n, No. DC-0752-12-0828-I-1 (M.S.P.B. Sep.
16, 2013).     Because we agree with the Board that
Cothron-Mallett has not established jurisdiction, we
affirm.
                      I. BACKGROUND
    Cothron-Mallett worked at the Equal Employment
Opportunity Commission (“EEOC”) as a GS-0343-12
management analyst in the agency’s Office of Human
Resources when the office changed locations in November
2008. Shortly after the move, Cothron-Mallett started to
become physically ill with respiratory problems and other
symptoms, requiring her to be taken to the hospital from
work on two separate occasions. Because she believed her
symptoms were caused by something in the new building,
her supervisor—Anthony Kaminski—allowed her to
telework from home three days per week.           [JA13.]
Around this time, the EEOC arranged for air quality
testing and discovered that the level of formaldehyde in
COTHRON-MALLETT   v. MSPB                                 3



the air exceeded recommended levels. The EEOC was
advised to increase ventilation and continue monitoring
the formaldehyde level.
    In May 2009, Cothron-Mallett was taken from work to
the hospital for a third time. After the third incident,
Kaminski allowed her to work from home full time, pend-
ing the results of additional air quality testing. In August
2009, the EEOC received results indicating that the
formaldehyde levels were back to normal based on all
workplace recommendations.          On October 13, 2009,
Kaminski informed Cothron-Mallett that the air quality
issues had been fixed and that she needed to return to
work.
     In response, Cothron-Mallett indicated that she
could not return to work due to her previously undisclosed
carpal tunnel syndrome condition. Kaminski suggested
that she contact Kendra Duckworth—the EEOC’s Disabil-
ity Program Manager—to discuss accommodations that
would allow her to return to work with her condition. On
October 27, 2009, Cothron-Mallett informed Kaminski
that her doctor had placed her on total disability until
November 10, 2009 for her carpal tunnel condition. She
remained on Leave without Pay for the remainder of 2009
and all of 2010.
    In November 2010, Duckworth contacted Cothron-
Mallett to offer assistance with accommodations for her
carpal tunnel syndrome. In January 2011, the EEOC
sent Cothron-Mallett a letter indicating a variety of
accommodations it would make to accommodate her
condition. Respondent’s Appendix (“R.A.”) at 100–01. On
March 24, 2011, however, she rejected the EEOC’s ac-
commodations, indicating for the first time that she
suffered from “chronic to acute physical impairments and
a severe panic disorder” due to prior exposure to formal-
dehyde gas in the office. R.A. at 98. Cothron-Mallett
requested accommodations “to be allowed to either work
4                                 COTHRON-MALLETT   v. MSPB



from home or be detailed to another agency within [her]
local commuting area.” Id. She supported her request
with a therapist’s letter, diagnosing her with panic/post-
traumatic stress disorder due to her prior exposure to
formaldehyde in her place of work.
    In response, Duckworth sent Cothron-Mallett a letter
on March 31, 2011. Duckworth’s letter indicated that,
although Cothron-Mallett was entitled to reasonable
accommodations, the EEOC could not meet her requested
accommodations. Duckworth explained that Cothron-
Mallett’s current position required a number duties that
she could not perform if she worked from home full time.
Duckworth also informed Cothron-Mallett that the EEOC
did not have authority to assign her to a position in an
agency outside of the EEOC. R.A. at 71.
    On April 11, 2011, Cothron-Mallett sent a letter to
Kamniski, resigning from her position because the EEOC
“den[ied] [her] request for reasonable accommodations.”
Final Agency Decision, Equal Employment Opportunity
Comm’n, No. 2011-33812 at 6 (July 12, 2012). On May 3,
2011, Cothron-Mallett sent a second letter to the EEOC,
stating that she was “involuntary[ily] forced” to resign
due to her PTSD induced panic attacks. Id.
    On August 15, 2011, Cothron-Mallett filed a com-
plaint of discrimination against the EEOC. The EEOC
found that no discrimination or retaliation had occurred
in connection with her employment and resignation.
Cothron-Mallett appealed to the Board, alleging that her
disability retirement was involuntary because she wanted
to continue working, but the EEOC denied her reasonable
accommodations.
    In the initial decision, the administrative judge at the
Board explained that the Board does not have jurisdiction
over voluntary resignations or retirements. In order to
prove her resignation was involuntary in a disability case,
the administrative judge stated that the appellant must
COTHRON-MALLETT   v. MSPB                                5



show, inter alia, that “there was an accommodation
available on the date of her separation, at either the same
or a lower grade level, that would have allowed her to
continue working.” R.A. 16. The administrative judge
concluded that Cothron-Mallett failed to prove that she
could effectively perform all of her duties if granted her
requested accommodation, working from home.             The
administrative judge found that her job required, inter
alia, conducting interviews with supervisors and employ-
ees, conducting studies, delivering briefings, and review-
ing confidential personnel documents kept exclusively on
site. Although Kaminski previously had allowed Cothron-
Mallett to work remotely, the administrative judge found
that she did not perform the full range of her duties
during that time and working from home was only a
temporary accommodation until the air quality tests came
back. Because she did not show that there was a reason-
able accommodation at the time she retired, the adminis-
trative judge concluded that Cothron-Mallett had failed to
prove her dismissal was voluntary and dismissed her
appeal for lack of jurisdiction.
    The Board denied Cothron-Mallett’s petition for re-
view and affirmed the initial decision by the administra-
tive judge, which became the Board’s final decision. In its
final order, the Board also affirmed the administrative
judge’s findings that Cothron-Mallett could not perform
some of the essential functions of her job if she worked
from home full time. According to the Board, moreover,
the administrative judge was correct to find that Cothron-
Mallett’s previous stint working from home was only
temporary and did not indicate that working remotely
was a viable permanent accommodation.
     Cothron-Mallett timely appealed the Board’s final de-
cision to this court. The Board responded and the EEOC
intervened. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9) (2012).
6                                 COTHRON-MALLETT   v. MSPB



                      II. 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); Fields v. Dep’t
of Justice, 452 F.3d 1297, 1301 (Fed. Cir. 2006). We
review decisions of the Board regarding its own jurisdic-
tion without deference. Fields, 452 F.3d at 1301–02
(citing McCormick v. Dep’t of the Air Force, 307 F.3d 1339,
1340 (Fed. Cir. 2002)). We are, however, bound by the
Board’s factual findings on which a jurisdictional deter-
mination is based “unless those findings are not support-
ed by substantial evidence.” Bolton v. Merit Sys. Prot.
Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). Before the
Board, an appellant bears the burden of establishing
Board jurisdiction by a preponderance of the evidence. Id.
    On appeal, Cothron-Mallett argues that the Board
erred in finding that her request for disability retirement
was voluntary. She insists that the “breakdown of the
interactive” accommodations process can amount to a
constructive discharge of the employee. According to
Cothron-Mallett, moreover, the Board erred by relying on
the testimony of EEOC employees that she had not been
performing all of her essential job duties when she worked
from home previously. She contends that, under the
Americans with Disabilities Act, the EEOC should have
reassigned her to a vacant position or made a reasonable
accommodation to her present job that would not cause
undue hardship. Cothron-Mallett insists that she proved
that she could perform all of her essential duties without
face-to-face contact when she previously worked remotely
during the air quality testing. She also asserts that the
Board: (1) failed to consider that the EEOC introduced
new duties to her position; (2) improperly relied on Ka-
COTHRON-MALLETT   v. MSPB                                 7



minski’s testimony that he had only two employees while
she was teleworking because he admitted it was not an
undue hardship; (3) failed to consider that the EEOC did
not actively participate in the interactive accommodation
process; (4) failed to consider that her position was avail-
able to her at the time of the discharge; and (5) improper-
ly refused to consider her desire to continue working.
    The Board responds this court’s review is limited by
statute, and that we should accept the credibility deter-
minations made by the administrative judge. The Board
insists that retirements are presumed voluntary, and that
an appellant alleging her disability retirement was invol-
untary must show that: “(1) she indicated to the agency
that she wished to continue working, but that her medical
limitations required a modification of her work conditions
or duties, i.e., accommodation; (2) there was a reasonable
accommodation available during the period between the
date on which she indicated to the agency that she had
medical limitations, but desired to continue working, and
the date that she was separated, that would have allowed
the appellant to continue working; and (3) the agency
unjustifiably failed to offer that accommodation.” Re-
spondent’s Br. 17 (citing SanSoucie v. Dep’t of Agric., 116
M.S.P.R. 149, 154 (2011)). Under this test, the Board
contends that the administrative judge was correct to find
that the only issue in dispute was whether the agency
properly denied Cothron-Mallett’s request to work from
home full-time, particularly because she did not object to
the pre-trial ruling limiting the hearing to that issue.
According to the Board, substantial evidence supports the
administrative judge’s determination that Cothron-
Mallett could not perform all of the essential duties of her
position while working remotely. The Board contends
that substantial evidence also supports the determination
that Cothron-Mallett was not performing all of her duties
when she temporarily worked remotely in 2009. The
8                                 COTHRON-MALLETT   v. MSPB



Board asserts that Cothron-Mallett’s other arguments are
without merit.
    The EEOC echoes the Board’s arguments, adding that
the Board lacks jurisdiction in an involuntary disability
retirement case unless the employee shows “that there
was an accommodation available on the date of his sepa-
ration that would have allowed him to continue his em-
ployment, and that agency did not provide him that
accommodation.” Intervenor’s Br. 15 (quoting Benavidez
v. Dep’t of Navy, 241 F.3d 1370, 1375 (Fed. Cir. 2001)).
According to the EEOC, this court has adopted the
Fruhauf test for establishing involuntary or coerced
actions. Id. (citing Garcia v. Dep’t of Homeland Security,
437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc)). The
EEOC contends that the Board properly afforded
Cothron-Mallett a hearing to determine if her retirement
was involuntary and properly determined that she did not
prove it was involuntary by the preponderance of the
evidence.    The EEOC insists that Cothron-Mallett’s
arguments regarding the Board’s factual determinations
are nothing more than assertions that the administrative
judge was wrong to credit Kaminski’s testimony.
    We agree with the Board and the EEOC that Cothron-
Mallett failed to prove jurisdiction. As a general matter,
the Board does not have jurisdiction to review cases
where an employee voluntarily retires or resigns. Shoaf
v. Dep’t of Agric., 260 F.3d 1336, 1340–41 (Fed. Cir. 2001).
Because decisions to retire or resign are presumed volun-
tary, Cothron-Mallett had the burden to show that her
resignation was involuntary to establish jurisdiction.
Garcia, 437 F.3d at 1328. In Garcia, we held that a
claimant has a right to a hearing and, at that hearing, the
claimant must prove jurisdiction by a preponderance of
the evidence. Id. at 1340. In this case, the administrative
judge conducted Cothron-Mallett’s hearing, but found that
she failed to prove jurisdiction by a preponderance of the
evidence. Cothron-Mallett does not challenge the proce-
COTHRON-MALLETT    v. MSPB                                   9



dure of the Board, only its finding that her resignation
was not involuntary.
    Because Cothron-Mallett alleges involuntary disabil-
ity retirement, she “must show that there was an accom-
modation available on the date of [her] separation that
would have allowed [her] to continue [her] employment,
and that the agency did not provide [her] that accommo-
dation.” Benavidez, 241 F.3d at 1375. The Board found
that her requested accommodation was not available to
her because she could not effectively perform all of her job
responsibilities if she worked remotely full time. 1 Alt-
hough Cothron-Mallett argues that the Board was wrong
to credit the EEOC’s position, the Board’s finding is
supported by the testimony of multiple employees and the
job description for her position. R.A. 19–20. We therefore
cannot say that this factual finding is not supported by
substantial evidence. Because our review of the Board’s
decisions is limited by statute, we cannot reweigh the
credibility determinations made by the Board. See 5
U.S.C. § 7703(c). The Board similarly rejected Cothron-
Mallet’s argument that she proved that she could work



    1   Because the Board declined to address Cothron-
Mallett’s reassignment request, our review is limited to
her request to work remotely. See R.A. 16–17 (“Since she
later understood that neither the Board nor the EEOC
could order another agency to find a position for her, the
only matter at issue here was the agency’s denial of her
request for full-time telework on the grounds that it
would not allow her to perform all of the essential duties
of her position.”); see also Wallace v. Dep’t of the Air Force,
879 F.2d 829, 832 (Fed. Cir. 1989) (“‘[O]bjections to the
proceedings of an administrative agency [must] be made
while it has an opportunity for correction in order to raise
issues reviewable by the courts.’” (quoting United States
v. L.A. Trucker Truck Lines, Inc., 344 U.S. 33, 37 (1952)).
10                                COTHRON-MALLETT   v. MSPB



from home full time based on the fact that she had previ-
ously worked remotely. Again, we conclude that the
Board’s finding is supported by substantial evidence
because of the testimony by Kaminski that Cothron-
Mallet’s previous stint working from home was only
meant to be a temporary solution and that she did not
perform all of her job duties during that time. R.A. 19–20.
    Cothron-Mallett’s other arguments lack merit. For
example, she only requested two forms of accommodation
while she was employed at the EEOC. The fact that the
EEOC explained that her two requests could not be met is
not a refusal to engage in the interactive accommodation
process. Indeed, Duckworth’s letter acknowledged that
Cothron-Mallett was “entitled to reasonable accommoda-
tions,” but explained why her two limited requests were
unworkable in this particular situation. R.A. 71–72.
Cothron-Mallett resigned less than two weeks after
Duckworth’s letter, before the parties could discuss other
possible accommodations. See R.A. 16 n.1 (“The record
shows, and the appellant later conceded, that an idea she
and the agency explored in settlement discussions, the
possibility of working for the agency at another site, was
not an accommodation she ever requested from the agency
while she was still employed.”). The Board’s decision,
moreover, was not based on whether Cothron-Mallett
expressed a desire to keep working or whether the posi-
tion was available to her at the time. The Board’s deci-
sion was solely based on its finding that she could not
perform all of her essential job duties if she worked re-
motely full time, which was required for it to find that her
resignation was involuntary.
    Because Cothron-Mallett has failed to overcome the
presumption that her resignation was voluntary, we agree
with the Board that it lacked jurisdiction over her appeal.
COTHRON-MALLETT   v. MSPB                            11



                    III. CONCLUSION
    For the foregoing reasons, we affirm the decision of
the Board.
                      AFFIRMED
