Athanasios T. Bitsas, Complainant,v.Hillary Rodham Clinton, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionSep 30, 2009
0120051657 (E.E.O.C. Sep. 30, 2009)

0120051657

09-30-2009

Athanasios T. Bitsas, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.


Athanasios T. Bitsas,

Complainant,

v.

Hillary Rodham Clinton,

Secretary,

Department of State,

Agency.

Appeal No. 0120051657

(formerly 01A51657)

Agency No. DOSF03204

DECISION

On December 8, 2004, complainant filed an appeal from the agency's

November 10, 2004, final decision (FAD) concerning his equal employment

opportunity (EEO) complaint alleging employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely

and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following

reasons, the Commission REVERSES the agency's final decision.

ISSUE PRESENTED

Whether the evidence of record supports the agency's conclusion that

it did not violate the Rehabilitation Act when it denied Complainant

employment as a Junior Officer in the Foreign Service by failing to

provide him medical clearance based on its "world-wide availability"

requirement.

BACKGROUND

The record reveals that complainant applied for a Junior Officer

position with the Foreign Service in 2002. On November 20, 2002,

the day he passed the Oral Assessment, complainant received a letter

from the Foreign Service Board of Examiners containing a conditional

offer of employment. Report of Investigation (ROI), Ex. E-7, at 2.

The letter indicated that, among other requirements, complainant would

have to undergo a medical examination and obtain a Class 1 medical

clearance before he could be placed in the position at issue. Id.

As part of the medical clearance process, complainant provided his own

written comments about his past medical history, as well as a copy of the

record from a crisis center where he had been treated briefly in 1996.

See Id., Ex. E-8, at 2. Complainant also submitted a report dated

April 17, 2003 from a psychiatrist who had treated him in the past.

See Id., Ex. E-8, at 3-4. In his report, the psychiatrist indicated

that his initial diagnostic impression of complainant had been that he

had Bipolar Disorder, but that at his recent appointment in April 2003

complainant's "affect was bright and stable."1 Id. The psychiatrist

noted in the report that his current diagnoses of complainant were

"Dysthymia" and "Personality Disorder." Id. He also wrote in the

report that complainant was no longer taking medication and no longer

needed it. Id. P1 also stated, "I have no concerns with [complainant]

representing the United States overseas." Id.

The agency's Office of Medical Clearances subsequently gave complainant

a Class 5 Clearance, based on their finding that he was not "worldwide

available." ROI, Ex. E-7, at 20. That is, the agency deemed complainant

not cleared for assignment abroad, and, therefore, he was not given a

firm employment offer to join the Foreign Service. Id. In a letter

dated September 23, 2003, the agency informed complainant that he had

the right to request a "waiver" (Class 2 Clearance) of the medical

clearance requirement. Id., at 22. The letter stated that a waiver

would be granted only if it was found to be in the best interest of

the Service. Id. Complainant applied for a waiver of the worldwide

availability standard, asserting that his extraordinary skills and

qualifications were needed by the Service. Id., at 27. By letter dated

February 24, 2004, the Deputy Assistant Secretary for Human Resources

denied complainant's waiver request. Id., at 31.

PROCEDURAL HISTORY

Believing he was a victim of discrimination, complainant contacted an EEO

Counselor and filed a formal EEO complaint on March 9, 2004, alleging

that he was discriminated against on the basis of disability (regarded

as disabled) when the agency denied him an appointment as a Junior

Officer in the Foreign Service. At the conclusion of the investigation,

complainant was provided a copy of the report of investigation and notice

of his right to request a hearing before an EEOC Administrative Judge

(AJ). In accordance with complainant's request, the agency issued a

final decision pursuant to 29 C.F.R. � 1614.110(b).

FINAL AGENCY DECISION

The FAD, dated November 10, 2004, initially found that complainant did

not establish that, at the relevant time, he had an actual disability, a

record of a disability, or was regarded as disabled by agency officials.

The FAD nevertheless assumed arguendo that complainant was an individual

with a disability pursuant to the Rehabilitation Act and noted that it

is complainant's burden to establish that he is a "qualified" individual

under the Act. The FAD stated "in this case that means that he is able

to meet the standards of a Class 1 medical clearance." FAD, at 21.

The FAD concluded that complainant has failed to meet his burden on

this issue as agency officials had determined that only 34% of posts

would be able to provide adequate medical care for complainant if he

were to relapse. The FAD further found that other than complainant's

testimony, there was no witness testimony or evidence that the agency's

actions were motivated by discriminatory bias. The FAD concluded that

no violation of the Rehabilitation Act had occurred in this instance.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the FAD improperly found that he was

not subjected to disability-based discrimination relative to the agency's

failure to hire him as a Junior Officer. Complainant argues that agency

personnel regarded him as disabled, i.e., that the agency's failure to

grant him a medical clearance for the position was based upon agency

personnel's false assumptions and prejudices about his mental health.

Complainant also asserts that the agency did not complete an adequate

medical background investigation in his case. Complainant asks the

Commission to reverse the FAD.

In response, the agency contends that the record is devoid of evidence

that complainant was regarded as disabled by agency officials. The

agency asserts that assuming arguendo that complainant could establish

coverage under the Rehabilitation Act, he fails to establish that he

is "qualified" because he is not "worldwide available," which is a

"job-related requirement" for the Junior Officer position. The agency

states that the decision not to hire complainant was based on agency

personnel's finding that record evidence indicates there is a reasonable

likelihood that he may require contacts with mental health professionals

in the future, along with the fact that the availability of appropriate

emergency medical treatment was very low (34%) in the posts overseas

should such a relapse occur. The agency additionally asserts that

there is no evidence that the agency officials' actions were motivated

by discriminatory animus toward complainant. The agency requests that

we affirm the FAD.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

As a threshold matter in a case of disability discrimination,

complainant must demonstrate that he is an "individual with a disability."

An individual with a disability is one who: (1) has a physical or mental

impairment that substantially limits one or more major life activities2;

(2) has a record of such an impairment; or (3) is regarded as having

such an impairment. 29 C.F.R. � 1630.2(g). The Commission has defined

"substantially limits" as "[u]nable to perform a major life activity

that the average person in the general population can perform" or

"[s]ignificantly restricted as to the condition, manner or duration

under which an individual can perform a particular major life activity as

compared to the condition, manner, or duration under which the average

person in the general population can perform that same major life

activity." 29 C.F.R. � 1630.2(j)(1)(i) and (ii). Factors considered in

determining whether an individual is substantially limited in a major

life activity include: the nature and severity of the impairment; the

duration or expected duration of the impairment; and the permanent or

long-term impact, or the expected permanent or long-term impact of or

resulting from the impairment. 29 C.F.R. � 1630.2(j)(2).

Actual Disability or Record of Disability

In this case, complainant has not shown that he is an "individual

with a disability" because of having an actual disability, under prong

(1), or a "record of" a disability, under prong (2). In so finding,

we note initially that the EEO investigator asked complainant if he

considered himself a person with a disability, to which he responded

negatively. See ROI, Ex. E-1, at 4. Complainant also testified

that in his lifetime he has had only two episodes of "minor blues"

which were relatively short and six years apart. See id., Ex. E-2,

at 6. Complainant explained that the episodes were both "situational"

rather than medical in nature, triggered by specific stressors/depressing

incidents in his life (the death of his father, a feeling of hopelessness

because of not finding suitable employment, etc.). See id., at 2.

When he voluntarily checked into a Crisis Center for approximately 5

days in 1996, he was permitted to leave during the day, returning only

at night for observation. See id., Ex. E-7, at 8. Complainant states

that he was given medication, which he took for one month, and then he

took another type of medication for an additional month. Id., Ex. E-7

at 8. As to the 1996 episode, the duration of any limitation on a major

life activity was relatively short-term, lasting at most for two months.

"An impairment is substantially limiting if it lasts for more than several

months and significantly restricts the performance of one or more major

life activities during that time . . . In addition, some conditions

may be long-term, or potentially long term, in that their duration

is indefinite and unknowable or is expected to be at least several

months. Such conditions, if severe, may constitute disabilities." EEOC

Enforcement Guidance on the Americans with Disabilities and Psychiatric

Disabilities (March 25, 1997) at question 7.

In 2002, complainant stated he felt depressed and scheduled appointments

with a psychiatrist once monthly. He took medication for five months

(until it gave him a skin rash), and then he took another medication for

one month. See ROI, Ex. E-2 at 1. Even if this episode which lasted no

more than 6 months were considered long-term in duration, the record does

not suggest that any limitation that may have existed on complainant's

major life activities, was severe in nature during this time period.

Specifically, there is no evidence that complainant was significantly

restricted as compared with most people in the population, in his ability

to interact with others or care for himself for those 5 to 6 months.

In addition, at the time of the relevant actions in this case,

complainant's psychiatrist described complainant's affect as "bright

and stable" and confirmed that he did not currently take or require any

medication or care. ROI, Ex. E-8, at 3-4. Finally, the FAD itself

concludes that "[a] review of Complainant's statement indicates an

absence of sufficient testimony to conclude that a major life activity

has been substantially limited by the Complainant's mental or physical

conditions." FAD, at 18. Based on this record, the Commission is not

persuaded that complainant had an impairment or a record of an impairment

which was substantially limiting when active or very likely to recur in

a substantially limiting form.

"Regarded As" Disabled

If an individual is "regarded as having such an impairment" he or she

has a physical or mental impairment that does not substantially limit

major life activities but is treated by a covered entity as constituting

such limitation; has a physical or mental impairment that substantially

limits major life activities only as a result of the attitudes of others

toward such impairment; or does not have an impairment but is treated

by a covered entity as having a substantially limiting impairment. 29

C.F.R. � 1630.2(1).

As explained, complainant in this case was not actually disabled

at the relevant time. Complainant expressly contends however, that

agency officials regarded him as disabled because of their prejudgment

and misinformation. We agree that the agency regarded complainant as

having one or more chronic impairments which, if they were to relapse,

would substantially limit his ability to care for himself and to interact

with others. We base this finding, in part, on the following evidence in

the record: The Director of Mental Health Services (DMH) specifically

stated that in concluding that complainant was not medically cleared,

"mental health issues were the determinative factor." ROI, Ex. E-4, at 3.

In his affidavit, DMH cited to complainant's initial diagnosis, in July

2002, of Bipolar Disorder which had changed to a diagnosis of Dysthymia

and Personality Disorder after about six months of treatment (at the end

of December 2002). Id., at 3-4. DMH stated in his affidavit: "Dysthymia

is a form of depression that tends to be chronic and recurring in nature

but with less severe symptoms than major depression. Personality

disorder NOS suggests the presence of an enduring pattern of inner

experience and behavior that deviates markedly from the expectations of

the individual's culture and is both inflexible and pervasive across a

broad range of personal and social situations. The enduring pattern

leads to clinically significant distress or impairment in social,

occupational, or other important areas of functioning. It is a very common

condition." Id. DMH also cited to the 1996 Report from the Crisis Center

where complainant was treated for approximately 5 days, where he was

assessed at a level of functioning of 51/100, where 51-60 was the range

of "moderate functioning." Id., at 2. DMH indicated that complainant

"was at the bottom of the moderate range and very close to the serious

range." Id. In addition, DMH stated "... I see no evidence of psychosis

in [complainant's] medical records, but I definitely see a significant

affective disorder combining personality disorder and mood fluctuations

with a history of major depressive episodes. He seems to have recovered

to some extent, but with his history, it is to be expected that he would

be prone to relapse." Id., at 4. DMH further referred to his impression

that complainant had been admitted to the Crises Center with a history

of recurrent Major Depression episodes. Finally, DMH stated: "It is

well established in psychiatric medicine that the conditions diagnosed

in [complainant] are prone to relapse, particularly under stress.

Stress is likely to exacerbate his conditions or cause a relapse into

another Major Depressive episode or episodes. The worse the stress, the

more likely it is that the patient will suffer recurrence of the same

symptoms, or suffer symptoms even more severe than in the past." Id.

These statements support a conclusion that DMH regarded complainant as

having impairments which, upon relapse, would substantially limit his

ability to care for himself and/or interact with others.

Additionally, the Nurse Practitioner who is also Chief of Medical

Clearances (CMC)3 stated in her declaration, "The undated memo prepared

for the [Employment Review Committee] meeting of February 19, 2004 (the

ERC Memo) states that [complainant] has two chronic psychiatric conditions

which are prone to relapse and that if he relapsed he would require

medication and emergency treatment and follow-up by a psychiatrist."

ROI, Ex. E-3, at 4. The ERC Memo also recited some of complainant's

history including his one-time diagnosis of Bipolar Disorder in July

2002 and Dysthymia and his hospitalization in 1996. Id., Ex. E-8,

at 1. CMC, although admitting she never met complainant and did not

remember his specific case, clearly regarded complainant as having two

impairments which substantially limited his ability to care for himself

and/or interact with others.

In addition, complainant stated that in approximately July, 2003, a

nurse in the Office of Medical Clearances, called him, yelled at him,

told him he was lying and making things up, and accused him of having

"holes" in his story because in the initial application he had indicated

that he was on medication. See ROI, E-1, at 6. The record shows that in

November, 2002, when he first filled out the application, complainant had

indicated on a form that he was taking medication. Complainant explains

that in 2003, the nurse refused to believe that he was no longer taking

any medication. Id. He stated that he explained to her that in the past

he had experienced "stressors" (upsetting life circumstances which led

him to seek treatment) but that currently he was neither afflicted with

any psychiatric ailment nor taking any medication. Complainant stated

that the nurse apparently could not believe that someone who had in

the past been on medication might no longer need it, and according to

complainant, asked him for documentation to this effect. In the record

before us, the nurse did not refute complainant's contentions about these

conversations. We find that the nurse regarded complainant as somebody

who required medication in order to function normally. Further, we

find that the nurse, undisputedly the only individual complainant ever

spoke with during the medical clearance process, regarded complainant

as having impairments which substantially limited his ability to care

for himself and/or interact with others. Complainant has, therefore,

shown that numerous agency personnel who were involved in denying his

application for employment regarded him as having impairments which

rendered him substantially limited in the major life activities of caring

for himself and/or interacting with others.

Otherwise Qualified

In order to be entitled to protection from the Rehabilitation Act,

complainant must also make the showing that he was a "qualified individual

with a disability." A "qualified individual with a disability" is

an individual with a disability who satisfies the requisite skill,

experience, education and other job related requirements of the employment

position such individual holds or desires, and who, with or without

reasonable accommodation, can perform the essential functions of the

position. 29 C.F.R. � 1630.2(m).

There is no dispute that complainant is otherwise qualified for the

position he sought, i.e., that he met the skill, experience, education

and other job requirements to perform the Junior Foreign Service officer

position, apart from the agency's allegation that he fails to meet its

worldwide availability requirement, which, according to the agency,

is an essential function of the position. The agency contends that the

Equal Employment Opportunity Commission has recognized that availability

for worldwide posting is an essential function of a position within

the Foreign Service.4 The Commission points out, however, that in a

more recent decision, Taylor v. Rice, 451 F.3d 898 (D.C. Cir. 2006),

the court found a genuine dispute of material fact existed as to the

extent to which Foreign Service Officers must be available to serve in

overseas posts, and whether some other, reduced level of availability

could render the plaintiff qualified to serve in the Foreign Service.

Taylor v. Rice, 451 F.3d at 907. The Commission observes that the cases

cited by the agency were individually decided on their own particular

facts, just as we do herein. See Katz v. Department of State, EEOC

Appeal Nos. 0720060024 and 0720060025 (March 26, 2009). In addition,

the Commission notes that the existence of the agency's waiver program

casts doubt on the agency's assertion that world-wide availability is

truly an essential function of the job.

Assuming that the agency correctly asserts that worldwide availability

is an essential function of the position at hand, complainant has

asserted and presented medical evidence that he is in fact available

for positions anywhere in the world. Complainant has functioned well

both while living in and out of the United States5 and has sought and

received appropriate treatment for his condition on the two occasions

when he felt he needed it. The preponderance of the evidence in the

record shows that complainant is medically fit to serve at any post

worldwide. Additionally, we note that the Deputy Assistant Secretary in

the Bureau of Human Resources stated: "According to documents submitted

by . . . [the] Director of Medical Clearances, Department of State,

[complainant] was found not to be worldwide available because he has two

chronic psychiatric conditions which are prone to relapse, he needs to

be posted where there is an English-speaking therapist and a provider to

monitor his medications, and only 34% of the worldwide available posts

would be able to meet his medical needs [emphasis added]." ROI, Ex. E-5,

at 1. The Commission finds that the calculation of 34% of posts being

able to meet complainant's needs cannot be accurate, given complainant's

undisputed testimony that he could communicate with individuals (including

therapists) who speak other languages. He states: "I speak six languages

fluently (including Italian, Greek, French, Spanish and American Sign

Language, in addition to English), and another two well enough to have

basic conversations and meet daily life needs (Japanese and German).

In addition, I have had formal academic course work of a year or more in

another four languages (including Arabic, Mandarin Chinese, Polish, and

Dutch) and (due to my past friendships with Scandinavian natives) can also

read and write Danish and Norwegian; I can speak these six to some extent.

Id., Ex. E-1, at 7. Based on the above, we find that complainant is

"worldwide available" and qualified for the Junior Officer position.

Direct Threat

To the extent that the agency asserts that complainant would pose a

safety risk if placed in the Junior Officer position, the Commission

notes that our regulations permit the agency to deny job assignments

on the basis of disability where such an assignment would pose a direct

threat. See 29 C.F.R. � 1630.2(r). A "direct threat" is defined as a

"significant risk of substantial harm" that cannot be eliminated or

reduced by reasonable accommodation. Interpretive Guidance of Title 1

of the Americans with Disabilities Act, Appendix to 29 C.F.R. Part 1630,

� 1630.2(r); Echazabal v. Chevron U.S.A., Inc. 536 U.S. 73 (2002); 29

C.F.R. � 1630.2(r). Here, we note that complainant has not established

entitlement to reasonable accommodation since he has not shown that

he has an actual disability or a record of a disability. Accordingly,

our inquiry is limited to whether the record indicates that complainant

posed a significant risk of substantial harm.

The issue in finding direct threat is "not...whether a risk exists,

but whether it is significant." Bragdon v. Abbott, 524 U.S. at 649.

A direct threat must be based on an individualized assessment of the

individual that takes into account (1) the duration of the risk, (2) the

nature and severity of the potential harm, (3) the likelihood that the

potential harm will occur, and (4) the imminence of the potential harm.

Interpretive Guidance on Title I of the Americans With Disabilities Act,

Appendix to 29 C.F.R. � 1630.2(r). The individual assessment must be

based on a reasonable medical judgment that relies on the most current

medical knowledge and/or on the best available objective evidence. Id.

A determination of significant risk cannot be based merely on an

employer's subjective evaluation, or, except in cases of a most apparent

nature, merely on medical reports.

In this case, DMH stated: "With [complainant's] history, we would be

concerned that there is a very high risk of significant relapse (or worse)

if he were in a difficult situation. If stress caused a relapse or worse

with [complainant] when he was at a post without appropriate medical

services, the situation could be very serious. He could well suffer

harm himself if we were not able to obtain appropriate medications or

if we were not able to medically evacuated him out of post in a timely

manner." ROI, Ex. E-4, at 5. DMH explained that complainant has a history

of not responding to certain medications and possible non-compliance

with instructions to take medication, see id., at 4, which possibly

explains one reason DMH may have been concerned about complainant not

being able to obtain appropriate medication. However, DMH fails to

explain the basis for thinking that a "serious" situation would result

if complainant could not obtain appropriate medications. In fact, the

record evidence concerning complainant's medical history suggests that

the severity of the potential harm would in fact be low. For instance,

in July 2002, at the height of complainant's second depressive episode,

the psychiatrist reported that he observed in complainant "no aggressive

or impulsive behavior. No suicidality, no homicidality, no psychosis,

no impairment of judgement [sic], no alcohol or drug abuse. No criminal

behavior." Id., Ex. E-8, at 3. The most serious symptoms the record shows

complainant has experienced were feelings of sadness/not wanting to live,

depressed mood, crying spells, poor body image, anxiety, hyperphagia

(overeating) and frustration. Id.; Ex. E-4, at 2.

We recognize that complainant's psychiatrist stated that a "major

stressor that might provoke relapse could include social isolation,

particularly at work" and that "[complainant] would be probably

better off in a position which includes considerable social contact."

ROI, Ex. E-8, at 4. However, as the agency itself recognizes, the

psychiatrist did not indicate that such relapse would likely be very

serious or that complainant would likely pose a threat to himself or

others in such circumstances. The FAD itself states "Complainant's

psychiatrist offers no opinion as to whether the Complainant would need

medication or require some type of treatment if the Complainant were

placed in a socially isolated post. He appears to recommend that for

health reasons, Complainant not be placed in such a post." FAD, at 21.

Even assuming that the psychiatrist believed that it would be ideal for

complainant's health not to be placed in a socially isolated location,

he clearly did not believe that placing him in such a post could have

serious consequences, since he also states "I have no concerns with

[complainant] representing the United States overseas." ROI, Ex. E-8,

at 4.

When making its individualized assessment, the agency must gather

information and base its decision on substantial information regarding

the individual's work and medical history. See Katz v. Department of

State, EEOC Appeal Nos. 0720060024 and 0720060025 (March 26, 2009);

Lovell v. Department of Justice, EEOC Appeal No. 01A41642 (May 26, 2006);

see also Chevron U.S.A. Inc. v. Echazabal, supra; Harrison v. Department

of Justice (DEA), EEOC Appeal No. 01A03948 (July 30, 2003). Here, the

agency did not base its decisions to reject complainant on substantial

information regarding complainant's work and medical history. DMH

described the process of gathering information about complainant's medical

history as follows: A nurse in the Office of Medical Clearances did the

initial review for complainant's medical clearance. See ROI, Ex. E-4,

at 2. The record shows that the nurse requested that complainant obtain

information from health care professionals who treated him, and she also

emailed complainant and spoke with him on the telephone several times.

Id., Ex. E-7, at 29. The nurse then referred the mental health issues

to a psychiatrist who was on the Office of Medical Services' staff at

the time. Id. The psychiatrist recommended a Class 5 Clearance for

complainant. Id. DMH stated "Upon review of this case, I concur with

[the agency psychiatrist's] recommendation. I should note that nothing

in the records I have reviewed shows that [the agency psychiatrist]

spoke with [complainant] personally. I suspect he simply reviewed

[complainant's] medical reports and records." Id. DMH also does not

state that he ever spoke with complainant, and complainant indicates

that the only person ever to speak to him about his mental health history

was the nurse who did the initial review.

Further, the agency maintains that it must provide for complainant's

medical care, and it cannot do that in all posts. The agency fails to

recognize that the risk assessment must be based on medical or other

objective evidence. Bragdon and Arline, supra, at 288, 107 S.Ct., at

1131. The agency apparently did not investigate whether in the past,

complainant had lived or worked under difficult circumstances (such

as social isolation), and/or how he has dealt with such circumstances.

Complainant, in fact, never spoke with anyone at the agency other than one

nurse, to discuss his history or answer questions that would illuminate

whether or not he was capable of working anywhere in the world, including

hardship posts. There is also no indication whatsoever that the agency

considered the fact that complainant states that he speaks six languages

fluently, and several more languages to an extent, when they jumped to

the conclusion that most of the posts would not have medical resources

(English-speaking therapists) to treat complainant, and that he might

need to be medically evacuated. The agency, as complainant's potential

medical provider, does not receive deference simply because the decision

was made by its health professionals. See Bragdon at 2210; Rodriguez

v. Conagra Grocery Products Company, 436 F.3d 468, 484 (5th Cir. 2006).

Rather, an individualized assessment must be made, taking into account

the best objective evidence. The agency instead made assumptions and

acted on unfounded fears. In light of the evidence discussed above,

we find that the agency failed to meet its burden of establishing that

complainant represented a significant risk of substantial harm.

Based on the above, we find that the agency failed to conduct an

individualized assessment, jumping to conclusions based on their own

unfounded assumptions and fears. In light of the evidence discussed

above, we find that the agency failed in its burden of establishing

complainant represented a significant risk of substantial harm.

Accordingly, the agency's defense to denying complainant the Class 1

Medical Clearance on the basis of disability was not established, and

the Department of State is liable for failing to issue him a Class 1

Medical Clearance. The agency is also liable for denying him a waiver

of the "worldwide availability" requirement and Junior Foreign Service

Officer position, because it did not conduct an individualized assessment

and failed to establish complainant posed a direct threat.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we REVERSE the agency's

decision and direct the agency to comply with the Commission's ORDER

set forth below.

ORDER (C0900)

The agency is ordered to take the following remedial actions:

(1) Within thirty (30) days from the date this decision becomes final,

the agency shall retroactively offer complainant a Junior Foreign Service

Officer position with back pay, interest and other benefits, including

all promotions he would have been entitled to, accruing from the date

that his application for a position in the Foreign Service was denied on

September 23, 2003, and continuing until the date he enters on duty in

the position or receives a written decision denying either a medical or

security clearance. In the event that complainant declines the position,

back pay shall cease on the date the offer is made.

The agency shall cooperate in assisting complainant to obtain a

medical assessment and security clearance. The agency should not

use complainant's prior medical assessment as a basis for declining

complainant a Class 1 Medical Clearance. If complainant does not

obtain a Class 1 or Class 2 medical clearance, the agency is ordered

to assess complainant's application pursuant to its waiver process.

The agency shall issue a final decision detailing its decision as to

complainant's suitability, within thirty (30) days from the date it makes

its suitability determinations. The final decision shall provide appeal

rights to the Commission.

(2) The issue of compensatory damages is REMANDED to the agency. On

remand, the agency shall conduct a supplemental investigation on

compensatory damages, including providing the complainant an opportunity

to submit evidence of pecuniary and non-pecuniary damages. For guidance on

what evidence is necessary to prove pecuniary and non-pecuniary damages,

the parties are directed to EEOC Enforcement Guidance: Compensatory and

Punitive Damages Available Under � 102 of the Civil Rights Act of 1991

(July 14, 1992) (available at eeoc.gov.) The agency shall complete

the investigation and issue a final decision appealable to the EEOC

determining the appropriate amount of damages within 150 calendar days

after this decision becomes final.

(3) Within sixty (60) days from the date this decision becomes final,

the agency is ordered to provide at least eight (8) hours of training

to the responsible officials on the laws prohibiting employment

discrimination, paying particular attention to agency's obligations

under the Rehabilitation Act. The training shall cover the agency's

obligations regarding the provision of reasonable accommodation, as well

as its obligation to conduct an individualized assessment pursuant to

the direct threat defense.

(4) The agency shall consider taking disciplinary action against the

responsible officials. The Commission does not consider training to

be disciplinary action. The agency shall report its decision to the

Compliance Officer. If the agency decides to take disciplinary action,

it shall identify the action taken. If the agency decides not to take

disciplinary action, it shall set forth the reason(s) for its decision

not to impose discipline. If any of the responsible management officials

have left the agency's employ, the agency shall furnish documentation

of their departure including dates.

(5) The agency shall post a notice in accordance with the paragraph

below.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

POSTING ORDER (G0900)

The Department of State is ordered to post at its Washington, D.C

facilities copies of the attached notice. Copies of the notice, after

being signed by the agency's duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, D.C. 20013. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the

policies, practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, D.C. 20013. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. If you file a civil action, you must name as the defendant

in the complaint the person who is the official agency head or department

head, identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Stephen Llewellyn

Executive Officer

Executive Secretariat

______09/30/09____________

Date

1 Complainant indicates that he scheduled the April 2003 appointment

with P1 not as a "treatment appointment" but simply for the purpose of

obtaining a medical report for submission to the agency as part of the

medical clearance process. See ROI, Ex. E-1, at 3-4.

2 Examples of major life activities include, but are not limited to,

sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. �

1630.2(f). They also include thinking, concentrating, interacting with

others, and sleeping. See EEOC Enforcement Guidance on the Americans

with Disabilities Act and Psychiatric Disabilities (March 25, 1997).

3 CMC stated that her office was responsible for preparing the memorandum

which was presented to the ERC concerning complainant's request for a

waiver.

4 The agency provides the following citations: Neve v. Baker, Secretary,

Department of State, EEOC No. 01891625 (1990) citing The Foreign Service

Act of 1980. Pub. L. No. 96-465 � 101(a)(4), 22 U.S.C. 3901(a)(4) ("the

members of the Foreign Service should be available to serve in assignments

throughout the world"); S. Rep. No. 913, 96th Cong., 2d Sess. 46 (1980)

("Section 504(a) sets forth the fundamental criterion for membership in

the Foreign Service-worldwide availability"); H. Rep. 992, 96th Cong.,

2d Sess. 9 (1980) ("...availability for worldwide assignment must be

clearly expressed and understood as a basic requirement for admission to

the Foreign Service...."); Local 1812, AFGE v. U.S. Department of State,

662 F. Supp. 50 (D.D.C. 1987).

5 Complainant states that he has lived overseas for 20 years (half of

his life). ROI, Ex. E-7, at 25.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Washington, D.C. 20507