0720060024_0720060025
03-27-2009
Dara Katz, Complainant, v. Hilary Rodham Clinton, Secretary, U.S. Department of State, and Alonzo Fulgham Acting Administrator, Agency for International Development, Agencies. Appeal Nos. 0720060024 and 0720060025 (Formerly 07A60024 and 07A60025) Hearing No. 100a38361x Agency No. EOP0206
Dara Katz,
Complainant,
v.
Hilary Rodham Clinton,
Secretary,
U.S. Department of State,
and
Alonzo Fulgham
Acting Administrator,
Agency for International Development,
Agencies.
Appeal Nos. 0720060024 and 0720060025
(Formerly 07A60024 and 07A60025)
Hearing No. 100a38361x
Agency No. EOP0206
DECISION
Following its final orders, the agencies timely filed appeals which
the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal,
the agency requests that the Commission affirm its rejection of an EEOC
Administrative Judge's (AJ) finding of discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The agency also requests that
the Commission affirm its rejection of the relief ordered by the AJ.
Complainant also filed an appeal requesting that we reject the AJ finding
that she was not entitled to back pay.1 For the following reasons,
the Commission REVERSES the agency's final orders.
BACKGROUND
In May 2001, complainant applied for a Democracy and Governance Office
(DGO) position with the United States Agency for International Development
(USAID) New Entry Professional Program, which is a position within the
U.S Foreign Service. At the time of her application, complainant was
stationed in Kosovo with the Organization for Security and Cooperation
in Europe.
Members of the Foreign Service receive medical care through the
Department of State Office of Medical Services ("MED"). In addition to
issuing medical clearances for employment, MED also provides primary
health care to Foreign Service employees and medical evacuations for
overseas employees. All candidates for employment within the Foreign
Service must receive a medical examination and receive a Class 1 medical
clearance ("Unlimited Clearance of Worldwide Available"). See 3 Foreign
Affairs Manual (FAM) 1931.1(b) and 3-1(1) (hereinafter referred to as
"worldwide availability)." If the candidate does not receive a Class
1 Clearance, the candidate will be issued a Class 5 Classification
("Disqualified for Medical Reasons"). Id. Class 1 Clearances are issued
to individuals who "have no identifiable medical conditions that would
limit assignment abroad." 3 FAM 1931.3-1(1).2 If one receives a Class
5 Medical Clearance, the candidate may request a waiver of the medical
standards from the hiring agency.
Complainant signed her "Medical History and Examination for Foreign
Service" Form DS-1843 in November 2001, and by the end of December
2001, had negotiated her salary and received a security clearance. The
record reveals complainant has a very rare congenital condition called
"exstrophy of the cloaca." This condition was treated through several
surgeries. As part of the medical clearance process, a Nurse with the
State Department, Medical Clearance Division contacted complainant's
father, who had complainant's power of attorney while she was working
in Kosovo. Specifically, the nurse asked for an explanation of certain
medical information disclosed on complainant's form.
Complainant, her internist, the neurosurgeon and her surgeon wrote to the
agency offering explanations for the medical conditions. "Specifically,
complainant's internist, (Dr. I) reported that complainant's ilestomy
is "easily managed and stable." Her "mild proteinuria and pyuria is
her normal chronic stable condition, and does not pose a problem to her
health." He indicated complainant could participate in all activities.
Complainant's neurosurgeon, (Dr. N), reported that complainant had
recovered from her surgery, has no restrictions, and could participate
in all activities. Finally, complainant's surgeon, (Dr. S) sent a letter
to the nurse explaining her genetic condition, and some of the surgeries
he performed. Each doctor offered to provide more information if needed.
During one conversation, the Nurse questioned complainant about her
condition and her susceptibility to, and difficulty in treating infectious
disease, such as malaria. Complainant testified at the hearing that
the Nurse also asked for evidence establishing she would not require
follow-up treatment in the next 2 years.
Complainant responded in a letter by denying she was more susceptible
to infectious diseases, and that the only major implication of her
condition is that "she goes to the bathroom" differently than most.
Complainant also stated that on the rare occasion that she does get sick,
her physicians treat her in the same way as they treat other patients.
In response to this request for follow-up, Dr. S wrote the nurse in
March 7, 2002 stating that complainant is fit to carry out any duties
expected of her. Furthermore, he stated:
I do not anticipate that she has any special medical needs within the past
(sic) two years at least. In the distant future I would like to see her,
after two years from now, for a general review." (Joint Exhibit [JE] 8.)
On March 29, 2002, he again wrote the Nurse stating that complainant
would not require any follow up treatment for the next 3 years. (JE 10).
On March 12, 2002, Dr. N wrote the Nurse stating:
As far as follow-up, [complainant] only needs to see me if she has
symptoms related to her condition. She does not need a repeat MRI
unless she starts to develop symptoms that warrant an MRI. No follow
(sic) is needed at this time or the foreseeable future.
As stated in a previous letter, [complainant] can participate in
all activities. She is cleared to perform her duties at her place of
employment, wherever the State Department may send her.
Finally, in a follow-up letter dated March 13, 2002, Dr. I stated
"no follow up is needed" and complainant would require only the usual
preventative therapies for infectious disease. (JE 9).
On April 23, 2002, complainant learned from her parents that she
had received a letter from a Nurse Practitioner, the Chief of Medical
Clearances, denying her a Class 1 Medical Clearance because she was not
worldwide available. The letter also stated, "the MED Medical Director
and the Clinical Director have reviewed your file and concur with the
decision." (ROI at F11).
In an effort to appeal the decision, complainant contacted a Human
Resources Specialist within the USAID, but was informed that the
hiring process could not continue unless she had received a Class 1
Medical Clearance. On April 29, 2002, complainant contacted the MED
Medical Director to get an explanation and appeal rights. On May 6,
2002, the Medical Director wrote back and informed complainant that in
order to get a Class 1 Medical Clearance, one cannot have "any medical
conditions which require monitoring or that are prone to exacerbation.
These may require follow-up or emergency treatment oversees and limit
worldwide availability." (ROI at Exhibit W). Furthermore, the Medical
Director indicated that complainant has:
mild chronic proteinuria and pyuria and takes Cirpo as needed. Laboratory
services to assess this condition are not available worldwide. Dr. [N]
indicates that you would need a neurological consult if you develop
symptoms related to your neurological condition and that it is possible
that you would need an MRI. These services are very limited overseas.
Based on these medical conditions and the possible need for diagnostic
services it is not possible to grant a Class 1 medical clearance.
During the hearing, the then Deputy Director of the Medical Clearance
Section testified that laboratories necessary to assess complainant's
urine were available at 25-50% of the foreign posts overseas (HT at
690) and 20 out of the 78 USAID posts. (HT at 691). Moreover, State
Department witnesses testified that they believed complainant needed
access to a gastroenterologist, urologist, neurologist and an MRI.
The record reveals complainant contacted the Medical Director after the
denial asking for an opportunity to provide input on the disqualifying
conditions, but the Medical Director did not respond to her letter.
After the State Department denied complainant's Medical Clearance request,
complainant sought a review with the USAID Medical Review Committee
(MRC), to decide if a waiver of the worldwide availability requirement
could be made.3 One factor that the MRC considers in making its waiver
determination is whether the applicant can work at more than 51% of the
posts. Accordingly, in October 2003, the Chief of Medical Clearances
with the Department of State attended a meeting at the USAID MRC to
present it with the number of posts that had facilities that it believed
complainant required: a neurologist, urologist, gastroenterologist and
an MRI. During the meeting, the Chief of Medical Clearances reported that
there were 25 USAID posts that had a urologist and gastroenterologist
available, 36 posts that have MRI facilities available, and 2 posts
with neurologists. (HT at 777-784). The number of USAID postings with
just a urologist was 34, or 44%. The waiver was denied.
On August 12, 2002, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of disability (cloacal exstrophy)
when:
1. The Department of State denied her a Class 1 Medical Clearance;
and
2. The USAID refused to hire complainant for its New Entry
Professional Program, or to grant her a medical waiver.4
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on January 26 through
January 28 and February 25, 2005. The AJ held a hearing on damages on
April 20 and 21, 2005.
The AJ Decision
In her decision, the AJ found complainant was regarded as substantially
limited in working because the agency determined that complainant's
impairments restricted her from performing a wide range of jobs in
various classes, specifically, all Foreign Service positions which
require worldwide availability as an essential function of the job.
The AJ also found that complainant had the requisite skills, education and
experience necessary for the job, and was in fact, worldwide available.
In making this finding, the AJ determined that complainant had no medical
impairments that currently warranted medical care or attention, or would
have prevented her from working anywhere in the world.
The AJ found that complainant was disqualified due to a fear of future
injury and the State Department's concern regarding its inability to
care for complainant. The AJ also found that the agency failed in its
burden of establishing a reasonable probability of substantial harm.
Indeed, complainant's physicians, some of whom have treated complainant
for over 10 years, consistently testified that complainant would need no
more additional treatment for urinary tract infections or gastroenteritis
than any other individual. The AJ found the agency failed to conduct
an individualized assessment of complainant's conditions, and did not
follow up, ask appropriate questions, and incredibly, did not even read
notes from complainant's doctors.
The AJ also found that despite the decision of the State Department,
the USAID still had the option of giving complainant a waiver of the
medical clearance. One factor used by USAID's Medical Review Committee
to determine whether to grant a waiver was the percentage of hiring posts
at which the applicant would be available to serve, given the particular
medical condition. The MED's former Chief of Medical Clearances testified
that, based on their review of complainant's medical history, complainant
would need to be posted where there was a neurologist, MRI, urologist and
a gastroenterologist. However, the AJ noted that the MED representative
did not have a medical release to discuss complainant's condition,
although one was supposed to have been obtained for the meeting.
The MED representative informed USAID that there were only two posts
with a neurologist, and it denied the waiver. The AJ found the USAID
was liable for denying the waiver, since it did so without having engaged
in an individualized assessment of complainant's medical condition.
As for remedies, the AJ ordered the Department of State to issue
complainant a Class 1 Medical Clearance. The AJ also ordered the USAID
to place complainant into the DGO position, with all appropriate step
increases. However, the AJ found that complainant, as an applicant
for employment, was not entitled to back pay. The AJ also awarded
complainant past pecuniary damages, and non-pecuniary damages in the
amount of $32,000, attorney's fees, and ordered the agency to provide
training, and post a notice. The agency subsequently issued a final
order rejecting the AJ's finding that complainant proved that she was
subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
The State Department argues on appeal that its MED decision was sound and
reasonable, and it is inappropriate for the Commission to second guess
the medical judgment of the agency's physicians. The State Department
also contends that the AJ's decision is not supported by substantial
evidence because complainant's medical condition requires her to have
access to medical care that cannot be provided at every post. In that
regard, the agency asserts that complainant requires a gastroenterologist,
a neurologist, and access to an MRI where she works. Furthermore, the
agency contends that complainant was at risk for bladder perforation,
dehydration, and bladder stones. The agency also maintains that the AJ
failed to consider the testimony of its witnesses who have first hand
knowledge of the availability of such services overseas; information
complainant's physicians do not possess.
On appeal, the USAID argues, inter alia, that it relied on MED's decision
regarding its ability to treat people overseas, and it has no means of
otherwise acquiring medical advice.
In response, as discussed below, complainant argues that the agency
failed to obtain sufficient medical evidence and engage in an
individualized assessment of her condition before denying her the
subject medical clearance and that she was "world wide available"
for the job based upon the medical evidence she submitted from her
physicians. Complainant maintains that the only reason the USAID rejected
her for the position was because of the denial of the Class 1 Medical
Clearance. Accordingly, even if the Medical Review Committee had never
met regarding the possibility for a waiver, the USAID would still have
rejected complainant. Complainant argues that in light of the USAID's
failure to engage in an individualized assessment, the agency is still
liable for the discrimination. In that regard, complainant points out
that the Medical Review Committee did not get access to complainant's
medical records as was required. (See JE 16). Therefore, it failed to
assess complainant's medical condition apart from MED's assessment.
Both agencies submitted lengthy appeal briefs which will be discussed
below, as will complainant's substantial briefs in response to the
agencies' appeals. Finally, complainant's arguments on appeal with
respect to the AJ's ordered remedies are also discussed below.
ISSUES PRESENTED
(1)Whether complainant meets the threshold standard necessary to secure
coverage under the Rehabilitation Act?
(2)Whether the agency conducted an individualized assessment to support
its medical clearance decision that barred complainant from a Class
1 Medical Clearance and a DGO position with the USAID's New Entry
Professional Program?
(3)Whether the AJ properly denied complainant back pay as a remedy for
the discrimination at issue?
ANALYSIS AND FINDINGS
Individual with a disability
We review the AJ's conclusions of law under a de novo standard of review,
whether or not a hearing was held.
An individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has record of such impairment; or (3) is regarded as having such an
impairment.5 See 29 C.F.R. � 1630.2(g)(1)-(3). Major life activities
include functions such as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). An individual is substantially limited in a major
life activity if he is "significantly restricted as to the condition,
manner or duration under which [he] can perform a particular major
life activity as compared... to the average person in the general
population." 29 C.F.R. �1630.2(j)(ii).
In the present case, the AJ found complainant was regarded as
substantially limited in working because she was limited from working
in all overseas jobs. However, we find, based on the facts of this
particular case, that the agency's perception that complainant was not
worldwide available may not, in and of itself, equate to the agency having
regarded her as substantially limited in working in a "broad range" of
jobs. To be substantially limited in the major life activity of working,
an individual must have an impairment that significantly restricts him or
her from currently performing a class of jobs or a broad range of jobs
in various classes. 29 C.F.R. � 1630.2(j)(3). We find that complainant
failed to meet her burden of showing the agency regarded her as unable to
work in a either a class or broad range of jobs. See Thompson v. Rice,
422 F. Supp. 2d. 158, 171 (D.D.C. 2006)(foreign service not a broad class
of jobs). Accordingly, we do not find complainant established that she
was regarded as substantially limiting in working.
However, our inquiry does not end there. We find, based on the evidence
in the record, that complainant is substantially limited in the major
life activity of waste elimination. See Heiko v. Colombo Savings
Bank, 434 F.3d 249 (4th Cir. 2006)(elimination of waste a major life
activity); see also, Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 380
(3d Cir. 2004)(same); Kammueller v. Loomis, Fargo & Co., 383 F.3d 779,
785 (8th Cir. 2004) (holding that plaintiff who underwent dialysis was
"incapable of doing activities of central importance to a person's life,
such as cleansing one's own blood cells"); and the Second Circuit Gilbert
v. Frank, 949 F.2d 637, 641 (2d Cir.1991) (noting that "persons whose
kidneys ...do not function sufficiently to rid their bodies of waste
matter without regular dialysis" may be "substantially limited in their
ability to care for themselves").
Although waste elimination is not specifically cited in the Commission's
non-exhaustive list of major life activities, it is comparable to other
life-sustaining activities such as breathing, eating, or drinking, all of
which have been held to be major life activities within the statute. See,
e.g., 29 C.F.R. � 1630.2(i); Lawson v. CSX Transp., Inc., 245 F.3d 916,
923 (7th Cir. 2001) (eating); Amir v. St. Louis Univ., 184 F.3d 1017,
1027 (8th Cir.1999) (eating, drinking, and learning). Accordingly,
we find that waste elimination is a major life activity because of its
central importance to the life process.
The term "substantially limits" means: unable to perform a major life
activity that the average person in the general population can perform;
or significantly 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).
The record reveals that complainant eliminates waste by using an ileostomy
bag and a cannula. She uses the cannula periodically throughout the day.
Furthermore, she empties the ileostomy bag as needed throughout the day.
Complainant will need to do this her entire life. Accordingly, we
find complainant is substantially limited in the major life activity of
eliminating waste as she is significantly restricted in the manner she
eliminates waste as compared to the average person in the population.
Furthermore, this restriction will continue lifelong and is not short
term or temporary.
Otherwise Qualified
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 she sought, e.g., that she met the skill, experience,
education and other job requirements to perform the DGO position, apart
from the agency's allegation that she fails to meet its world wide
availability requirement. The Department of State, however, contends
the AJ erred in finding that complainant is a qualified individual with
a disability because she is not "worldwide available" which, according
to the agency, is an essential function of the position. The agency
points to several Commission decisions which have summarily found that
"worldwide availability" is an essential function of the Foreign Service
job. See, e.g., Souza v. Department of State EEOC Appeal No. 01A40002
(May 18, 2005); Enloe v. Department of State, EEOC Appeal No. 01A42370
(August 10, 2005); Sampat v. Department of State, EEOC Appeal No. 01A54471
(October 6, 2005). Upon further examination, the Commission observes that
the aforementioned cases were decided prior to the U.S. Court of Appeals,
D.C. Circuit case, Taylor v. Rice, 451 F.3d 898 (D.C. Cir. 2006). There,
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, 452 F.3d at 907. The Commission observes that the
aforementioned cases were individually decided on their own particular
facts, just as we do herein.
Assuming that the agency correctly asserts that this requirement is an
essential function of the position complainant seeks, complainant has
asserted and presented medical evidence that she is in fact available
for positions anywhere in the world. Further, complainant does not have
a medical condition that limits assignment abroad. Complainant has
a condition that restricts her in the manner in which she eliminates
waste, and has required her to undergo several surgeries from which
she has not suffered any complications. She has functioned well both
while living in and out of the United States and has sought and received
appropriate treatment for her condition. Complainant is well versed in
her symptoms, and during the atypical times that she requires treatment,
she has successfully treated herself on the advice of her physicians.
Complainant has not suffered any of the problems envisioned by the agency.
Accordingly, we find complainant is "worldwide available." To the extent
that complainant needs access to laboratories or to obtain an MRI in
order for her to be considered by the agency as "worldwide available",
we remind the agency that one can be a qualified individual with a
disability if she can perform the essential functions of the job with
an accommodation. See 29 C.F.R. � 1630.2(m). An accommodation in the
form of using accrued paid leave or providing additional unpaid leave
for necessary treatment to obtain such services is reasonable. See 29
C.F.R. � 1630, app. (note discussing � 1630.2 (o)); Taylor v. Rice,
451 F.3d 898 (June 27, 2006)(genuine dispute as to whether leave for
treatment for an HIV-infected Foreign Service Officer was reasonable).
The agency has not established that taking leave for such services,
if needed at all, would constitute an undue hardship.
Accepting the agency's argument that complainant is required to prove
that she is worldwide available in order to be qualified would place an
inappropriate burden on complainant. We observe that the agency medical
officer's belief that complainant is not available to serve in some posts
because of her medical condition is clearly what has prevented complainant
from assuming the DGO job at issue. When the agency takes this type
of position, it squarely moves the burden to the agency to prove that
complainant poses a direct threat to herself or others. Specifically,
the Commission holds the position that it is the agency that has
the burden of proof regarding whether there is a significant risk of
substantial harm. Massingill v. Department of Veterans Affairs, EEOC
Appeal No. 01964890 (July 14, 2000). Furthermore, there is support for
this position among federal circuits. See Branham v. Snow, 392 F.3d 896
(7th Cir. 2005)("employer's burden to show that an employee posed a direct
threat to workplace safety that could not be eliminated by reasonable
accommodation"); Hutton v. Elf Atochem N. America, 273 F.3d 884, 893
(9th Cir. 2001)(direct threat affirmative defense).
Direct Threat
Now that we have found complainant is a qualified individual with
a disability, we move to the reasons offered by the agency for
her disqualification. 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).
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 her decision, the AJ found the State Department failed to conduct
an individualized assessment and hence, did not satisfy its burden
of establishing complainant was a direct threat. We find there is
substantial evidence to support the AJ's finding that the agency failed
to conduct an individualized assessment and failed to prove complainant
was a direct threat.
Specifically, we find that MED was not knowledgeable about complainant's
condition or her particular anatomy. One of the agency's main arguments
at the hearing was that complainant was not forthcoming about her
condition. Instead of asking questions, however, MED simply placed
assumptions on complainant about dehydration, susceptibility to UTI's,
and an emergent need for an MRI. Furthermore, the MED clearance staff
did not contact complainant's physicians to investigate whether their
assumptions were true or not. Rather, the agency's Nurse testified at
the hearing that she contacted complainant's surgeon to find out if she
required any follow up, not for a detailed explanation of her condition.
Complainant's physician replied in a written statement that complainant
indeed did not need close follow-up in the next few years.6 Complainant
credibly testified that no one asked her for any other information,
other than a statement that she required no additional follow up in the
next two years, and was told that her medical information was complete.
(HT at 1131). Amazingly, two of the physicians who supposedly "reviewed"
complainant's medical record admitted that that they never saw the
letters from complainant's physicians which reported that no follow up
was required in the coming two years.
During the hearing, there was much testimony about the presence
of pyuria and proteinuria in complainant's urine, due to the ileal
tissue used to augment her bladder. According to the record, this
was one of the main reasons complainant's Medical Clearance was denied.
In light of the ileal tissue, a urinalysis is not as useful of a test for
diagnosing a UTI for complainant. Instead, complainant would need urine
cultures and sensitivities. (HT at 143). We find there is substantial
evidence in the record to support the AJ's finding that the presence
of pyuria and proteinuria does not render complainant a direct threat.
Complainant's physician stated that if complainant did not have the
sensitivities and cultures available, he would not be concerned because
this has not been an issue for complainant in the past, and she carries
with her antibiotics in case she suspects an infection. (HT at 248).
Complainant also testified that if she suspects she has a bacterial
infection, she has antibiotics for her own use. (HT at 134, 178-179).
In the past, complainant has successfully treated herself. There is no
evidence of any substantial harm which has resulted from complainant's
self care in this regard.
The agency also presented evidence at the hearing of the possibility that
complainant would encounter a variety of other ailments.7 Complainant's
physician remarked that he has done about 300 bladder augmentations,
and he has only seen 2 perforations in that time. (HT at 195).
Further, those incidents involved facts and circumstances which can be
distinguished from complainant's case. Consequently, we cannot agree
that this applies to complainant's situation, and the agency failed to
establish that bladder perforation constitutes a significant risk of
substantial harm to complainant.
Complainant's physician testified that of those who have had a bladder
augmentation such as complainant's, the individual has a 1 in 5 chance of
developing a bladder stone. (HT at 210). However, complainant has never
had bladder stones (HT at 197), and it would be highly unlikely since she
has not had one in the past. Furthermore, that risk is lessened with
drinking large amounts of water. In response to the agency's concern
that complainant was more susceptible to dehydration, complainant's
physician credibly testified that complainant has been very careful
during her life to stay hydrated and complainant's condition does not
pose any greater risk of dehydration than any other person. Accordingly,
the treatment for complainant's dehydration would be the same as for
any other Foreign Service Officer. (HT at 625). The agency has not
satisfied its burden of establishing that complainant's conditions put
her at risk of "substantial harm."
In his letter dated May 6, 2002, the Medical Director also cited
complainant's neurosurgeon's statement that complainant "would need
a neurological consult if [she] develop[ed] symptoms related to [her]
neurological condition and that it is possible [complainant] would need
an MRI." (ROI Exhibit W). However, had the agency actually contacted
complainant's neurosurgeon, it would have learned that the possibility
of such a need was 1-3%. (HT at 391). Furthermore, if such a need
arose, complainant would not need immediate access to an MRI. Rather,
the process occurred over the course of months. Regardless, the agency's
Nurse testified she did not know the probability nor did she ask anyone.
(HT 718-719). Furthermore, the Nurse Practitioner testified that there
was no conversation between herself and the Clinical Director or the
Medical Director as to the likelihood of complainant's neurological
condition recurring. Moreover, the agency failed to identify a risk of
harm to complainant. If the need arose, complainant could use leave or
her scheduled vacation to obtain an MRI as an accommodation. As such,
we find the agency failed to conduct an individualized assessment in this
regard, and failed to establish complainant was subject to "substantial
harm" due to her previously tethered, and treated spine.
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. 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
failed to consider complainant's position as a human rights officer in
Kosovo, where she lives under very difficult circumstances. Complainant
testified that she has been in situations where, due to local violence,
it was required she be confined to her home for periods of time. (HT at
p. 1129). Furthermore, she has traveled to Thailand and Namibia during
the hottest times of the year, and has not suffered from dehydration.
Complainant testified that in Kosovo, the public restrooms are filthy
and often back up in the evening. Despite these challenges, complainant
managed to work successfully. Furthermore, complainant has traveled
extensively during her lifetime to Africa, Asia, Georgia, the former
Yugoslavia and the Czech republic, without experiencing the serious
medical problems envisioned by the agency.
In light of these facts, as well as the agency's failure to conduct
an individualized assessment, the AJ found complainant's physicians
more persuasive than the MED clearance staff or agency expert witness.
See AJD at n. 17. Complainant physicians have treated complainant for
many years and are highly regarded in their fields. The agency's witness,
while very well qualified, has not treated or examined complainant
and is not as familiar with complainant's particular condition or
anatomy. The agency's determination that complainant needed access to a
gastroenterologist, a neurologist, an MRI, and a urologist has not been
proven by a preponderance of the evidence.
The State Department contends that the AJ second-guessed MED's reasonable
assessment of complainant's condition.8 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. In that regard, the agency did not
consider complainant's work and travel history, which provide objective
evidence of her ability to care for herself under the dire international
work conditions proffered by the agency. 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 did not ask
questions, instead, it made assumptions and acted on unfounded 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. Furthermore, where the agency concludes that
an individual poses a direct threat as a result of a disability, the
agency must determine whether a reasonable accommodation would either
eliminate the risk or reduce it to an acceptable level. 29 C.F.R. �
1630.2(r). If no such accommodation exists, the agency may refuse to
hire an applicant. Id. Here, we also find the agency failed to consider
whether any accommodation would reduce the risk.
Accordingly, the agency's defense to denying complainant the Class 1
Medical Clearance because of her disability was not established, and
the Department of State is liable for failing to issue her a Class 1
Medical Clearance.
USAID
In her decision, the AJ found the USAID was also liable because it
did not conduct an individualized assessment and failed to establish
complainant was a direct threat, when it denied her a waiver of the
"worldwide availability" requirement and the DGO position.
3 FAM � 1931.2 provides for the waiver of pre-employment standards.
In addition to the percentage of posts the candidate can work, the USAID
should examine whether the medical condition was:
1. static and not progressive
2. constitutes significant risk to the life and limb of the applicant
or a fellow employee;
3. will result in excessive medical costs for treatment and/or
special emergency travel for medical treatment;
4. will result in significant periods of absence from duty; and
5. whether the knowledge and skills of the applicant are critical
and in a shortage capacity.
See id., Complainant's Exhibit 18, and JE 16.
Accordingly, USAID has a procedure in place to reject the MED's finding
through the waiver program by conducting a further assessment. See 3
FAM � 1931.2. However, no further assessment was conducted in this case.
The record reveals that the medical release signed by complainant was not
made available for the meeting, and therefore, the State Department's
Chief of Medical Clearances could not discuss complainant's medical
history with the MRC. Therefore, we find the USAID did not conduct
any assessment at all of complainant's condition when it determined a
waiver was not available, and failed to show that a waiver could not be
granted absent undue hardship.
On appeal, USAID argues that it was obligated to accept the MED's
findings, however, we do not find support for this, as the USAID had
in place these procedures which could allow for a waiver of medical
clearance standards. Accordingly, we find substantial evidence in the
record to support the AJ's finding of liability on the part of the USAID
when it denied complainant a waiver of the "worldwide availability"
requirement, and then, denied her the DGO position.
Remedies
Class 1 Medical Clearance
As relief in this case, the AJ ordered the State Department to issue
complainant a Class 1 Medical Clearance. In response, the State
Department argues that due to the passage of time since the AJ's decision,
an award of a Class 1 Medical Clearance without any information on
complainant's current medical condition is inappropriate. Moreover,
since each clearance is only valid for two years, complainant would
need a new medical evaluation like any other Foreign Service Officer.
Complainant disputes this, and states that in order to be made whole,
she should be given a Class 1 Medical Clearance.
After a review of the record, we agree with the Department of State's
assertion that complainant should be required to undergo a new medical
review, given the passage of time. See McGraw v. Department of State,
EEOC Request No. 05940903 (September 28, 1995)(blind Foreign Service
applicant subject to second medical examination due to passage of time
from initial denial). However, the agency has been found liable
for discriminating against complainant during the medical clearance
process. Absent evidence that complainant's medical condition has changed
significantly since her first medical review, the agency shall not deny
complainant a Class 1 Medial Clearance simply because she has the same
conditions discussed in this decision. Should her current medical
conditions have changed significantly since her original denial, the
agency is instructed to conduct an individualized assessment of her new
conditions and shall determine with specificity whether any accommodations
would be needed which would enable complainant to perform the duties of
the position.
Compensatory Damages
Past Pecuniary Damages
The AJ found that complainant was entitled to all past pecuniary losses
directly attributable to the discrimination. Specifically, complainant
provided documentation relating to airplane tickets and lodging needed
to attend the hearing in the amount of $4,465.15. On appeal, the State
Department contends this award is not supported by substantial evidence
because complainant's exhibit is not in U.S. Dollars. Furthermore, the
receipt is not itemized. Finally, the agency contends that some of the
airfare was related to complainant's first trip for a hearing that was
later rescheduled by the AJ. The agency contends that it should not
have to bear this charge due to the AJ's scheduling changes. After a
review of the record, we are not persuaded by the agency's arguments.
Complainant is entitled to out of pocket expenses related to the
discrimination. The AJ's decision was supported by substantial evidence.
Attorney's Fees
In her fee petition, complainant's attorneys requested a total of
$135,275.20 in fees, and $14,580.05 in costs and expenses. The AJ reduced
the costs award by $3,575.00 for expert fees related to the unsuccessful
back pay claim, $1855.90 for excessive hours prior to the filing of the
EEO complaint, $156.00 hours for unbillable charges, and $168.68 for
undocumented federal express charges.
Both agencies argue that because complainant was not awarded back pay,
she is not a prevailing party for attorney's fee purposes. Furthermore,
the Department of State contends that the AJ did not afford the agency
enough time to examine complainant's attorney's fee petition. Had it been
permitted a thorough examination, it would have argued that complainant's
billable rate was not supported, and several charges were excessive.
By federal regulation, the agency is required to award attorney's fees for
the successful processing of an EEO complaint in accordance with existing
case law and regulatory standards. 29 C.F.R. � 1614.501(e)(1)(ii).
To determine the proper amount of the fee, a lodestar amount is reached
by calculating the number of hours reasonably expended by the attorney on
the complaint multiplied by a reasonable hourly rate. Blum v. Stenson,
465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983).
In determining the number of hours reasonably expended, the attorney
has the burden of identifying the subject matters in which he spent
his time, which can be documented by submitting sufficiently detailed
contemporaneous time records to ensure that the time spent was accurately
recorded. See National Association of Concerned Veterans v. Secretary
of Defense, 675 F.2d 1319 (D.C. Cir. 1982). Counsel for the prevailing
party should make a "good faith effort to exclude from a fee request
hours that are excessive, redundant or otherwise unnecessary." Hensley,
In order to obtain an award of attorney's fees, complainant must be
considered a prevailing party. See Texas State Teachers Ass'n v. Garland
I.S.D., 489 U.S. 782 (1989). A prevailing party for purposes of obtaining
attorney's fees is one who succeeds on any significant issue, and achieves
some of the benefit sought in bringing the action. Davis v. Department
of Transportation, EEOC Request No. 05970101 (February 4, 1999)(citing
Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)). Here, we agree that
complainant is a prevailing party, as she has succeeded on the liability
issues, and has significantly received a benefit in bringing the action.
Complainant has been awarded back pay, compensatory damages, and has
obtained an order requiring the agency to determine, once again, whether
she is available for assignment in the Foreign Service. Complainant is
a prevailing party.
After a careful review of the fee petition, the AJ's decision and the
agency's briefs submitted on appeal, we do find that other further
adjustments of the fee award are in order. As an initial matter,
although we find that complainant's two primary attorneys' rates were
reasonable, several other attorneys worked on this case, and did not
submit affidavits supporting their reasonable hourly rate. For that
reason, the attorney's fees award should be reduced in the amount of
$159.50 for the number of hours billed by various attorneys who did not
submit evidence of their hourly rate.
Additionally, complainant's primary attorneys did bill complainant for
some matters that were not properly billable, such as issues relating
to her fee agreement, or those which were primarily clerical in nature.
The Commission has held that clerical expenses are generally viewed
as part of the attorney's overhead, and as such these expenses are
not reimbursable. Cole v. United States Postal Service, EEOC Request
No. 05910450 (August 5, 1991). For those reasons, we have reduced
the fee award to account for charges incurred on the following dates:
2/12/04, 5/21/04, 9/17/03, 9/22/03, 9/24/03, 2/11/05, 2/14/05 and 3/19/04.
The total amount that will be deducted is $410.00. Primarily, these
matters represent that which was raised by the State Department in its
appeal. The remaining charges cited by the State Department as excessive,
duplicative or clerical have not been changed because they related to
the processing of the federal sector complaint, and are not considered
to be clerical in nature. For example, time billed for communications
between complainant's attorney and EEO Investigator and EEO Counselors
could not be considered clerical; rather they dealt with the completion
of the investigation, and complainant's filing of her EEO complaint.
Moreover, we are not persuaded by the State Department's argument that
complainant should not receive fees for both the attorneys who worked on
this case. As is abundantly clear from this decision, the AJ decision, as
well as the over 200 pages of briefs submitted by the parties on appeal,
this case was more complex than an average discrimination complaint.
This case involved two respondents, and several novel questions of law.
The hearing was over three days. Accordingly, we find that complainant
should be reimbursed for the two attorneys who worked on this case and
who presented documentation supporting their reasonable hourly rates.
We find no reason to overturn the AJ's finding as to the pre-complaint
attorney's fees. However, since we have found that complainant is entitled
to back pay, she is properly entitled to the expert fee related to
that issue. Finally, we disagree with the AJ's 33% reduction for federal
express charges. After a review of the fee petitions exhibits it is clear
that all federal express charges were documented, and it is clear that
each charge was billed to complainant's Client Identification number.
The agencies are ordered to pay complainant attorney's fees and costs
in accordance with the order below.
Complainant's appeal
Back Pay
Complainant argues in her appeal that we should reject the AJ's omission
of back pay from the relief afforded to her. In her decision, the
AJ found that complainant, as an applicant for employment, was not
entitled to back pay because of language found in the Back Pay Act.
Specifically, the AJ found the Commission was without authority to
grant an award because pursuant to the Back Pay Act, only employees,
or former employees are entitled to back pay. See 5 C.F.R. � 550.805.
Complainant filed an appeal regarding this determination.
29 C.F.R. � 1614.501(b)(1)(i) states:
when an agency or the Commission finds that an applicant for employment
has been discriminated against the agency shall offer the applicant
the position that the applicant would have occupied absent the
discrimination...The offer shall be made in writing...
Furthermore, 29 C.F.R. � 1614.501(b)(ii) goes on to add, "...Back pay,
computed in the manner prescribed by 5 C.F.R 550.805 shall be awarded..."
After a review of the record, we find the AJ made an error of law in
denying back pay, as our regulations specifically provide for such an
award. The Back Pay Act only provides for the method of calculation,
not the entitlement thereto. Specifically, the Rehabilitation Act states
that the remedies, procedures and rights set forth in Civil Rights Act of
1964 [42 U.S.C.A. � 2000d et seq.] shall be available to any complaint
filed under 29 U.S.C. � 791. Accordingly complainant shall be awarded
back pay in accordance with the order below.
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 USAID shall retroactively offer complainant a DGO Foreign Service
Officer, FS-5, step 3, position overseas with back pay, interest and
other benefits, including all promotions she would have been entitled to,
accruing from the date that her application for a position in the Foreign
Service was denied in 2002, and continuing until the date she 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.
2. The agencies shall cooperate in assisting complainant to obtain a
medical assessment and security clearance. The agencies 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 from the State Department MED,
the USAID is ordered to assess complainant's application pursuant to
its waiver process. The agencies shall issue final decisions detailing
its decisions as to complainant's suitability, within thirty (30)
days from the date it makes its suitability determinations. In making
these determinations the agencies shall consider their obligations to
make reasonable accommodations. Should complainant believe that there
was some impropriety, including discrimination, in the rendering of
the agency's suitability determinations, she may file a Petition for
Enforcement with the Commission.
3. The agencies are ordered to pay complainant non-pecuniary damages in
the amount of $32,000.00, and past pecuniary damages in the amount of
$4,465.15.
4. The agencies shall pay complainant $132, 693.80 in attorney's fees
and $14, 580.05 in costs.
5. Within sixty (60) days from the date this decision becomes final, the
agencies are 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.
6. The agencies 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.
7. The agencies shall post a notice in accordance with the paragraph
below.
8. The agencies are 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 and the USAID are 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
March 27, 2009
Date
1 Complainant's appeal is included in the docketed agency appeals.
2 Current employees with a Class 1 Clearance, who become ill, may be
issued a Class 2 Clearance ("Limited Clearance of Assignment Abroad)
which permits them to serve in only certain overseas locations.
3 The AJ noted in her decision that although the waiver process had
been discontinued, it was revived on the advice of agency counsel.
Administrative Judge's Decision (AJD) at p. 20.
4 The initial complaint was lodged against the USAID. On November 4,
2003 complainant's motion to add the Department of State as a party was
granted by the Administrative Judge assigned to the case.
5 The Department of State argued on appeal that complainant was
not regarded as having an impairment; however, it does not dispute
that complainant's anatomical differences constitute impairments.
A physical impairment is "[a]ny physiological disorder, or condition,
cosmetic disfigurement, or anatomical loss affecting one or more of
the following body systems: neurological, musculoskeletal, special
sense organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genito-urinary, hemic and lymphatic, skin,
and endocrine." 29 C.F.R. � 1630.2(h). Here, parts of complainant's
anatomy were not functioning at birth, and were altered surgically so
that complainant could expel waste. Accordingly, we find complainant
has impairments to both her urinary and digestive systems.
6 The Nurse also testified at the hearing that she did ask the surgeon
for a diagnosis, prognosis and follow up, thereby lending support for the
agency's argument that it was complainant who was not forthcoming with
information. The Nurse's testimony was not credible. In her deposition
testimony, the Nurse denied ever speaking with complainant's surgeon,
Dr. S (HT 908). Also, there is no corroboration that the Nurse asked
questions about complainant's condition other than whether she would need
any follow-up care. Rather, the resulting letters between the physician
and the State Department support the complainant's position that the Nurse
only asked whether complainant needed any follow up care in the coming
two years, and did not ask for a detailed explanation of her condition.
7 The actual letters denying complainant's Medical Clearance did not
mention any of these issues as reasons for the denial.
8 The agency also contends that complainant was not forthcoming with
medical information about her condition. As is made clear above,
the agency did not ask for medical information when it had questions.
Indeed, the Chief of Medical Clearances testified that after reviewing
complainant's medical file, she did not believe there was any other
information that complainant failed to provide. (HT at p. 772).
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