Kirk Zihlman v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIRK A. ZIHLMAN, DOCKET NUMBER
Appellant, DA-844E-19-0529-I-1
v.
OFFICE OF PERSONNEL DATE: September 23, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kirk A. Zihlman , Houston, Texas, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying his application for disability retirement benefits. Generally, we
grant petitions such as this one only in the following circumstances: the initial
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to vacate the administrative judge’s holding that the
appellant failed to demonstrate that he was unable to render useful and efficient
service, we AFFIRM the initial decision.
BACKGROUND
The appellant was a Health Science Specialist with the Department of
Veterans Affairs (VA). Initial Appeal File (IAF), Tab 5 at 128. He suffers from
chronic left-side spastic hemiparesis, mixed sensorineural hearing loss in the right
ear, and psoriatic arthritis. Id. at 37; IAF, Tab 1 at 4. In March 2017, he was
terminated when his research project’s funding ended. IAF, Tab 5 at 128.
Prior to his position ending, he filed an application for disability retirement under
the Federal Employees Retirement System (FERS) based on the above conditions,
which was subsequently denied by OPM. Id. at 23-33, 118-120. The appellant
requested reconsideration of the decision, and on August 19, 2019, OPM affirmed
its initial decision denying his application for disability retirement. Id. at 6-11,
21-22. Although OPM found that he had a medical condition defined as a disease
or injury, it found that he failed to demonstrate that he was unable, because of his
disease or injury, to render useful and efficient service in his prior position.
3
Id. at 8. Based on this finding, OPM found that he failed to meet several other
criteria requisite for disability retirement. Id. at 9-10.
He subsequently appealed this decision to the Board. IAF, Tab 1. In his
appeal, he explained the difficulties caused by his disability in the performance of
his job. Id. at 4. He further explained that he was an exemplary employee who
consistently had to push through the effects and difficulties of his disability to
render effective work for the VA. Id. He also argued that he is “disabled” as
defined by the Americans with Disabilities Act (ADA), and that the Supremacy
Clause of the U.S. Constitution prohibits OPM from implementing a more
restrictive definition of disability than the ADA. Id.After holding a hearing, the administrative judge affirmed OPM’s
reconsideration decision denying the appellant’s disability retirement application.
IAF, Tab 15, Initial Decision (ID) at 1. In so holding, the administrative judge
noted that the appellant suffered no performance deficiencies during his time with
the VA. ID at 7. Accordingly, the administrative judge found that the appellant
failed to meet his burden of showing that his medical conditions affected his
ability to perform the specific work requirements of his position or his ability to
report to work. Id. The administrative judge further held that, even if the
appellant sufficiently established that he could not render useful and efficient
service, he nonetheless failed to prove that accommodation of his condition
would have been unreasonable. ID at 7-8. Rather, the administrative judge noted
that the agency appeared to be responsive to the appellant’s accommodation
requests, but the appellant never requested any accommodation after 2016. ID
at 8.
The appellant has filed a petition for review, and the agency has responded.
Petition for Review (PFR) File, Tabs 1, 3. He repeats his argument that his
performance was not deficient because he was an exemplary employee who gave
all that he physically could to support the agency’s mission. PFR File, Tab 1 at 4.
He further argues that the agency failed to grant his reasonable accommodation
4
request for a private workspace that would allow the use of a speakerphone and
not require him to cross a busy street between his office space and a separate
research building. Id. at 4-5. He also argues that the agency failed to provide a
rebuttal for any of his testimony, indicating that it was unable to refute any of his
arguments. Id. at 5. Finally, he repeats his argument that the Supremacy Clause
precludes OPM’s restrictive definition of a disabled person, which he contends
conflicts with the definition set forth in the ADA. Id. at 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s challenge to OPM’s authority to define and implement disability
retirement rules is unpersuasive.
The appellant argues, both below and on review, that the Supremacy Clause
of the Constitution prohibits OPM from creating its own definition of “disabled”
that contradicts the ADA. 2 PFR File, Tab 1 at 6; IAF, Tab 1 at 4.
The administrative judge did not address this argument.
Under 5 U.S.C. § 8451(a)(1)(A)-(B), an employee shall be considered
disabled for purposes of receiving a disability retirement annuity only if the
employee is found by OPM to be unable, because of disease or injury, to render
useful and efficient service in the employee’s position. See 5 C.F.R. § 844.102.
By contrast, the ADA as amended defines “disability” as, among other things, a
physical or mental impairment that substantially limits one or more major life
activities of an individual. 42 U.S.C. § 12102(1)(A); see 29 C.F.R. § 1630.2(g)
(1)(i). The ADA, as amended, prohibits discrimination against qualified
individuals on the basis of disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment. 42 U.S.C.
§ 12112(a). Thus, Congress has defined the term “disability” differently for
different purposes, and the appellant has shown no conflict in this regard. Cf.
2
The ADA Amendments Act, which expanded the definition of “disability” and became
effective on January 1, 2009, as well as its implementing regulations, apply in this case.
See Thome v. Department of Homeland Security, 122 M.S.P.R. 315, ¶ 23 n.6 (2015).
5
Szejner v. Office of Personnel Management, 99 M.S.P.R. 275, ¶¶ 12-13 (2005)
(holding that, although the Board must consider an award of Social Security
Administration disability benefits, it is not dispositive in determining eligibility
for FERS disability retirement), aff’d, 167 F. App’x 217 (Fed. Cir. 2006).
Moreover, the Supremacy Clause only prohibits state and local laws from
controlling the Federal government, and thus cannot be used to challenge Federal
agencies applying Federal laws. See Augustine v. Department of Veterans
Affairs, 429 F.3d 1334, 1339 (Fed. Cir. 2005) (“It is long established that any
state or local law which attempts to impede or control the federal government or
its instrumentalities is deemed presumptively invalid under the Supremacy
Clause.”).
Here, OPM actually found that the appellant had a medical condition that is
defined as a disease or injury. IAF, Tab 5 at 8-9. However, it also found that he
failed to demonstrate that his disease or injury rendered him unable to provide
useful and efficient service in his position of employment. Id. at 8. Thus, as
OPM held, although the appellant sufficiently demonstrated his medical
condition, he failed to demonstrate his eligibility for disability retirement
benefits. As set forth below, we agree.
The administrative judge correctly found that the appellant failed to demonstrate
all of the requisite criteria of eligibility for disability retirement benefits.
The administrative judge held that the appellant failed to meet his burden
of establishing entitlement to a disability retirement annuity. ID at 8. While we
agree with that ultimate conclusion, as set forth below, we vacate a portion of her
finding regarding the second criterion, but affirm the initial decision’s conclusion
that the appellant failed to demonstrate his entitlement to a disability retirement.
In an appeal from an OPM decision denying a disability retirement
application, the appellant bears the burden of proof by preponderant evidence.
Chavez v. Office of Personnel Management, 111 M.S.P.R. 69, ¶ 6 (2009);
5 C.F.R. § 1201.56(b)(2)(ii). To be eligible for a disability retirement annuity
6
under FERS, an employee must demonstrate the following criteria:
(1) he completed at least 18 months of creditable civilian service; (2) while
employed in a position subject to FERS, he became disabled because of a medical
condition, resulting in a deficiency in performance, conduct, or attendance, or, if
there is no such deficiency, the disabling medical condition is incompatible with
either useful and efficient service or retention in the position; (3) the disabling
medical condition is expected to continue for at least 1 year from the date that the
application for disability retirement benefits was filed; (4) accommodation of the
disabling medical condition in the position held must be unreasonable; and (5) the
employee did not decline a reasonable offer of reassignment to a vacant position.
Chavez, 111 M.S.P.R. 69, ¶ 6.
A determination on eligibility for disability retirement should take into
account all competent medical evidence, including both objective clinical
findings and qualified medical opinions based on the applicant’s symptoms.
Id., ¶ 7. In addition, the determination should include consideration of the
applicant’s own subjective evidence of disability and any other evidence of the
effect of his condition on his ability to perform in the position he last occupied.
Id.It is unclear whether the appellant’s medical conditions rendered
him unable to perform useful and efficient service in his position.
The appellant here alleged that his medical conditions impacted several
major life activities, made the performance of his work requirements increasingly
difficult, and challenged OPM’s determination that his disabilities never
interfered with his job performance. IAF, Tab 1 at 4. The administrative judge
held that the appellant failed to establish the second criterion of eligibility for a
disability retirement because he had no performance or attendance deficiencies.
ID at 7. She further noted, without much analysis, that he failed to establish that
his medical conditions affected his ability to perform specific work requirements.
Id. We find that the administrative judge failed to properly analyze whether the
7
appellant was unable to render useful and efficient service. Accordingly, we
vacate her finding regarding that criterion.
There are two methods to demonstrate that an appellant is unable, because
of disease or injury, to render useful and efficient service in their position: (1) by
showing that the medical condition caused a deficiency in performance,
attendance, or conduct; or (2) by showing that the medical condition is
incompatible with either useful and efficient service or retention in the position.
Jackson v. Office of Personnel Management, 118 M.S.P.R. 6, ¶ 7 (2012).
The administrative judge did not sufficiently analyze the appellant’s claim under
the second method. See Thieman v. Office of Personnel Management,
78 M.S.P.R. 113, 116 (1998) (explaining that, after an administrative judge found
that an appellant did not prove that he had a conduct or attendance deficiency
related to his medical conditions, the administrative judge should have addressed
whether the appellant’s condition was incompatible under the alternative prong
regarding disability). Under the second method, an appellant can show that the
medical condition is inconsistent with working in general, working in a particular
line of work, or working in a particular type of setting. Jackson, 118 M.S.P.R. 6,
¶ 8. An appellant’s own subjective complaints of inability to work must be
seriously considered, particularly when supported by competent medical
evidence. Balmer v. Office of Personnel Management, 99 M.S.P.R. 199, ¶ 10
(2005).
In Chavez, the Board found that the appellant sufficiently demonstrated that
her medical conditions precluded her from performing her specific work
requirements as a window clerk. Chavez, 111 M.S.P.R. 69, ¶¶ 8-11. There, the
appellant and her doctor noted that her conditions specifically interfered with her
ability to interact appropriately with others at work, adapt to stress, and perform
tasks requiring sustained concentration or an ability to organize, all of which
were required by her position. Id., ¶ 8.
8
Here, the appellant explained that he is paralyzed on his left side, and most
profoundly in his left arm. IAF, Tab 1 at 4. He further explained that he is
right-handed and has hearing loss in his right ear. Id. The appellant’s position
description identifies several major duties, all of which reference conducting
various types of interviews in the performance of said duties. IAF, Tab 5
at 73-74. According to the appellant, most of his work and these interviews are
conducted over the telephone. PFR File, Tab 1 at 5; IAF, Tab 1 at 4.
As explained by the appellant, he has increased difficulty making telephone calls
to collect data, given that he writes and types with his right hand and thus has no
way to simultaneously hold a telephone. IAF, Tab 1 at 4. This is generally
supported by his medical documentation. IAF, Tab 5 at 37, 41-69.
Specifically, his doctor noted that the appellant “finds it increasingly difficult
with right-sided hearing loss and left-sided hemiplegia to do his job which
requires extensive telephone use and writing.” Id. at 37.
There is a serious question as to whether this is sufficient to demonstrate
that his medical condition was inconsistent with the specific work requirements
of a Health Science Specialist. However, we need not resolve this issue on
review because, as set forth below, we agree with the administrative judge that
the appellant failed to prove that accommodation of his disabling medical
condition was unreasonable. See Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984) (finding an adjudicatory error that is not prejudicial
to a party’s substantive rights provides no basis for reversal of an initial
decision).
The administrative judge correctly found that the appellant failed to
prove that accommodation of his disabling medical condition was
unreasonable.
The appellant on review argues that the agency failed to provide his
requested accommodations and failed to rebut his testimony. PFR File, Tab 1
at 4-5. The administrative judge found that the appellant failed to prove
9
accommodation of his condition was unreasonable, and that the agency was
responsive to his accommodation requests to aid him with any difficulty he was
experiencing. ID at 7-8. We agree with the administrative judge.
Under FERS, an individual is not eligible for disability retirement benefits
if there is a reasonable accommodation for the disabling condition in the position
held. Confer v. Office of Personnel Management, 111 M.S.P.R. 419, ¶ 29 (2009).
Indeed, if there is an accommodation that enables the employee to perform the
critical or essential duties of his position of record, the employee may not receive
disability retirement. Chavez, 111 M.S.P.R. 69, ¶ 13. Accommodation is defined
as a reasonable adjustment made to an employee’s job or work environment that
enables the employee to perform the duties of the position. 5 C.F.R. § 844.102.
Among possible accommodations are modifying the worksite and obtaining or
modifying equipment or devices. Id.The appellant here stated that roughly 70% of his work involves conducting
telephonic interviews, which are a part of several of his major work duties.
PFR File, Tab 1 at 5; IAF, Tab 5 at 73-74. As discussed above, the appellant’s
left-side paralysis and right-side hearing loss made it increasingly difficult to
make telephone calls to collect data for his job, given that he writes and types
with his right hand. IAF, Tab 1 at 4, Tab 5 at 37. The appellant further explained
that, due to the sensitive nature of the data being collected, conducting the calls
on a speakerphone was not appropriate. IAF, Tab 1 at 4. In his initial appeal, the
appellant suggested that an earpiece or headset would have alleviated these
difficulties, but he was never given such accommodations. Id. As held by the
administrative judge, the record is devoid of any evidence that the appellant
requested any type of headset and that such request was denied by the agency.
ID at 8.
Nevertheless, as our reviewing court has held, there is no basis in the
relevant statutes or regulations that requires an applicant for disability benefits to
actually request an accommodation. Gooden v. Office of Personnel Management,
10
471 F.3d 1275, 1279 (Fed. Cir. 2006). Similarly, it is irrelevant for disability
retirement purposes whether the agency has refused to accommodate an appellant.
Dec v. Office of Personnel Management, 47 M.S.P.R. 72, 79 (1991). Rather, the
issue is whether the agency is unable to reasonably accommodate the appellant.
Gooden, 471 F.3d at 1279. Here, we find that the appellant did not meet this
burden by preponderant evidence. See 5 C.F.R. § 1201.56(b)(2)(ii). Although
the appellant did not request an earpiece or headset, we find, consistent with the
appellant’s allegations on review, that providing him with a hands-free telephone
option is a reasonable accommodation that would have enabled him to perform
the critical or essential duties of his position. See 5 C.F.R. § 844.102 (noting that
an accommodation may include obtaining equipment or devices). Accordingly,
he is not entitled to receive disability retirement benefits. See Confer,
111 M.S.P.R. 419, ¶ 29; Chavez, 111 M.S.P.R. 69, ¶ 13.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
12
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
13
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
14
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.