Opinion
Civil Action No. 03-1832 (RMC).
April 20, 2005
MEMORANDUM OPINION
The United States Department of State ("State Department") maintains approximately 263 posts around the world where Foreign Service Officers ("FSOs") represent their country and serve its interests. In the summer of 2002, approximately 5,932 FSOs served in the U.S. Foreign Service. The State Department will not hire a new FSO unless he or she has "worldwide availability," a regulatory term interpreted to mean, inter alia, a health clearance to serve in hardship posts where medical facilities are inadequate. The State Department will not give a health clearance to FSO candidates who are infected with the human immunodeficiency virus ("HIV"), although it accommodates the compromised health status of any member of the Foreign Service who becomes HIV-positive and cannot thereafter work at all posts. Lorenzo Taylor, an otherwise fully-qualified candidate to be an FSO, is HIV-positive. He challenges the State Department's rejection of his application as a violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq., and the government's obligation to make a reasonable accommodation for his condition. The State Department counters that there is no violation of the law because "worldwide availability" is an essential job function for all new FSOs that Mr. Taylor cannot meet. The State Department also explains that it rejected Mr. Taylor due to an asthmatic condition not covered by the Rehabilitation Act. The case must be viewed through the lens of world healthcare systems and Mr. Taylor's health record in 2002, when the State Department made the decision not to hire Mr. Taylor.
I. BACKGROUND
Unless noted, the parties do not dispute the salient facts. Mr. Taylor does challenge the adequacy of the State Department's evaluation of overseas medical care and also the State Department's reliance on his asthmatic condition as an alternative reason for rejecting his candidacy for the Foreign Service, but neither of these is material to the Court's decision. The relevant facts are taken from the parties' submissions and the points of contention will be addressed below.
A. Hiring and Clearance Process for FSO Candidates at The State Department
1. Worldwide Availability
The State Department did not cut its "worldwide availability" criterion for new FSOs out of whole cloth. Section 504(a) of the Foreign Service Act of 1980 provides that "[c]areer members of the Service shall be obligated to serve abroad and shall be expected to serve abroad for substantial portions of their careers." 22 U.S.C. § 3984(a); see id. § 3901(a)(4) ("members of the Foreign Service should be . . . available to serve in assignments throughout the world."). This language was inserted into the statute because of concern that many FSOs in 1980 were not available for service anywhere except the United States and Europe. See H.R. Rept. 96-992, Pt. 2, at 68 (1980) ("Section 504(a) sets forth the fundamental criterion for membership in the Foreign Service — availability for worldwide assignment."). Elsewhere in its report, the House Committee on Foreign Affairs emphasized the same point:
[A]vailability for worldwide assignment must be clearly expressed and understood as a basic requirement for admission to the Foreign Service as well as for retention and promotion in the Foreign Service throughout the individual's career. One of the basic problems giving rise to this new legislation is the atrophy of this fundamental requirement. More than half of the individuals between ages 50 and 60 who are serving today in the Foreign Service are not available for worldwide service. The result has been a concentration of such individuals in Europe and Washington and the inability of the foreign affairs agencies to insure adequate staffing of the more difficult posts overseas.Id., Pt. 1 at 9; see also id., Pt. 2, at 37 (same). Congress set these parameters for the Foreign Service in full realization of the nature of the "more difficult posts overseas":
High heat and humidity, a hostile natural environment, unsanitary conditions, tropical diseases such as malaria, hepatitis, cholera, and meningitis are endemic to many of these posts. Inadequate hospitals, a shortage of doctors or nurses, and few flights in and out of the capital city, which are necessary in cases of medical emergency, combine to present considerable health hazards to individuals serving at these posts.Id., Pt. 1 at 7. "[S]ervice at hardship posts is one of the inescapable aspects of a Foreign Service career." Defendant's Motion for Summary Judgment ("Def.'s Mot.") Ex. 1, Declaration of John Campbell, former Deputy Assistant Secretary in the Bureau of Human Resources, Department of State (currently Ambassador to Nigeria) ("Campbell Decl.") ¶ 8. Acceptance into the Foreign Service requires "acceptance of worldwide assignment." H.R. Rept. 96-992, Pt. 1 at 4. Applicants to the Foreign Service are notified in advance of hardship posts and the worldwide availability requirement. See U.S. Department of State Careers at http://www.careers.state.gov. 2. The State Department's Medical Health Program
Given its worldwide responsibilities, the State Department maintains "a health care program to promote and maintain the physical and mental health of members of the [Foreign] Service" by explicit congressional direction. 22 U.S.C. § 4084(a); see Local 1812 v. Dep't of State, 662 F. Supp. 50, 51 (D.D.C. 1987). In-service FSOs undergo a comprehensive physical examination roughly every two years to determine whether any physical or mental health conditions exist that might limit their future availability for assignment to hardship posts. Def.'s Mot., Ex. 2, 3 Foreign Affairs Manual ("FAM") 1391.3. Applicants to the Foreign Service undergo similar medical examinations to determine whether they are worldwide-available. See 22 U.S.C. § 4084(b)(1) (authorizing the State Department to conduct "medical examinations for applicants for employment"); see also 22 U.S.C. § 3941(b) ("The Secretary shall prescribe, as appropriate, . . . physical . . . examinations for appointment to the Service"); Local 1812, 662 F. Supp. at 51 ("Medical concerns addressed by the examinations focus significantly on the commitment of Foreign Service employees to undertake worldwide duty."). The State Department has adopted a regulation that speaks directly to the issue of medical examinations for FSO candidates:
The medical examination shall be conducted to determine the candidate's physical fitness to perform the duties of a Foreign Service Officer on a worldwide basis and, for candidates and dependants, to determine the presence of any physical, neurological, or mental condition of such a nature as to make it unlikely that they would be able to function on a worldwide basis.22 C.F.R. § 11.1(e)(2)(2003). The medical examination for FSO candidates tests for conditions such as cardiac or metabolic diseases, hypertension or hypotension, tumors and cancers, arthritis, pulmonary disease, sexually-transmitted diseases, allergies and parasitic diseases, liver disease, neurological disease, mental disorders, diabetes, Hepatitis B, and Hepatitis C, to name a few. Def.'s Mot. at 7. The medical exam evolves as medical knowledge suggests. Id., Ex. 4, Declaration of Dr. Laurence G. Brown, Director of State Department's Office of Medical Services ("Brown Decl.") at ¶ 8. Testing for the HIV infection was added in 1986. Id.; see also Local 1812, 662 F. Supp. at 52.
3. The Clearance Process for FSO Candidates
There are two kinds of FSOs: those who are Specialists, such as construction engineers, medical personnel, and information technology professionals, and those who are Generalists. The latter perform the more traditional diplomatic responsibilities, including representational work, trade promotion, political and economic reporting, and consular services and protection. Campbell Decl. ¶ 3. Foreign Service Generalists are subdivided into different career tracks or "cones": Political, Economic, Public Policy, Consular, and Management. Id. ¶ 4. Candidates undergo rigorous examinations, written and oral, for these positions. See 22 C.F.R. § 11.1(b) and (c)). Those who pass also must pass a background security examination and a medical examination. Id. ¶ 5; see also 22 C.F.R. §§ 11.1(d), (e).
The State Department's Office of Medical Services ("MED") is responsible for medical examinations and clearances of all Foreign Service personnel. Brown Decl. ¶ 8. Those whose health status allows service anywhere in the world receive a "Class 1" medical clearance. Id. ¶ 11. Those FSOs on active service who develop a medical condition that can be treated adequately at some but not all posts outside of the United States receive a Class 2 clearance. See 3 FAM 1931.3-1. If an in-service FSO develops a medical condition that cannot be cared for at any post outside the United States, he or she receives a Class 5 clearance. Id. FSO candidates who do not have worldwide availability because of a medical condition also receive Class 5 clearances. See 3 FAM 1931.1(b).
Limiting physical or mental conditions that do not involve medical treatment ( e.g., for non-progressive blindness) do not serve as a basis for denial of a Class 1 clearance. See Brown Decl. ¶ 10.
MED evaluates the availability of health care facilities, in comparison to the care available in the United States, for each post around the world. Brown Decl. ¶ 9. It maintains a Post Capabilities Database with this information. Id. Based on a survey of a post's local medical and laboratory facilities, MED evaluates both the facilities and the expertise of medical personnel in the area of an overseas post. Id. Facilities and physician availability are given numerical ratings, ranging from Zero ("0") (no facility or service available) to Four ("4") (highest quality and comparable to the United States). Id. Mr. Taylor does not challenge this system per se, but argues that MED has completely failed to keep current with the level and availability of medical care for those who are HIV-positive elsewhere in the world.
Candidates for the Foreign Service who successfully complete the clearance process, including MED's Class 1 medical clearance, will have their names placed on a functional rank-order register or special-order register for which they are qualified. 22 C.F.R. § 11.1(f). Rank order is determined by the numerical grades received during the candidates' examinations. 22 C.F.R. § 11.1(c)(5). Candidates are thereafter considered for appointment to the Foreign Service according to rank order and the needs of the Service. If, after 18 months, a candidate has not been appointed because of a lack of vacancies, the candidate is removed from the register. 22 C.F.R. §§ 11.1(g)(2), 11.1(h).
4. Waivers of the Requirement of Worldwide Availability
Candidates who are rejected because a medical condition renders them unavailable for worldwide assignment may apply for an administrative waiver of the requirement. Such requests are reviewed by the Employee Review Committee ("ERC"), which made such decisions by majority vote in 2002. Campbell Decl. ¶ 19. The nature of this appeal is critical to understand: neither the ERC nor anyone else has authority to second-guess MED's determination that the candidate suffers from a medical or mental health condition that renders him or her unavailable for worldwide assignment. Campbell Decl. ¶ 10. Rather, the issue before the ERC is whether the candidate possesses special skills for which the Foreign Service has a compelling need that could outweigh any limitations on the candidate's worldwide availability. Id. ¶¶ 11,13. As part of this review, the ERC considers the percentage of posts to which the candidate could be assigned, whether the candidate's condition is progressive, temporary or permanent, the specific position for which the candidate is applying, and whether the candidate "possesses some extraordinary skill or experience the value of which would outweigh her or his inability to be assigned worldwide." Id.; 3 FAM § 1931.2.
Waivers have been difficult to obtain in recent years due to the high interest in serving in the Foreign Service. Campl. Decl. ¶ 14. In 2002, only 7 of the 80 individuals who applied for a waiver were successful. Id. These successful waiver applicants were Foreign Service Specialists, not Generalists, with specialties such as nursing and security. Id. In contrast, Mr. Taylor applied to serve in the Public Diplomacy cone for which there was no shortage of qualified candidates; at the time of his waiver request, there were over 200 qualified candidates on the register waiting for possible appointment. Id. ¶¶ 15-16.
B. HIV Care and Treatment
HIV is a retrovirus that infects the CD4+ lymphocyte, a type of white blood cell that helps the body fight viral, parasitic and fungal infections. Declaration of Joel Gallant ("Gallant Decl.") ¶ 6. If a person infected with HIV does not receive appropriate treatment, the disease may progress and lower the level of CD4+ cells in the person's blood. Id. ¶ 7. Without treatment, HIV disease progression may lead to immune deficiency, making the infected individual vulnerable to certain opportunistic infections and death. Id. ¶ 10-11. Until 1996, an HIV infection was invariably fatal. Id. ¶¶ 50, 53. At that time, however, the introduction of a new class of antiretroviral medications called protease inhibitors, combined with other drugs, proved able to suppress HIV and prevent deteriorating compromise of patients' immune systems. Id. ¶¶ 15-17.
Experts in the field generally recommend that HIV-positive individuals visit their physicians for monitoring once every three to six months. Gallant Decl. ¶ 26 ("Most guidelines recommend monitoring of the CD4+ count and viral load every three months."); Def.'s Mot., Ex. 11, Guidelines for the Use of Antiretroviral Agents in HIV-1-Infected Adults and Adolescents (October 29, 2004) ("HHS Guidelines") (same). During these visits, doctors assess the health of a patient's immune system by measuring the number of CD4+ cells and the level of HIV (or "viral load") in the individual's blood. Gallant Decl. ¶¶ 23-24. CD4+ and viral load measurements together represent the current predictors of disease progression; a low viral load and high CD4+ count generally indicate that the individual retains a strong immune system and is not likely to experience progression of HIV disease. Id. "An HIV-infected patient must also be monitored with other laboratory tests that measure other indicators of health, such as liver function and red blood cell count. Blood tests are also used to monitor for medication-related toxicity." Id. ¶ 25.
Mr. Taylor relies on his own medical history and the advice of his primary physician, Dr. Douglas Ward, in contending that he would need to be examined only twice a year if he were stationed abroad. See Plaintiff's Memorandum of Points and Authorities In Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Opp.") at 30; Ward Declaration ¶ 17 ("If Mr. Taylor were to join the Foreign Service and move abroad, I would recommend that he visit a physician only once every six months."). Currently, however, Mr. Taylor goes to Dr. Ward for "monitoring, blood work and physical examination approximately once every four months." Id. ¶ 7. In reliance on the HHS Guidelines, however, MED evaluates HIV-positive candidates in the context of a requirement that monitoring be performed approximately every three to four months.
With worldwide attention to the spread of HIV, there is now quality medical care for people with HIV in many countries around the globe. See Pl.'s Opp., Declaration of Dr. Michael Merson ("Merson Decl.") ¶ 22. Dr. Merson, Mr. Taylor's expert on this point, states that, "in July 2002 [when the ERC rejected Mr. Taylor's waiver application], one likely could find physicians qualified to monitor and treat HIV-positive patients at approximately 271 (82%) of . . . posts," and that "one likely could find both qualified physicians and laboratory facilities capable of performing both CD4+ and viral load test[s] . . . at approximately 178 (68%) of . . . posts." Merson Decl. ¶ 39 (emphasis in original). In contrast, based on its own surveys and database, MED estimated that the majority of posts overseas in 2002 were not HIV-capable because of the lack of HIV-capable physicians and/or the unavailability of HIV-capable laboratories. Brown Decl. ¶ 18; see Local 1812, 662 F. Supp. at 54 (finding that HIV-positive candidates for the Foreign Service were not "otherwise qualified" because of the inadequacy of "medical care at such posts . . . to diagnose and treat medical problems that may develop in any infected person"). What both parties agree is that, as of 2002, a minimum of 32% of overseas posts to which FSOs might be assigned did not have adequate doctor and laboratory resources to provide in situ medical monitoring for HIV-positive FSOs.
The State Department challenges the admissibility of Dr. Merson's opinions about HIV-capable Foreign Service posts because most of the international programs on which he bases his opinion "were not initiated until after January 2002 (subsequent to MED's determination of non-worldwide availability), and are therefore immaterial to defendant's decision not to hire plaintiff." Defendant's Reply Memorandum In Support of Her Motion For Summary Judgment ("Def.'s Reply") at 15-16. The Court agrees that the programs described by Dr. Merson and detailed at pages 16 and 17 of Defendant's Reply are not relevant to the immediate issue of the State Department's failure to hire Mr. Taylor and for that reason are rejected. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590-91, 597 (1993).
C. Lorenzo Taylor's Candidacy for the Foreign Service
Mr. Taylor holds a degree from Georgetown University's School of Foreign Service and spent a dozen years working in international relations for the United States Information Agency and the Academy for Educational Development's International Education and Exchange Program. Pl.'s Opp., Declaration of Lorenzo Taylor ("Taylor Decl.") ¶¶ 11-12. He applied to join the Foreign Service in July 2001 in the Public Diplomacy cone. Id. ¶ 20. He passed an oral examination in November 2001 and received a conditional offer of employment from the State Department in late November. Id. ¶¶ 20, 21. His offer was conditioned on a background investigation and medical examination. Campbell Decl. ¶ 4-5; Def.'s Mot. Ex. 9 (Nov. 29, 2001 letter to Plaintiff).
MED refused to grant Mr. Taylor a Class 1 medical clearance for two reasons, either of which could preclude Mr. Taylor from worldwide availability: an asthmatic condition and his HIV-positive condition. See Brown Decl. ¶¶ 14-16; Def.'s Ex. 7 (Jan. 17, 2002 letter to Plaintiff) (stating, without detail, that MED was "unable to authorize a medical clearance for worldwide availability."). Mr. Taylor challenges the reliance on his asthma, which he says is actually not asthma at all, and insists that he was told repeatedly that it was his HIV-positive status that led to his rejection. Taylor Decl. ¶ 22 Ex. B (State Department fact sheet on "HIV Testing Information") ("Because new applicants for the Foreign Service must be worldwide available (Class 1), those who are HIV positive will not be eligible for employment."); Taylor Decl. ¶ 25 (Dr. John Triplett, Chief of MED's Examination Clinic, directly informed Mr. Taylor that he was not eligible because of his HIV status); Pl.'s Opp. Ex. 7, Medical History and Examination Form at 1 ("Disqualified for Overseas Duty Reason — HIV+ — pre-emp[loyment]"). The State Department points out that page four of the Medical History and Examination Form (form DS 1843) indicates that the examining physician requested a pulmonary evaluation under "asthma," indicating contemporaneous recognition of, and concern about, Mr. Taylor's asthma. Def.'s Reply at 7-8 7 n. 3; Def.'s Mot. Ex. 20, Deposition of Kumiko Cross, then Chief of Medical Clearances ("Cross Dep."), at 51-52, 24. The pulmonary report consisted of a January 7, 2002 letter from Mr. Taylor's physician explaining that he had complained of shortness of breath and wheezing in March 2000 and that pulmonary studies "revealed moderate obstruction to air flow with some improvement after bronchodilators." Def.'s Reply, Ex. 21. Further, the report stated that "[t]he patient's pulmonary function studies have really never normalized, but he has been under good control [with the use of drugs]." Id.
Rather than asthma, as originally diagnosed, Mr. Taylor now reports that his pulmonary condition is a benign inflammatory condition known as eosinophilic pneumonia. Pl.'s Opp. at 12; Declaration of Charles A. Read ("Read Decl.") ¶ 8. "This condition, which runs a definite, limited course, has been treated and is not disabling." Pl.'s Opp. at 12. Since this information was not before MED or the ERC and played no part in the decision to reject Mr. Taylor's candidacy, it will not be further referenced.
As to his HIV infection, Mr. Taylor "has never experienced an AIDS-defining opportunistic infection and has never had any serious episodes of HIV-related illness or hospitalizations." Pl.'s Opp. at 12; see Taylor Decl. ¶ 3; Ward Decl. ¶ 15. His medication regimen is relatively non-toxic and it has effectively suppressed the virus in Mr. Taylor's system for years. Ward Decl. ¶¶ 11-12. His physician does not anticipate that he will experience any significant side effects from his current combination of medications. Id. ¶ 14. "Over the past six years, his viral load has remained at an undetectable level and his CD4+ count has averaged in the health range of 400-600 cells/mm³." Id. ¶ 9.
Mr. Taylor requested an administrative waiver of the worldwide availability requirement. Compl. ¶ 28. He was notified on July 15, 2002 that the ERC had denied his request. Id.; see Def.'s Mot. Ex. 22 (information from MED to ERC identifying both HIV infection and asthma as the reasons for Mr. Taylor's medical disqualification).
Mr. Taylor contacted an Equal Employment Opportunity ("EEO") counselor on August 28, 2002, to initiate a claim of discrimination based on disability. Compl. ¶ 29. He was notified of his right to file a formal administrative complaint by letter dated November 7, 2002, id., and he promptly filed his complaint on November 13, 2002. Id. ¶ 30. Mr. Taylor filed the instant suit on September 3, 2003.
II. LEGAL STANDARDS
A. Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is not a "disfavored procedural shortcut[;]" rather, it is a reasoned and careful way to resolve cases fairly and expeditiously. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). In determining whether there is a disputed issue of material fact, the Court must view the underlying facts and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Washington Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989).
The Court's threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. Once the moving party shows that there is a lack of evidence to support the opponent's case, the burden shifts to the non-movant to show, through affidavits or otherwise, the existence of a material issue for trial. Bias v. Advantage Intern, Inc., 905 F.2d 1558, 1561 (D.C. Cir. 1990) ; see Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (citing FED. R. CIV. P. 56 (c)). Conclusory allegations by the non-movant are insufficient to withstand summary judgment. Exxon Corp. v. F.T.C., 663 F.2d 120, 127 (D.C. Cir. 1980) (citing Marks v. United Stated Dep't of Justice, 578 F.2d 261, 263 (9th Cir. 1978)).
B. Rehabilitation Act
"The Rehabilitation Act of 1973 governs employee claims of [disability] discrimination against the Federal Government. Its basic tenet is that the Government must take reasonable affirmative steps to accommodate the handicapped, except where undue hardship would result." Barth v. Gelb, 2 F.3d 1180, 1183 (D.C. Cir. 1993). Section 504 of the Act provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability . . . be subjected to discrimination under any program or activity conducted by any Executive Agency. . . ." 29 U.S.C. § 794(a). To establish a prima facie case of discrimination under the Rehabilitation Act, Mr. Taylor must demonstrate that he is disabled; that he can perform the essential functions of his job with reasonable accommodation; and that he was not hired due to his disability. LaCorte v. O'Neill, 139 F. Supp. 2d 45, 47-48 (D.D.C. 2001) (citing Barth, 2 F.3d at 1186).
For purposes of employment discrimination cases, the standards for liability under the Rehabilitation Act and the Americans with Disabilities Act ("ADA") are the same. See 29 § U.S.C 794(d); Carroll v. England, 321 F. Supp. 2d 58, 69 n. 7 (D.D.C. 2004); Baker v. Potter, 294 F. Supp. 2d 33, 43 n. 7 (D.D.C. 2003). Thus, cases interpreting either are applicable in determining liability. Bell v. Gonzales, 2005 WL 691865, at *5 n. 9 (D.D.C. Mar. 25, 2005).
For purposes of its motion for summary judgment, the State Department concedes that Mr. Taylor's HIV infection constitutes a "disability." Def.'s Reply at 11 n. 8.
III. ANALYSIS
Mr. Taylor offers five reasons why summary judgment is inappropriate in this case:
First, significant evidence suggests that the [State] Department rejected Mr. Taylor's application for employment because of his HIV status, and the [State] Department submits no admissible evidence to the contrary. Second, the [State] Department's assertion that 100 percent availability is an essential function of the job is undermined by evidence of the [State] Department's actual practices. Third, despite the [State] Department's post hoc rationalization to the contrary, Mr. Taylor's pulmonary condition does not render him unqualified for the position or unable to serve abroad. Fourth, significant evidence regarding Mr. Taylor's health and the availability of medical care at overseas posts indicate that Mr. Taylor is capable of serving at most or all Foreign Service posts without posing a direct threat to himself. Finally, the evidence suggests that Mr. Taylor can serve at the [State] Department's "hardship posts," and the [State] Department offers nothing but base speculation to suggest that hiring Mr. Taylor would impose an undue hardship.
Pl.'s Opp. at 15-16 (emphases in original). Some of these arguments can be quickly disposed of so that the real points at issue will become clear. First, the State Department does not deny that it rejected Mr. Taylor, in part, because he is HIV-positive. See Def.'s Reply at 6 ("There is no question that plaintiff's HIV infection was a basis for his non-selection."). Second, Mr. Taylor's pulmonary condition, identified as asthma in 2002, was only one of the reasons for the non-selection decision, as was his HIV-positive status. Therefore, the issues raised by Mr. Taylor that actually need to be determined in evaluating his claim under the Rehabilitation Act are: (1) whether "worldwide availability" is an "essential job function;" (2) whether Mr. Taylor's service at hardship posts would pose a direct threat to himself; (3) if so, whether Mr. Taylor's proposed accommodations concerning his service at hardship posts are "reasonable accommodations" that would eliminate that threat; and (4) whether such accommodations, if made, would impose an undue hardship on the Foreign Service.
A. Is Worldwide Availability an Essential Job Function?
To prevail on a claim under the Rehabilitation Act, a plaintiff must demonstrate that he is a "qualified individual," which is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the position he seeks. See 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m); Flemmings v. Howard Univ., 198 F.3d 857, 861 (D.C. Cir. 1999); Breen v. Dep't of Transp., 282 F.3d 839, 841 (D.C. Cir. 2002). Thus, Mr. Taylor "carries the burden of proving by a preponderance of the evidence that [he] has a disability, but with a reasonable accommodation (which [he] must describe), [he] can perform the essential functions of [his] job." Flemmings, 198 F.3d at 861; Barth v. Gelb, 2 F.3d at 1185 (same).
The State Department contends that Mr. Taylor cannot perform essential FSO functions because his disability makes him unavailable for worldwide assignment. Specifically, Defendant argues that Mr. Taylor is not "qualified" because assigning him to hardship posts without adequate medical resources could cause a significant risk of harm to himself. See 42 U.S.C. § 12111(3); 29 C.F.R. § 1630.14(b)(2); Chevron U.S.A Inc. v. Echazabal, 536 U.S. 73, 78 (2002) (noting that an employer may screen out a potential worker with a disability if he poses a risk on the job to his own health or safety). Mr. Taylor challenges the necessity of Defendant's "worldwide availability" requirement, noting that the State Department does not require all current, in-service FSOs to be worldwide-available.
The State Department stresses worldwide availability as a hiring criterion for all FSOs, based on Section 504(a) of the Foreign Services Act of 1980, the legislative history of the Foreign Services Act whereby the House Committee on Foreign Affairs specified that "availability for worldwide assignment must be clearly expressed and understood as a basic requirement for admission to the Foreign Service . . .," and the practical difficulties of staffing Foreign Service posts. See Campbell Decl. ¶ 8 ("Given the limited number of Foreign Service personnel and the range of assignments at the large number of hardship posts which must be filled, service at hardship posts is one of the inescapable aspects of a Foreign Service career.").
"Career members of the Service shall be obligated to serve abroad and shall be expected to serve abroad for substantial portions of their careers." 22 U.S.C. § 3984(a) (emphasis added); see id. § 3901(a)(4) ("members of the Foreign Service should be . . . available to serve in assignments throughout the world" (emphasis added)).
However, a large number of FSOs are not available for worldwide service because the State Department commonly accommodates the disabilities and other personal limitations of its employees. Burleigh Decl. ¶ 26. About 15 percent of all FSOs currently serve with Class II clearance, meaning that they cannot serve at 100% of posts worldwide. See Pl.'s Opp., Declaration of William R. Mullican ("Mullican Decl.") ¶ 3. When an FSO has a Class 1 clearance but has a family member with limiting medical needs, the State Department also generally accommodates those needs by placing the FSO at a limited number of posts. Mullican Decl. ¶ 3; Brown Dep. at 24-25; Burleigh Decl. ¶¶ 30-31. The State Department also tries to accommodate those FSOs who are unable to take worldwide assignments because of personal circumstances, such as divorce proceedings, caring for an elderly parent, or obtaining special education for a child. Campbell Dep. at 88-89. "All told, between one-quarter and one-third of in-service FSOs at any given time are not available for service at 100 percent of worldwide posts." Pl.'s Opp. at 23 (citing Burleigh Decl. ¶ 26).
Based on the State Department's own practices, which allow significant numbers of in-service FSOs to continue to serve despite temporary or permanent changes in their situations that render them unavailable for worldwide assignment, Mr. Taylor argues that Defendant does not, in fact, treat 100% worldwide availability as an essential job function. While the Court agrees that the State Department does not treat 100% worldwide availability as an essential job function, the Court does find that Defendant has demonstrated that reasonable availability worldwide is indeed an essential function of employment as an FSO.
Essential job functions are the fundamental duties of the employment position that "bear more than a marginal relationship to the job." Kalekiristos v. CTF Hotel Mgmt. Corp., 958 F. Supp. 641, 660 (D.D.C. 1997) (citing Amarigilio v. Nat'l R.R. Passenger Corp., 941 F. Supp. 173, 178 (D.D.C. 1996)). "Courts defer `to the employer's judgment as to what functions of a job are essential.'" Id. (citations omitted); see Swanks v. Wash. Metro. Area Transit Authority, 179 F.3d 929, 934 (D.C. Cir. 1999) ("[I]f an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job."). Some of the factors that courts evaluate in determining whether a job function is "essential" include the amount of time that is required to perform the function; the consequences of not requiring that such function be performed; and whether current and former employees holding the same position performed the function. See Baker v. Potter, 294 F. Supp. 2d 33, 43 (D.D.C. 2003); Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1101 (S.D. Ga. 1995).
First, by virtue of the very title of the position, it is axiomatic that a Foreign Service Officer is required to spend a significant amount of time working abroad. Defendant accurately notes that acceptance into the Foreign Service requires acceptance of worldwide assignments, including work in hazardous locations. Def.'s Mot. at 6; see also Campbell Decl. at 8 ("[g]iven the limited number of Foreign Service personnel and the range of assignments at the large number of hardship posts which must be filled, service at hardship posts is one of the inescapable aspects of a Foreign Service Career.").
Second, the State Department has legitimate concerns about the consequences of waiving the worldwide availability requirement with respect to Mr. Taylor. The State Department contends that if it were required to waive this requirement for Mr. Taylor, it would ultimately be required to do so with respect to all applicants who are not available worldwide, which "would, over time, dramatically shrink the pool of Foreign Service Officers that is available for worldwide assignment." Def.'s Mot. at 40-41. The effect that the waiver of the worldwide availability requirement would have on the Foreign Service's ability to fill its staffing needs at hardship posts supports the notion that such a requirement is an essential job function. See Kalekiristos, 958 F. Supp. at 660 ("A function may be considered essential for several reasons, including . . . the fact that there are a limited number of employees among whom the performance of the function can be distributed.") (citations omitted).
Mr. Taylor insists that the fact that not all current FSOs are required to be 100 % worldwide available effectively precludes worldwide availability from being an "essential job function." See Pl.'s Opp. at 24. He contends that the factual inquiry into "`whether a job requisite is essential' includes determining `whether an employer actually requires all employees in the particular position to perform the allegedly essential function.'" Id. at 21 (citing Milton v. Schrivner, Inc., 53 F.3d 1118, 1124 (9th Cir. 1995)); see also Hamlin v. Charter Township of Flint, 165 F.3d 426 (6th Cir. 1999) ("Although an employer may establish minimum physical standards or qualifications for a position, `it will have to show that it actually imposes such requirements on its employees.'") (citing 29 C.F.R. 1630.2(n)). The Court agrees that whether employees actually perform a job function certainly bears on whether that particular function is "essential," but this factor is not solely determinative. See generally Swanks, 179 F.3d at 934 (noting that there are several factors to be weighed in determining whether a job function is essential); Baker, 294 F. Supp. 2d at 43-44 (same); Haysman, 893 F. Supp. at 1101 (same).
Mr. Taylor advances an all-or-nothing proposition: if the State Department does not require every in-service FSO to have worldwide availability, it cannot require FSO candidates to have 100% worldwide availability. This argument mis-states the point. Assuming arguendo that the State Department's flexibility with in-service FSOs would doom a requirement that FSO candidates have 100% worldwide availability, Mr. Taylor's case still lacks force. Congress has clearly indicated that FSOs must be able to serve in countries around the globe, especially hardship posts. The State Department is on solid grounds when it notes the burden to its assignment process as senior FSOs become less than wholly-available. If the State Department cannot insist on 100% worldwide availability — a figure it does not mention and that its waiver appeal process undercuts — it can clearly insist on some lesser, but reasonable, level of worldwide availability for all FSO candidates. Yet Mr. Taylor was not, in 2002, even reasonably available for overseas assignments because somewhere between 32% and 50% (or more) of overseas posts could not accommodate his medical condition. Worldwide availability "bears more than a marginal relationship" to employment as an FSO and, at a minimum, some reasonable level of worldwide availability is an essential function of the job. See Kalekiristos, 958 F. Supp. at 660 (citation omitted). Because he was not reasonably available for overseas hardship assignments, Mr. Taylor could not fulfill an essential function of the job of FSO.
The State Department's accommodations for current FSOs sound in logic because "if you lose an officer after 15 years, you're losing 15 years of developed expertise and skill, demonstrated expertise and skill." Campbell Dep. at 114; see Barth, 2 F.3d at 1189 (noting that agencies derive benefits "from accommodating the special needs of existing employees, which they do not gain from serving those of applicants").
Mr. Taylor's lack of availability for hardship posts would bear a larger percentage and be more difficult for the State Department. Because it adjusts assignments for in-service FSOs who develop medical and personal limitations, the State Department is especially dependent on more junior FSOs to serve in hardship locations.
B. Would Mr. Taylor's Service at Hardship Posts Pose a Direct Threat to Himself?
An employer may escape liability under the Rehabilitation Act if it can establish that the employee poses a direct threat to himself or others in the workplace. See Echazabal, 536 U.S. at 86-87. A disabled employee poses a "direct threat" to himself if he faces "a significant risk" to his own health or safety "that cannot be eliminated by reasonable accommodation." 42 U.S.C. § 12111(3). "Because few, if any, activities in life are risk free, [the Rehabilitation Act does] not ask whether a risk exists, but whether it is significant." Bragdon v. Abbot, 524 U.S. 624, 649 (1998) (citation omitted). In determining whether an individual poses a direct threat to himself, an "individualized assessment of the individual's present ability to safely perform the essential functions of the job" must be conducted. Echazabal, 536 U.S. at 86; see 29 C.F.R. § 1630.2(r)). The determination "must be `based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence'" and not on generalizations. Echazabal, 536 U.S. at 86 (citing 29 C.F.R. § 1630.2 (r)).
Mr. Taylor argues that his medical history demonstrates that he can serve at most Foreign Service posts, including hardship posts, around the world. See Pl.'s Opp. at 29-30. His primary care physician attests that "[b]ecause of his strong immune system and his long history of excellent health, Mr. Taylor faces no greater health risk in areas with substandard health care than individuals who are not HIV-positive." Pl.'s Opp. at 29 (citing Ward Decl. ¶ 18). Dr. Ward advises that he believes Mr. Taylor can maintain his health with only two diagnostic check-ups each year and suggests that he would be able to monitor Mr. Taylor's health from a distance if need be. See Ward Decl. ¶ 17.
Mr. Taylor also attacks the medical concerns expressed by the State Department as being based on broad generalizations unrelated to his particular HIV infection. He states that many of the diseases identified by the State Department, such as diarrhea and tuberculosis, are risks for non-HIV-positive individuals as well and that the "rare pathogens that may have more significant effects on people with HIV are both easily diagnosable and easily treatable in people with healthy immune systems." Pl.'s Opp. at 31. He asserts that his immune system is not compromised by its HIV infection and he can take all recommended vaccines and prophylactic medications such as antimalarial drugs. Id. Similarly, he argues that the State Department's concerns about the potential toxicity of his HIV medications are exaggerated and not person-specific to his circumstances. Id. at 31-32.
The Court disagrees that the State Department has not been person-specific in its analysis of Mr. Taylor's health status and the risks if he served in numerous overseas posts. Mr. Taylor has reported that he was on Viread (tenofovir), Viramune (nevirapine), and Siagen (abacavir). Brown Decl. ¶ 19.
Viread is associated with lactic acidosis and renal failure, which can potentially kill an individual if the medication is not quickly adjusted. Brown Declaration, ¶ 19. Viramune is associated with liver toxicity and decreased blood cell counts. Id. . . . Plaintiff requires ready access either to an infectious disease specialist or an internist who is experienced with treating HIV patients and is familiar with these medications. Brown Declaration, ¶ 20. Also, if plaintiff ever required other medications for other medical conditions, only a physician familiar with antiretroviral drugs would know what medications can be taken in combination with these drugs. Id.
Def.'s Mot. at 29 (some citations omitted) (emphasis added). Neither Mr. Taylor nor his experts contest these facts; they argue only that the State Department puts too much emphasis on them.
The Court does not need to resolve these issues, however, because certain core healthcare requirements for HIV-infected individuals are undisputed, including the need for Mr. Taylor to receive regular, periodic measurements of both his viral load and his CD4+ cell counts. The fact remains that a large number of Foreign Service posts overseas cannot provide Mr. Taylor the level of care and monitoring that is required for HIV-infected individuals in accordance with HHS Guidelines. Mr. Taylor concedes that at least 32% of overseas posts in 2002 could not provide local diagnostic monitoring; MED relied on its Post Capabilities Database to determine that over half of all overseas posts lacked essential personnel or laboratory facilities. Thus, if Mr. Taylor were to be employed as a Foreign Service Officer, there would be at least 32% (or up to 50%) of hardship posts to which he could not be assigned without posing a significant risk to his own health and safety.
Dr. Ward's opinion that Mr. Taylor might submit to such monitoring only twice a year cannot overcome the State Department's legitimate reliance on the HHS Guidelines, which recommend such testing every three months. See Bragdon, 524 U.S. at 650 (noting that "the views of public health authorities . . . are of special weight and authority.").
For its analysis, the Court relies on Mr. Taylor's concession that at least 32% of overseas posts in 2002 lacked experienced medical personnel and/or laboratories because he is entitled to all inferences in his favor. This reliance, based on the legal posture of the case, does not decide in any way that the State Department's estimate was incorrect when it determined that more than 50% of its overseas posts lacked medical resources to treat HIV infection. This is a difference of fact between the parties that is not material to the result and can be left unresolved.
C. Are Mr. Taylor's Proposed Accommodations Reasonable?
A disabled employee only poses a "direct threat" if the significant risk of harm to himself or others cannot be eliminated by "reasonable accommodations" by the employer. See 42 U.S.C. § 12111(3). In Barth v. Gelb, the D.C. Circuit noted that "a reasonable accommodation is one employing a method of accommodation that is reasonable in the run of cases. . . ." 2 F.3d at 1187. Reasonable accommodations may include, but are not limited to: "(i) Making facilities readily accessible to and usable by individuals with handicaps; and (ii) Job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions." Carr v. Reno, 23 F.3d 525, 529 (D.C. Cir. 1994) (citing 29 C.F.R. § 1614.203(c)); Chinchillo v. Powell, 236 F. Supp. 2d 18, 24 (D.D.C. 2003). Despite the high level of accommodation the Rehabilitation Act requires, federal employers need not make accommodations that "would impose an undue hardship on the operations of its programs." Chinchillo, 236 F.Supp. 2d at 23 (citations omitted).
Mr. Taylor insists that any perceived threat concerning his safety can be eliminated if the State Department reasonably accommodates his HIV-positive status by either "(1) providing Class II clearance and working with him to ensure appropriate placement or (2) granting him flexible travel time for routine medical monitoring." Pl.'s Opp. at 35. For the reasons set forth below, the Court finds that both of Mr. Taylor's proposed accommodations are unreasonable.
1. The State Department's Waiver of the Worldwide Availability Requirement is not a Reasonable Accommodation.
First, Mr. Taylor contends that the State Department can reasonably accommodate him "by granting him Class II medical clearance and placing him at those posts where adequate HIV care is available." Pl.'s Opp. at 36. He argues that such an accommodation, which would essentially waive the worldwide availability requirement with respect to him, is reasonable in light of the State Department's current practice of granting Class II clearance to in-service FSOs who develop medical or family issues that may prevent them from traveling to certain posts. This argument must fail.
As discussed at length above, reasonable availability worldwide is an essential job function required by the very nature of FSO jobs. Mr.Taylor is, admittedly, not available for approximately one-third (or 84) of the overseas postings. Such a reduction of his ability to serve in foreign locations is not reasonable for employment at a worldwide agency. A proposed accommodation that requires the employer to waive an essential function of the job is not a "reasonable" accommodation. Robertson v. Neuromedical Center, 161 F.3d 292, 295 (5th Cir. 1998) ("the ADA does not require an employer to relieve the employee of any essential functions of the job [or] modify the actual duties. . . ."); 29 C.F.R. Pt. 1630, App. (Background) (noting that the ADA "does not relieve a disabled employee or applicant from the obligation to perform the essential functions of the job"); see also Chinchillo, 236 F. Supp. 2d at 24; Carr, 23 F.3d at 530. That the State Department does not fire current FSOs who become unavailable for worldwide service does not create an obligation to hire and accommodate applicants who, because of their disabilities, are not worldwide-available. See Barth, 2 F.3d at 1189 (rejecting the plaintiff's argument that the defendant agency's medical accommodation of current employees requires it to extend the same accommodation to applicants).
2. Allowing Mr. Taylor to Travel Periodically for Routine Medical Monitoring is Not a Reasonable Accommodation.
Alternatively, Mr. Taylor argues that the State Department can accommodate him by allowing him to travel periodically for routine medical monitoring. He insists that he would only need to "take short leave two or three times per year to visit cities known to provide quality HIV care . . . for approximately one day at a time." Pl.'s Opp. at 38. However, Mr. Taylor's proposed accommodation rests on fewer routine tests than recommended by the HHS Guidelines and the State Department is not required to accept his doctors' forecasts and estimates over the public health agency that sets standards for the entire country. See Bragdon, 524 U.S. at 650. Quarterly testing is required because things can change or go wrong with the combination of medications used to combat the HIV infection. In fact, Mr. Taylor's own experts agree with the HHS Guidelines concerning quarterly testing, but suggest that Mr. Taylor could deviate from them. The Foreign Service is not required by the Rehabilitation Act to permit Mr. Taylor to put himself in that jeopardy.
Even if the Court were to accept Mr. Taylor's conservative estimate concerning how much travel time he would need to receive the appropriate treatment, it cannot be said that allowing an employee to miss several days to obtain medical care in another city or country at the government's expense is a reasonable accommodation. See generally Carr, 23 F.3d at 630 ("an essential function of any government job is an ability to appear for work. . . ."). In addition, the proposed accommodation contravenes the State Department's prohibition against authorizing FSOs to travel for routine medical examinations and immunizations. See Def. Reply at 23 (citing 3 FAM 686.1-4). One of the reasons for this prohibition is that MED considers it unsafe to post individuals in locations where they cannot locally receive routine medical care. Id. An accommodation that undermines the State Department's policies, which were created based on legitimate concerns for the safety of its employees, is not reasonable. Allowing Mr. Taylor to be stationed in areas in which he cannot locally receive treatment, and allowing him to travel internationally to obtain such treatment on a regular basis, cannot be deemed "a method of accommodation that is reasonable in the run of cases." Barth, 2 F.3d at 1187 (emphasis omitted).
D. Has the State Department Shown That Accommodating Mr. Taylor's Disability Would Pose An Undue Hardship?
Even assuming that Mr. Taylor's proposed accommodations were reasonable, the State Department has demonstrated that making such accommodations would impose undue burdens on the Foreign Service. Under the Rehabilitation Act, "a federal agency must make `reasonable accommodation to the known physical or mental limitations of an applicant or employee who is a qualified individual with handicaps, unless the agency can demonstrate that the accommodation would impose an undue hardship on the operations of its program.'" Chinchillo, 236 F. Supp. 2d at 23 (citing Carr, 23 F.3d at 528-29). In determining whether an accommodation would impose an undue burden, factors to be considered include, but are not limited to, the nature and the cost of the accommodation. 29 C.F.R. § 1613.704(c)(3).
Whether a proposed accommodation is reasonable and whether a proposed accommodation imposes an undue burden are generally two separate inquiries, but the analysis often overlaps. See School Bd. of Nassau County v. Arline, 480 U.S. at 288 n. 17 ("Accommodation is not reasonable if it imposes undue financial and administrative burdens. . . .") (internal citations omitted); Barth, 2 F.3d at 1187 (noting that a proposed accommodation that is costly or requires the employer to fundamentally alter its operations is both unreasonable and imposes an undue burden); Chinchillo, 236 F. Supp. 2d at 24 (finding plaintiff's proposed accommodations unreasonable where such accommodations would have imposed undue hardships on the defendant).
The D.C. Circuit's decision in Barth v. Gelb is directly relevant to analyzing whether the State Department has demonstrated that it cannot accommodate Mr. Taylor's HIV infection without undue hardship. Barth involved a Foreign Service candidate who failed the medical clearance examination for worldwide availability due to advanced diabetes, which required "locations with advanced medical facilities" for care and treatment. Barth, 2 F.3d at 1182. Mr. Barth sought to work as an engineer at a suitable overseas radio relay station operated by the Voice of America ("VOA"), an agency within the State Department and his direct employer. Id. He argued that VOA makes special accommodations for in-service employees with medical problems or those with children who have particular needs. Id. at 1189.
From this, he argue[d] that (1) if such limitations on the assignment of an existing employee do not create an undue hardship, similar restrictions on the assignment of an applicant will not do so; and (2) if the VOA restricts the assignments of a current employee for medical or family reasons, it must be equally willing to restrict the assignment of a handicapped applicant.Id. This argument parallels the contentions of Mr. Taylor before this Court. Pl.'s Opp. at 23 ("In light of the admitted reality that [in-service] FSOs need not be available to serve at 100 percent of the Department's posts, the Department cannot hide behind the language of the Foreign Service Act to justify its refusal to hire an otherwise qualified disabled individual like Mr. Taylor."). However, Barth teaches that the accommodations a government agency offers to existing employees may be relevant, but certainly not determinative, of whether similar accommodations must, as a matter of law, be offered to applicants.
These arguments overlook the benefits that agencies derive from accommodating the special needs of existing employees, which they do not gain from serving those of applicants. A willingness to accommodate incumbent employees increases the likelihood that they — and their knowhow — will be retained by the employing agency. . . . It will also contribute to employee morale and, presumably, to productivity. Thus there is economic logic as well as moral truth behind the intuition that distinguishes between "family" and "stranger" and the level of obligation owed to each. . . . An agency is entitled both to take the measure of the burden imposed by an accommodation net of its benefits and to take account of the duty of care, whether legal or not, that is owed employees who develop problems while on the job.Barth, 2 F.3d at 118 9. Thus, the fact that the Foreign Service is able to accommodate the medical and personal situations of its in-service FSOs but refuses to accommodate the medical disabilities of FSO candidates does not alone constitute discrimination within the meaning of the Rehabilitation Act. Id. ("Accordingly, we decline to find that the disparate treatment Mr. Barth complains of constitutes handicap discrimination within the meaning of the Act.").
The remaining question is whether the State Department has demonstrated that accepting Mr. Taylor into the Foreign Service, despite his inability to serve in many hardship posts around the world, would impose an undue hardship. Mr. Taylor's first proposed accommodation — that the State Department grant him medical clearance so that he will only be stationed at posts that have proper care — would unquestionably impose an undue burden. The inevitable impact of such an accommodation would be a de facto elimination of worldwide availability as a pre-requisite for all similarly-situated entry-level FSOs. See Def. Reply at 20 n. 13 (waiving the worldwide availability requirement "would over time[,] dramatically shrink the pool of FSOs available for worldwide assignment, which would, in turn, unduly burden defendant's ability to station FSOs in designated hardship posts.").
Hiring FSOs who cannot serve in at least one-third of the hardship posts in the world would create undue burdens for a system that tries to equalize the pain of hardship locations among its officers. Mr. Taylor would enjoy significantly-beneficial treatment because of his disability if the Foreign Service were required to post other FSOs to these least-desirable and most-dangerous locations in his stead. The impact of allowing Mr. Taylor and other similarly-situated individuals to forego the worldwide availability requirement would ultimately result in the State Department having to change the very nature of its program. See Def.'s Mot. at 40-41. This the law does not require. See Barth, 2F.3d at 1187 (an accommodation is both unreasonable and will impose an undue burden "if it either imposes undue financial and administrative burdens on [an agency] or requires a fundamental alteration in the nature of [its] program." (citing School Bd. Of Nassau County v. Arline, 480 U.S. 273, 287 n. 17 (1987)).
It is worth remembering that the decisions under review were made in January and July 2002. Mr. Taylor presents some evidence that the worldwide availability of appropriate medical resources to treat HIV-infected persons has improved, and is improving. That evidence is irrelevant to this case although it might at some point reduce the number of hardship posts without such medical resources to a number that would sensibly require the State Department to accommodate an otherwise-qualified FSO candidate who is HIV-positive and presents a longterm stable history with the infection.
Mr. Taylor's second proposed accommodation — that he be allowed to leave his post as necessary to visit a city where proper monitoring of his condition can be performed — also does not overcome the State Department's showing of undue burden. First, the need is not only that an HIV-positive FSO receive quarterly monitoring and blood work, but also that he have access to physicians who know how to treat other diseases or illnesses to which he might fall prey (whether in the normal course of life or because of his hardship location) in combination with his HIV medications. To implement Mr. Taylor's proposed accommodation, the State Department would have to continually enlist other FSOs to fulfill his duties during the days or weeks that he would need to miss work to receive medical attention. Carrying such a burden is beyond the scope of Defendant's obligations under the Rehabilitation Act. See Robertson, 161 F.3d at 295 ("the ADA does not require an employer to reassign existing employees or hire new employees to perform [plaintiff's] duties.").
Furthermore, to allow Mr. Taylor and, as a result, other similarly-situated individuals, to travel to receive medical care on the government's dime would impose a large financial burden on the State Department. See Def. Reply at 23-24. In addition to the economic burden, the State Department would have to change its current medical policy, which prohibits employees from traveling out of the country at government expense for routine medical examinations or to receive routine immunizations. Id. at 23. The State Department is not required to assume significant costs or to fundamentally alter the nature of its medical program to accommodate Mr. Taylor. See Nassau, 480 U.S. at 288 n. 17; Southeastern Cmty. Coll. v. Davis, 442 U.S. 397, 410 (1979).
Therefore, the Court concludes that the State Department has demonstrated that not only are Mr. Taylor's proposed accommodations unreasonable, but such accommodations "could [not] have been provided `without impos[ing] an undue hardship on the operations of its program.'" Chinchillo, 236 F. Supp. 2d at 26 (citing Carr, 23 F.3d at 528)).
IV. CONCLUSION
For the reasons stated, the State Department's motion for summary judgment will be granted. Given the Court's ruling on Mr. Taylor's claim based on his HIV status, it is unnecessary to decide whether his asthmatic condition would have also precluded his hiring into the Foreign Service.A memorializing order accompanies this memorandum opinion.