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