01A52378
06-21-2006
Eric Moore, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Eric Moore,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 01A52378
Hearing No. 100-2004-00101X
Agency No. 0341
DECISION
On February 8, 2005, complainant filed an appeal from the agency's January
5, 2005 final order 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 affirms
the agency's final order.
Complainant alleged in his formal complaint, filed on May 6, 2003, that the
agency discriminated against him on the basis of his disability (perceived
Larynx cancer) when:
1. On or about June 18, 2002, it denied him a medical clearance for
worldwide availability in the Foreign Service; and
2. On or about September 11, 2002, it denied him an administrative
waiver of the pre-employment medical standards for employment in
the Foreign Service.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case granted the agency's
December 10, 2004 motion for a decision without a hearing and issued a
decision on December 14, 2004. The AJ found that complainant failed to
establish that genuine issues of material fact existed. Specifically, the
AJ, after adopting the agency's statement of facts and law in the agency's
motion, summarily concluded that complainant failed to establish that he
was discriminated based on his disability. The AJ noted the agency's
argument that complainant was not qualified for the position since he did
not obtain the proper level of medical clearance due to a history of having
cancer of the larynx, which required check up(s) twice a year. The agency
subsequently issued a final order adopting the AJ's finding that
complainant failed to prove that he was subjected to discrimination as
alleged.
The record reveals the following facts in the light most favorable to
complainant:[1] Complainant applied for the positions of Foreign Service
Diplomatic Courier, Announcement No. DCS 01-01, and Foreign Service General
Services Officer, Announcement No. GSO 2001-1. On March 28, 2002
complainant received a conditional offer for the position of Foreign
Service Diplomatic Courier Career Candidate. Also, on June 5, 2002,
complainant received another conditional offer of employment as a Foreign
Service Specialist Career Candidate. Complainant was advised that medical
clearance for worldwide availability was required for appointment to the
Foreign Service, unless it was waived. Complainant signed his medical form
for the Foreign Service employment on April 18, 2002. The only issue with
complainant's health was his recent history of treatment, which was
completed in 2001, for left vocal cord cancer. Complainant's treating
physician, stated that "Beginning in January 2003 he will require ENT [ear,
nose and throat] follow up twice per year for three years." In a letter,
dated June 18, 2002, the agency informed complainant that he was denied
worldwide medical clearance. In a letter dated June 19. 2002, complainant
requested an administrative waiver of the worldwide medical clearance
requirement. On September 11, 2002, complainant's request for the waiver
was denied.
On appeal, complainant provides a note from his treating physician stating
that, as of February 6, 2006, he needed only yearly follow up treatment
concerning his larynx. The agency makes numerous arguments on appeal and
requests that we affirm their final decision adopting the AJ's finding of
no discrimination.
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
29 C.F.R. � 1614.405(a); EEOC Management Directive 110, Chapter 9, � VI.B.
(November 9, 1999). We must first determine whether it was appropriate for
the AJ to have issued a decision without a hearing on this record. The
Commission's regulations allow an AJ to issue a decision without a hearing
when he finds that there is no genuine issue of material fact. 29 C.F.R.
� 1614.109(g). This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material
fact. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. In ruling on a
motion for summary judgment, a court's function is not to weigh the
evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn
in the non-moving party's favor. Id. at 255. An issue of fact is
"genuine" if the evidence is such that a reasonable fact finder could find
in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome of the
case. In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without holding a hearing only upon a
determination that the record has been adequately developed for summary
disposition. See Petty v. Department of Defense, EEOC Appeal No. 01A24206
(July 11, 2003).
Preliminarily, we note that the record is adequately developed for a
summary disposition. Further, while the AJ erred by simply adopting the
findings of fact and statements of law from the agency's motion without
making independent findings, we, nevertheless, find that the AJ
appropriately determined that complainant failed to establish that genuine
issues of material fact existed with regard to this case. As a threshold
matter, complainant must establish that he is a "qualified individual with
disability" within the meaning of the Rehabilitation Act. An "individual
with disability" is one who: (1) has a physical or mental impairment that
substantially limits one or more major life activities; (2) has a record of
such impairment; or (3) is regarded as having such impairment. 29 C.F.R.
� 1630.2(g). Major life activities include, but are not limited to,
caring, for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. An impairment is substantially
limiting when it prevents an individual from performing a major life
activity or when it significantly restricts the condition, manner, or
duration under which an individual can perform a major life activity. 29
C.F.R. � 1630.2(j). The individual's ability to perform a major life
activity must be restricted as compared to the ability of the average
person in the general population to perform the activity. Id. In the
instant case, we will assume, arguendo, that complainant established that
he was an individual with disability covered by the Rehabilitation Act, as
alleged.
Complainant must also show that he is a "qualified." See Sims v. United
States Postal Service, EEOC Petition No. 03A00033 (February 25, 2000). A
"qualified" individual with a disability satisfies the requisite skills and
experiences for the job, and is capable of performing the essential
functions of the position with or without reasonable accommodation. 29
C.F.R. � 1630.2(m). The Commission has held that being available for
worldwide posting is an essential element of a Foreign Service position.
See Sampat v. Dep't of State, EEOC Appeal No. 01A54471 (October 6, 2005).
We find that even taking the facts in the light most favorable to
complainant, he has not established that he was a qualified individual with
a disability with respect to the Foreign Service positions. Complainant
was denied the requisite worldwide medical clearance because his medical
files indicated he needed bi-annual ENT follow ups for the following three
years. The agency provided that in order to be worldwide available,
complainant must have had no current identifiable medical, psychiatric or
educational conditions that require supervision or follow up that would
limit overseas assignments. An individual must be able to serve in every
post, without exceptions. Therefore, complainant could not perform an
essential function of the position. Deputy Chief Foreign Programs
Declaration at 1. Therefore, we find that complainant has failed to
demonstrate that he was qualified for the worldwide medical clearance. As
such, complainant has failed to establish that a genuine issue of material
fact existed with regard to this claim. Accordingly, we find that he
failed to establish that he was discriminated against as he alleged, with
regard to the medical clearance claim.
Similarly, with regard to the denial of the waiver, we also find that
taking the facts in the light most favorable to complainant, he failed to
establish that a genuine issue of material fact existed. Specifically, in
order to establish a prima facie case of disability disparate treatment,
complainant must demonstrate that: (1) he is an "individual with a
disability"; (2) he is "qualified" for the position held or desired; (3) he
was subjected to an adverse employment action; and (4) the circumstances
surrounding the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). Assuming
complainant was able to establish that he was a qualified individual with a
disability, we find that taking the facts in the light most favorable to
complainant, he failed to proffer any evidence to support an inference that
the agency's denial of his waiver request was due to his impairment. In so
finding, we note that complainant merely stated in his declaration that
"When I mentioned that I had a six-month check up it didn't sound like a
problem, but when they heard that it was for prior cancer, the response was
very cold, as if I was gravely ill." Complainant's Declaration at 43.
Complainant further stated that:
[C]ancer is a frightening word for many people. It is associated with
grave illness and death. Many are unaware that modern medicine and
early prognosis makes this so untrue. I believe they were taking a
serious risk by hiring me and that had a strong basis for their
decision.
Id. at 44.
We find, however, that complainant merely speculates that the agency was
motivated by discriminatory animus and he fails to offer other evidence to
corroborate his contentions that this was the case. Moreover, the record
is void of any other evidence to support such an inference. As such, we
find that complainant has failed to offer sufficient evidence to create an
inference of discriminatory animus to establish a prima facie case of
disability discrimination with regard to the denial of his request for a
waiver. We note that with regard to complainant's doctor's note dated
February 9, 2006, this evidence is irrelevant to whether the agency
appropriately denied his medical clearance or waiver at the time the
decisions were rendered. Therefore, complainant failed to demonstrate that
genuine issues of material fact exist such that a hearing is required on
the merits of this case.
Therefore, after a careful review of the record, the Commission finds that
the AJ appropriately issued a decision without a hearing, as no genuine
dispute of material fact exists. Further, we also find that based on the
merits of the case, complainant failed to establish, by a preponderance of
the evidence, that any of the agency's actions were motivated by
discriminatory animus toward complainant's protected classes.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 tends 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 19848, Washington, D.C.
20036. 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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you file
a request to reconsider and also file a civil action, filing a civil action
will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____6-21-06_____________
Date
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[1] Since the AJ issued a decision without a hearing, the evidence of the
non-moving party must be believed at the summary judgment stage. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).