0120065043
09-30-2009
John A. Boland, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
John A. Boland,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120065043 (formerly 01A65043)
Hearing No. 100-2005-00768X
Agency No. DOSF0374
DECISION
On September 8, 2006, complainant filed an appeal from the agency's August
11, 2006 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 VACATES the agency's final order.
ISSUE PRESENTED
Whether there are disputed genuine issues of material fact in the record
which require resolution at a hearing before an EEOC Administrative
Judge.
BACKGROUND
In or about January 2002, the agency extended complainant an offer of
employment as a Junior Foreign Service Officer (FSO), contingent upon
his successful completion of a medical clearance process to certify his
"worldwide availability."1 As part of the medical clearance process,
complainant submitted medical information which disclosed that he had
sought treatment for an anxiety disorder within the preceding year.
The psychiatrist (P1) who had been treating complainant since 1994,
prepared a report in which he indicated that he had diagnosed complainant
with a mild form of Obsessive Compulsive Disorder (OCD). In this report,
P1 described the history of complainant's OCD, including the medications
and course of psychotherapy used to treat it. P1 specifically noted that
since late 1995, he had been prescribing complainant 50 milligrams/day
of paroxetene (a.k.a "Paxil"). In the report, P1 further stated that he
normally required patients to see him every three months but complainant
was not reliable in following this schedule. P1 explained that because he
did not want complainant to "become sick again" he nevertheless continued
to renew complainant's prescription.
Upon review of the medical documentation that complainant provided,
the Department of State's Office of Medical Services ("MED") determined
that complainant was limited to assignment to posts with English speaking
mental health providers, which the agency estimated constituted only 45%
of posts worldwide.2 Accordingly, agency officials found that complainant
was not "worldwide available" and therefore, he could not be placed in
the FSO position. Upon learning of the agency's determination that he
had not satisfied the requirement for availability to serve in posts
worldwide, complainant filed a request for an administrative "waiver"
from the worldwide availability requirement. Complainant did not
present the agency with any supplemental information in support of his
waiver request, although he did submit an "Authorization for Release
of Medical Records". By letter dated January 30, 2003, the agency's
Deputy Director of Recruitment, Examination, and Employment notified
complainant that the agency had denied his request for a waiver.
Procedural Background
Believing he was a victim of discrimination, complainant sought EEO
counseling, and on August 21, 2003, complainant filed an EEO complaint
alleging that the agency discriminated against him on the basis of
disability when:
(1) the agency denied him employment as a Junior Officer in the
Foreign Service in or about September 2002, and
(2) the agency denied his request for a "waiver" in or about
January 2003.
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 and an AJ was assigned to the case. The agency
subsequently submitted a "Motion for Summary Judgment" dated August 2,
2005. In the Motion, the agency averred that complainant cannot prevail
because he cannot demonstrate that he is "disabled" within the meaning
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 701 et seq.
Specifically, the agency asserted that complainant's impairment - OCD
treated daily with Paxil - does not substantially limit any of his major
life activities. The agency noted that in his deposition, complainant
repeatedly emphasized that his condition is well controlled through
medication and does not impair his physical or mental capabilities. The
agency further indicated that while complainant noted the presence of some
side effects resulting from taking Paxil on a daily basis, he stated that
these side effects are "[n]othing that affects [his] overall well-being"
and "nothing that is uncontrollable by any stretch of the imagination."
The agency concluded that complainant's own testimony demonstrates that
his impairment (or the side effects from taking Paxil) does not prevent
him from performing a major life activity or significantly restrict
him as to the condition, manner or duration under which he performs the
activity as compared to the condition, manner or duration under which
the average person in the general population performs the activity.
In its Motion, the agency also asserted that complainant cannot show
that he has an impairment which substantially limits him in the major
life activity of working. Specifically, complainant's failure to secure
an entry-level Foreign Service officer position (one type of job or a
particular job of choice) does not, in and of itself, show that his
impairment prevented him from working in a class of jobs or a broad
range of jobs. The agency further stated that there is also no evidence
to suggest that complainant's condition precluded him from other jobs.
For instance, in his deposition, complainant explained that since being
diagnosed with OCD in 1994, he has not had difficulty obtaining an
education or finding employment.
The agency further addressed, in the Motion, whether complainant was
"regarded as" disabled, within the meaning of the Rehabilitation Act.
The agency contended that complainant's claim that he was regarded as
disabled because of agency officials' perception that he was not worldwide
available fails because he cannot show that there is a class of jobs or
a broad range of jobs requiring worldwide availability. The worldwide
availability requirement was created to address needs specific to the
Department, i.e. ensuring that incoming FSOs can serve at all of its
overseas posts, including hardship posts. The agency argued that,
thus, in determining that complainant's condition precluded him from
being worldwide available, the most that can be said is that the MED
regarded him as not being able to serve in a job requiring worldwide
availability - i.e. a Foreign Service Officer. However, it asserts,
being precluded from one type of job is insufficient to establish a
regarded as claim of disability.
In its Motion, the agency also argued that complainant cannot show
that he is an "otherwise qualified" individual within the meaning
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 701 et seq.
Specifically, the agency asserted that complainant could not fulfill
an essential function of the position he sought, namely, worldwide
availability. The agency stated that this is because he could only
serve in 45% of the posts overseas (posts with access to English-speaking
mental health professionals). The agency then noted that complainant's
suggestion that the agency allow him to travel periodically for
routine medical monitoring. is unreasonable on its face, because he
needs to be able to obtain routine medical care "locally". Finally,
the agency argued that it had legitimate, nondiscriminatory reasons for
rejecting complainant; namely, that based on the medical information
which complainant provided to the agency in 2002, the agency believed
that it could not provide adequate psychiatric care to complainant in
a substantial number of posts overseas.
Complainant submitted an Opposition to the agency's Motion on August 25,
2005, in which he asserted that he was 100% worldwide available to work
and travel as a Junior Foreign Service Officer. He also noted that
a world-renowned expert in the field of OCD who was deposed in this
case testified and believes that complainant is worldwide available.
Complainant additionally stated that at the relevant time, the agency
possessed no information to show that complainant was at risk of doing
harm to himself or to others, or that he would require emergency care.
Complainant reiterated his contention that he was discriminated against
when he was not placed in the FSO position, and when his request
for a waiver of the worldwide availability requirement was denied.
The record indicates that both parties subsequently submitted supplemental
documents, all of which the AJ indicated she considered prior to issuing
her decision.
The AJ Decision
In her decision, the AJ assumed arguendo that complainant had proven
that he was an individual with a disability, and found that a decision
without a hearing was nevertheless appropriate because complainant failed
to establish that he is a "qualified individual with a disability"
within the meaning of the Rehabilitation Act. The AJ noted that
in order to establish that he is a "qualified individual with a
disability," complainant must demonstrate that in addition to meeting the
Rehabilitation Act's definition of an "individual with a disability,"
he also (1) satisfied the requisite skill, education, experience, and
other job-related requirements of the position at issue; and (2) could
perform its essential functions with or without reasonable accommodation.
The AJ concluded that being available to serve at Foreign Service posts
worldwide is an essential function of the position complainant sought.
The AJ further found that complainant had not demonstrated that he was
worldwide available at the relevant time. The AJ found that in light
of the foregoing, the agency's failure to hire complainant as a Junior
Foreign Service Officer did not violate the Rehabilitation Act.3 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.4
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
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). The Commission's regulations allow an AJ to issue a
decision without a hearing when he or she 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. 242, 255 (1986).
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. If a case can only be resolved by weighing
conflicting evidence, issuing a decision without holding a hearing is
not appropriate. 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).
The courts have been clear that summary judgment is not to be used
as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768
(1st Cir. 1975). The Commission has noted that when a party submits
an affidavit and credibility is at issue, "there is a need for
strident cross-examination and summary judgment on such evidence is
improper." Pedersen v. Department of Justice, EEOC Request No. 05940339
(February 24, 1995). "Truncation of this process, while material
facts are still in dispute and the credibility of witnesses is still
ripe for challenge, improperly deprives complainant of a full and fair
investigation of her claims." Mi S. Bang v. United States Postal Service,
EEOC Appeal No. 01961575 (March 26, 1998); see also Peavley v. United
States Postal Service, EEOC Request No. 05950628 (October 31, 1996);
Chronister v. United States Postal Service, EEOC Request No. 05940578
(April 23, 1995). The hearing process is intended to be an extension of
the investigative process, designed to "ensure that the parties have a
fair and reasonable opportunity to explain and supplement the record and
to examine and cross-examine witnesses." See EEOC Management Directive
(MD) 110, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. �
1614.109(d) and (e).
In this case, the Commission finds that the AJ erred when she issued a
decision without a hearing as the record contains the following genuine
issues of material fact in dispute: (1) whether the agency regarded
complainant as disabled; (2) whether complainant was "qualified" for the
position at hand; (3) whether complainant would pose a direct threat if
placed in the position he sought; and (4) whether the agency's decision
to deny his request for a waiver was discriminatory.
Individual with a Disability
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 activities;
(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).
In this case, complainant specifically denies that he has an actual
disability, under prong (1), noting that his OCD does not substantially
limit any of his major life activities. The Commission finds that this
is undisputed by the agency. Moreover, the record evidence (including
the testimony of an expert on OCD) reflects that complainant's impairment
does not rise to the level of actual disability. Complainant asserts
however, that the agency "regarded" him as disabled when it found that
due to his need for treatment and medication for his OCD he would not
be able to serve at the majority of posts available to Junior Foreign
Service Officers. In reply, the agency officials specifically deny
that disability was a consideration in complainant's non-placement
in the position he sought. The Director of Medical Clearances notes
however, that they are required to consider the medical treatment,
care and monitoring that an applicant would require at his post,
and how feasible this would be, given the conditions present at many
of the posts (e.g. isolation, disease, extreme climates, hygiene,
transportation infrastructure, security, available medication). See ROI,
at 8. The Deputy Chief of Foreign Service Programs, who indicated that
she initially denied complainant the requisite medical clearance averred
that worldwide available means that "you have 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, no exceptions." See ROI at D3. In a
memo that she wrote concerning complainant's request for waiver of
the worldwide availability requirement, she mentioned that the reason
for his disqualification included, inter alia, the "rate of relapse"
of complainant's OCD. See IR 90. In this case, a reasonable fact finder
could conclude that agency officials regarded complainant as disabled
due to their stereotypes and/or misunderstanding of complainant's OCD,
and therefore, the question of whether the agency "regarded" complainant
as disabled is a genuine issue for trial.5
Qualified
In addition, the Commission finds that there is a disputed genuine
issue of material fact as to whether complainant was qualified for the
FSO position. The record reflects that the agency conditionally offered
complainant the position; therefore, there is no doubt that complainant
was qualified for the position in terms of his skills, knowledge, and
other non-medical qualifications of the position. However, complainant's
offer was revoked after he failed to obtain medical clearance. The AJ
assumed that the agency correctly asserted that worldwide availability
is an essential function of the FSO position. However, the record
contains evidence that conflicts with this proposition, namely, the
fact that the agency has in place a formal process by which an applicant
may request a waiver of the requirement to be worldwide available.6 In
Katz v. Department of State, EEOC Appeal Nos. 0720060024 and 0720060025
(March 26, 2009), the Commission specifically addressed the matter of
whether worldwide availability is an essential function of the Foreign
Service job, as follows:
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.
In the instant case, the Commission finds that whether worldwide
availability is an essential function of the position complainant
sought is an issue which must be resolved at a hearing. The Commission's
Interpretive Guidance of Title 1 of the ADA, Appendix to 29 C.F.R. Part
1630, � 1630.2(n) explains that "[t]he inquiry into whether a particular
function is essential initially focuses on whether the employer actually
requires employees in the position to perform the functions that the
employer asserts are essential." Another factor in determining whether
a function is essential is the number of other employees available to
perform that job function or among whom the performance of that job
function can be distributed. Whether a particular function is essential
is a factual determination that must be made on a case by case basis,
considering all relevant evidence. Id.
We observe that the agency's Deputy Director of its Office of Recruitment,
Examination and Employment, in its Bureau of Human Resources, has averred
that current Foreign Service employees who develop medical conditions
which make them no longer medically qualified for worldwide assignment may
continue in the Foreign Service notwithstanding their failure to meet the
worldwide availability requirement. He indicated that those employees are
sent only to posts having the medical facilities and support to treat
or monitor the conditions. In light of this information, on remand,
the AJ should gather evidence from the agency concerning the number
of currently employed Junior Foreign Service Officers that possess
worldwide availability medical clearances and the numbers of waivers
of the worldwide availability requirement granted to both applicants
and current employees. In addition, the extent to which the agency has
permitted and/or relied upon consultation with medical professionals in
its offices by video or telephone should be ascertained. Such information
will assist in determining whether the ability to serve in every single
overseas assignment without need for follow up medical consultation, is
an essential function of the Junior Foreign Service Officer position.
Next, even if we were to assume that the world wide availability
requirement was an essential function of the Junior Foreign Service
Officer position, and we, in no respect, do so herein, complainant has
certainly raised a genuine issue of material fact concerning whether he
meets this requirement since he has raised serious questions concerning
the accuracy of the agency's estimation that only 45% of posts located
throughout the world could provide him the necessary mental health
care. In particular, he has disputed the level of care he actually
requires and has asserted that he could receive necessary consultation
by telephone in many overseas locations. Complainant has also indicated
that during discovery, he presented testimony from an expert on OCD
who attested to his worldwide availability. We find that this record
contains inadequate information to determine whether complainant was, at
the time in question, worldwide available by the agency's own standards.
Moreover, based on the above, the record contains a genuine issue of
material fact in dispute as to whether complainant is actually precluded
from worldwide availability.
Direct Threat
Next, assuming complainant is a qualified individual with a disability,
there remains an additional genuine issue of material fact in dispute
concerning whether the agency conducted an individualized assessment
and/or can establish that complainant was a direct threat, when it
denied him a waiver of the "worldwide availability" requirement and the
FSO position. 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." 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.
With respect to the individualized assessment required from the agency,
complainant asserts that the agency utterly failed to engage in a dialogue
with him concerning his ability to do the job in question, and that
his treating physicians were never contacted by agency personnel for
more information even though he authorized the release of his medical
information. The former Chief of Medical Clearances stated that based
on the recommendation of the doctor who served as a consultant for
MED, complainant would need to be assigned to a post where there is
an English speaking mental health provider. ROI, Ex. D2. She further
states that according to that report, complainant's own doctor required
complainant to visit a psychiatrist every three months for consultation
and medication. Id. She also notes that complainant's willingness to serve
anywhere in the world is not a factor that is taken into consideration
for medical clearance status. Id. In addition, the Deputy Director,
Office of Recruitment points out that many of the Department of State
posts overseas are remote, unhealthy, or have limited medical support,
even for treatment that would be commonplace in the United States. Id.,
at Ex. D3. He states therefore, that to be considered for service at
such posts, each candidate must meet medical fitness standards which are
often more rigorous than those of other professions. Id. In essence,
the agency is asserting that it must provide for complainant's medical
care, and it cannot do that in all posts.
Although the agency makes general comments about complainant's need for
medication and consultation on a regular basis, and the agency's inability
to provide such services in the majority of the posts worldwide, this
record contains little evidence that the agency conducted an individual
assessment of risk in complainant's case, based on medical or other
objective evidence. For instance, this record contains scant information
concerning the duration of the risk, the nature and severity of the
potential harm, the likelihood that the potential harm will occur, and/or
the imminence of the potential harm. Complainant asserts that agency
officials did not conduct the necessary inquiries, medical or otherwise,
to make such assessments. We find therefore, that this record contains a
genuine issue for trial concerning whether the agency has demonstrated
that complainant would pose a significant risk of substantial harm if
hired as a Junior Foreign Service Officer.
Further, with respect to the agency's denial of complainant's request for
waiver of the worldwide availability requirement, the U.S. Department of
State Foreign Affairs Manual Volume 3 (3 FAM), at � 1931.2 provides for
the waiver of pre-employment standards. It provides that the Director
General of the Foreign Service (DG) or a Deputy Assistant Secretary of
Human Resources as the Director General's delegate will review the case
in question, and determine whether it is in the best interest of the
service to grant a waiver request, taking into account, but not limited
to, the following considerations:
(1) What percentage of posts is the candidate currently available to be
assigned?;
(2) Is the disqualifying condition considered permanent and/or temporary
in nature? (i.e., Is it likely that in the future the percentage of posts
to which the candidate can be assigned will remain the same or increase
or decrease);
(3) What is the nature of the specific position for which the candidate
is applying? (e.g., Will this person be a specialist with skills the
Foreign Service is in great need of at this time? How many posts have
this type of position and where are those posts generally located?); and
(4) Does this candidate otherwise possess some extraordinary skill or
experience the value of which would outweigh her or his inability to be
assigned worldwide?
See ROI, Exhibit D8.
Complainant states that he was discriminated against when he was told by
Mental Health Services personnel (specifically, a doctor in Mental Health
Services and a Registered Nurse in Medical Clearances) that he would
not be granted an administrative waiver of the worldwide availability
requirement because he takes the medication Paxil. Complainant contends
that he should have been granted a waiver because his condition does
not impair his ability to perform the essential duties required of a
Foreign Service Officer. The Deputy Director, Office of Recruitment
stated that although complainant requested a waiver of the worldwide
availability requirement, complainant only submitted an "Authorization
for Release of Medical Records" in support of his request. The Deputy
Director asserts that the Employment Review Committee did not recommend
that a waiver of the worldwide availability requirement be granted in
this case, given the fact that health care services for complainant's
medical needs could only be provided at 45% of the posts worldwide.
A review of the evidence reveals that the agency did not take complainant
up on his offer to provide more medical records (by way of the release
he provided), and generally failed to conduct any further assessment
of his case. There is little evidence currently in the record that the
agency took into account any factor listed in 3 FAM, � 1931.2, other than
(1), concerning the number of posts where complainant would be available
for assignment. There is little indication, if any, that when considering
complainant's waiver request, the agency took a closer look at the degree
of permanency of complainant's impairment, or whether he possessed "some
extraordinary skill or experience the value of which would outweigh
her or his inability to be assigned worldwide". Based on the above,
the Commission finds that a reasonable fact finder could conclude that
the agency discriminated against complainant based on stereotypes or
misinformation concerning complainant's OCD when it refused, through
the waiver process, to overturn MED's decision not to hire complainant.
In ruling on a Motion for a Decision Without a Hearing, the evidence of
the non-moving party must be believed and all justifiable inferences
must be drawn in the non-moving party's favor. This case contains
conflicting evidence as to whether the agency's failure to place
complainant in the position he sought initially, or through the waiver
process, constitutes a violation of the Rehabilitation Act. In order
to resolve the conflicts in the record, the fact finder must determine
whether the agency's explanations are more credible than complainant's.
Accordingly, in this case, issuance of a decision without a hearing was
not warranted under 29 C.F.R. � 1614.109(g). The Commission VACATES the
agency's final order and REMANDS the matter for a hearing in accordance
with this decision and the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the Washington Field
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the complaint in accordance with 29 C.F.R. � 1614.109 and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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, DC 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 (S0408)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__09/30/09________________
Date
1 The former Chief of Medical Clearances explained that to be "worldwide
available" means that one has no current identifiable medical, psychiatric
or educational condition that requires supervision or follow up that
would limit overseas assignments. See Report of Investigation (ROI),
at Ex. D2.
2 While the agency medical official who was responsible for the initial
denial of complainant's medical clearance averred without explanation
that based on the agency consulting psychiatrist's recommendation,
complainant should be assigned to posts with English speaking medical
providers, this point is not mentioned in the brief medical statement
attributed to that psychiatrist found in the record. ROI, at 64-65, 81.
Another agency official indicated that complainant would be limited to
those posts able to effectively handle his medical needs. Id. at 72.
3 The AJ additionally noted that complainant had contested the agency's
failure to investigate an additional claim which he had raised concerning
the agency's failure to engage in Alternative Dispute Resolution (ADR).
The AJ found however, that the claim was subject to dismissal for failure
to state a claim pursuant to 29 CF.R. � 1614.107(a). As complainant
does not specifically contest the dismissal of this claim in his appeal,
the Commission will not address it herein.
4 We note that neither party filed a full brief in this
appeal. Complainant sent a supporting letter on January 26, 2007, which
acknowledged that it was filed several months after the notice of appeal
was docketed in September 2006. The agency filed a brief response, which
pointed out, inter alia, that the letter was filed in an untimely manner.
We decline to consider the letter due to its untimely filing.
5 The "regarded as" prong of the definition of disability is intended
to combat the stigmatization of persons with disabilities as well as
discrimination based on the myths, fears, and stereotypes associated with
disability. The rationale for the "regarded as" part of the definition
of disability was articulated by the Supreme Court in the context of the
Rehabilitation Act of 1973 in School Board of Nassau County v. Arline,
480 U.S. 273 (1987). The Court noted that, although an individual may
have an impairment that does not in fact substantially limit a major life
activity, the reaction of others may prove just as disabling. "Such an
impairment might not diminish a person's physical or mental capabilities,
but could nevertheless substantially limit that person's ability to work
as a result of the negative reactions of others to the impairment." 480
U.S. at 283.
6 The record reveals that in calendar year 2001, 73 Foreign Service
applicants applied for a waiver of the worldwide availability requirement
and 31 individuals were granted a waiver. ROI, Ex. D13. In calendar
year 2002, 80 Foreign Service applicants applied for a waiver and 6
individuals were subsequently granted a waiver. Id.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
13
0120065043