Opinion

Kirk Zihlman v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Sep 23, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

“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.”

How later courts described this case

“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.”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KIRK A. ZIHLMAN, DOCKET NUMBER

Appellant, DA-844E-19-0529-I-1

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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.

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

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.

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).

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

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

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.

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

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,

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

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.

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.

(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:

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).

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.

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