John A. Boland, Complainant,v.Hillary Rodham Clinton, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionSep 30, 2009
0120065043 (E.E.O.C. Sep. 30, 2009)

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.

??

??

??

??

2

0120081304

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

13

0120065043