01a54471
09-22-2005
Dinesh K. Sampat, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Dinesh K. Sampat v. Department of State
01A54471
October 6, 2005
.
Dinesh K. Sampat,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 01A54471
Agency No. FO21-04
Hearing No. 100-2004-00704X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
ISSUE PRESENTED
The issue presented is whether complainant has established by a
preponderance of the evidence that the agency discriminated against
him on the bases of age (12/23/44), race (Asian) and disability when he
was denied employment as a Financial Management Officer in the Foreign
Service.
BACKGROUND
Complainant applied for a position as a Financial Management Officer
in the Foreign Service, and received a letter, dated November 8,
2002, with a conditional offer of employment. The letter extending
the conditional offer advised complainant that �medical clearance for
worldwide assignment (Class One Clearance) is required for appointment
to the Foreign Service.�
On November 11, 2002, complainant completed and signed his medical form
for the Foreign Service employment. Complainant's medical history
showed that he had elevated blood pressure and Primary Open Angle
Glaucoma (POAG). On March 19, 2003, complainant's physician provided
a letter stating that complainant has �elevated intraocular pressures
associated with suspicious -appearing optic nerves and that the optic
nerves are suspicious of glaucomatous optic nerve atrophy.� By letter
dated April 10, 2003, complainant's physician advised the agency that
complainant has been recently diagnosed with mild POAG. The physician
further advised that once complainant's ocular condition was stabilized,
he would require periodic evaluations mostly at a frequency of once
every three to six months.
By letter dated April 25, 2003, the agency informed complainant that
he was determined not to be available for worldwide clearance and
thus not eligible for employment as a member of the Foreign Service.
It was that requirement of �periodic evaluations� at frequent intervals,
as complainant's physician advised, that presented the agency's concern
regarding complainant's worldwide medical clearance. The agency's medical
officials made the determination that complainant could not be posted
as a member of the Foreign Service at many overseas locations because he
had medical requirements that could not be met by the medical resources
available at many of the Department's posts abroad. Ophthalmologists are
not available at many Foreign Service posts.
On May 12, 2003, June 3, 2003, and June 5, 2003, complainant requested
that the agency re-evaluate his medical clearance. Complainant requested
an administrative waiver of the world-wide availability requirement.
On October 8, 2003, complainant's waiver request was considered at the
meeting of the Medical Advisory Board. On October 10, 2003, complainant
was informed that his request for an administrative waiver was denied.
Complainant filed a formal complaint of discrimination, dated January 16,
2004, alleging discrimination against him on the bases of age, race and
disability. At the conclusion of the investigation, complainant received
a copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, which complainant failed to rebut. Specifically,
the AJ found that complainant was denied medical clearance because he
requires monitoring by an ophthalmologist and may need to be checked once
every three to six months in between his annual physicals. The AJ found
that these medical services are not available at 157 of 307 posts. The AJ
further concluded that complainant failed to proffer any evidence that the
agency's actions were motivated by his race, age, or medical condition.
In its Motion for a decision without a hearing, the agency concluded that
complainant failed to establish a prima facie case of discrimination.
Specifically, the agency argued that complainant did not proffer
sufficient evidence to show that he was a qualified individual with
disability within the meaning of the Rehabilitation Act. The agency
alleged that there was no record that complainant's ocular condition
substantially limited any of his major life activity. The agency also
alleged that there was no evidence to support a finding that complainant
had a record of a substantially limiting impairment or that the agency
regarded him as having one. The agency further argued that complainant
failed to establish a prima facie case of age or race. Specifically,
the agency alleged that there was no evidence in the record to suggest
that a similarly situated individual outside of complainant's protected
group who had the same medical condition or who required the same amount
of medical monitoring and who were treated any differently. Finally,
the agency argued that the requirement of world-wide availability is
an essential function for appointment in the Foreign Service, one that
complainant cannot meet because of his medical condition.
In his Response to Summary Judgment, complainant alleged that there are
material facts in dispute regarding all his claims. Specifically,
complainant argued that he did establish a prima facie case of
disability discrimination. Complainant argued that by denying him a
medical clearance based on a physical impairment, the agency regarded
him as a disabled individual. Complainant also argued that he did
establish a prima facie case of race and age. Complainant alleged
that the agency denied him the worldwide medical clearance because of
his POAG's condition, which is a more common occurrence in Asians and
persons over 50 years old. Therefore, complainant argued that people of
advanced age and those who are non-Caucasian are at a clear disadvantage
when compared to younger people or Caucasian people.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
ANALYSIS AND FINDINGS
The Commission's review of a decision without a hearing is de novo,
meaning that it is done without regard to the legal or factual conclusions
of the previous decision maker. EEOC Management Directive 110, Chapter 9
(Section VI) (Revised 1999). 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 only appropriate where a court
determines that, given the substantive legal and evidentiary standards
that apply to the case, there exist 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, the issuance of a decision without a hearing
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider issuing a decision without 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).
Disability Claim
As a threshold matter, complainant must establish that he is an
�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
an 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 present case, we shall assume, arguendo,
that complainant established that he was an individual with disability
covered by the Rehabilitation Act.
When proceeding under a disparate treatment or reasonable accommodation
analysis, complainant must also show that he is a �qualified� individual
with a disability. See Sims v. United States Postal Service, EEOC
Petition No. 03A00033 (February 25, 2000); 29 C.F.R. � 1630.4 (prohibiting
discrimination against qualified individuals with disabilities).
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). Here, the record indicates that being available
for worldwide posting is an essential element of a Foreign Service
position. See, The Foreign Service Act of 1980, Pub. L. No. 96-465,
� 101(a)(4), 22 U.S.C. 3901 (a)(4) (�the members of the Foreign Service
should be available to serve in assignments throughout the world�);
S. Rep. No. 913, 96th Cong., 2d Sess.9 (1980) (�...availability for
worldwide assignment must be clearly expressed and understood as a basic
requirement for admission to the Foreign Service....�); Local 1812, AFGE
v. U.S. Department of State, 622 F. Supp. 50 (D.D.C. 1987). We find that
complainant has not established that he was a qualified individual with a
disability with respect to the Foreign Service position. Complainant was
disqualified from availability for worldwide posting because his medical
files indicate that due to his ocular condition he would need follow-up
evaluations once every three to six months. Therefore, complainant could
not perform a essential function of the position. To the extent that the
worldwide availability is a qualification standard, we note that under the
Rehabilitation Act, a qualification standard, test, or other selection
criteria that screens out or tends to screen out an individual with a
disability or a class of individuals with disabilities, on the basis
of a disability, is unlawful, unless it is shown to be job-related and
consistent with business necessity. 29 C.F.R. � 1630.10. The purpose
of this provision is to ensure that individuals with disabilities are
not excluded from job opportunities unless they are actually unable to
do the job.
We conclude that the agency has met the �job-related� standard.
It is apparent from the facts in this case that the agency made its
determination by conducting an individualized assessment of complainant's
condition and concluded that he was not qualified for a worldwide
assignment. We find no evidence that the agency's requirement for a
medical clearance for worldwide availability screens out individuals
with disabilities. The requirement for a medical clearance for worldwide
availability is a requirement that does not merely exclude individuals
with disabilities from job opportunities, but rather it applies to all
applicants for a position in the Foreign Service, whether or not they are
individuals with a disabilities. The record reveals that a candidate for
the Foreign Service must be medically qualified for assignment worldwide
at the time of his/her appointment or obtain a waiver of the worldwide
availability requirement. As mentioned above, worldwide availability
is an essential requirement for employment in the Foreign Service.
We further find that this requirement is job-related and consistent with
business necessity because, many of the posts are located in areas that
offer extremely limited or no medical resources.
Bases of Age and Race
In order to establish a prima facie case of discrimination based on
race and age, complainant must show that he is a member of a protected
group and that was subjected to an adverse employment action. Packard
v. Department of Health & Human Services, EEOC Appeal Nos. 01985494,
01985495 (March 22, 2001). He must also show either that he was treated
less favorably than other similarly situated employees outside of his
protected group, id., or he must present other, non-comparative evidence
which supports an inference that the agency was motivated by unlawful
discrimination. See O'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308, 312 (1996).
We find that complainant failed to establish a prima facie case of age
or race discrimination. Specifically, we find that complainant failed to
demonstrate that similarly situated employees not in his protected classes
were treated differently under similar circumstances. As mentioned above,
the requirement for a medical clearance for worldwide availability is a
requirement that applies to all applicants for a position in the Foreign
Service.
CONCLUSION
After a careful review of the record, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material fact
exists. We find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Further, construing the evidence to be most favorable to complainant, we
note that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes. Therefore, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final order.
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 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 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
__________________
Date
FOR OFO MERIT CASES - INTERNAL CIRCULATION ONLY
INITIAL
DATE
TO: CARLTON M. HADDEN, Director, Office of Federal Operations
HILDA RODRIGUEZ, Director, Appellate Review Programs
APPEAL NUMBER
AGENCY NUMBER
REQUEST NUMBER
HEARING NUMBER
01A54471
FO21-04
100-2004-00704X
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE
NAMES
INITIAL
DATE REVIEWED
(ATTORNEY):
Virginia Andreu
vao
9/22/05
(SUPERVISOR):
Shelley Kahn
(DIVISION DIRECTOR):
Robbie Dix III
COMPLAINANT(S):
Dinesh K. Sampat
AGENCY:
Department of State
DECISION:
affirm
STATUTE(S) ALLEGED:
Title VII, Rehab Act, and ADEA
BASIS(ES) ALLEGED:
RA, OA, and HP
ISSUE(S) ALLEGED:
P3
WHERE DISCRIMINATION IS FOUND (ONLY):
(A) BASIS(ES) FOR FINDING:
(B) ISSUES IN FINDING:
TYPIST/DATE/DISKETTE
VA0/9/22/05
SPELL CHECK
YES
TEAM PROOFED
DATE
(CHECK ALL APPLICABLE CODES)
MERITS DECISION CODES
MERITS DECISION CODES (CONTINUED)
x 4A - Merits decision
? 4B - OFO found discrimination
List basis codes:______________________________
List issue codes:______________________________
? Compensatory damages (C3) awarded?
x 4C - OFO found no discrimination/made no determination
re: discrimination
? 4R - OFO found settlement breach
? 4S - OFO found no settlement breach
? 4E - Agency found discr./breach
x 4F - Agency found no discr./breach
x 4H - OFO affirmed agency
? 4I - OFO reversed agency
? 4J - OFO modified agency (NOTE: if affirmed in part
and reversed in part, then (3L) code required if at
least one issue is remanded)
? 3L - OFO remanded PART of agency's merits decision
(NOTE: If breach is basis, use of 3L also requires
4I code; ALSO, do not use 3L with a 4B code)
? 3P - Adverse inference
? 4K - AJ found discrimination
x 4L - AJ found no discrimination
? 4M - AJ made no finding
x 4N - OFO affirmed AJ
? 4O - OFO reversed AJ
? 4P - OFO modified AJ
x 4T - AJ issued Summary Judgment decision
x 4U - OFO affirmed AJ Summary Judgment
? 4V - OFO reversed AJ Summary Judgment
? 3H - OFO denied attorney's fees
? 3I - OFO approved attorney's fees
? 3J - OFO modified attorney's fees
? 3T - Decision on comp. Damages - DENIED
? 3U - Decision on comp. Damages - APPROVED
? 3V - Decision on comp. Damages - MODIFIED
? 3W - Remand to AJ for remedies
? 3Z - Remand to agency for remedies
? 4Q - Compliance required Revised - (10/4/02)
Appellate Review Program Companion Case Checklist
COMPLAINANT
AGENCY
Appeal/Request/Petition No.
Dinesh K. Sampat
Department of State
01A54471
OPEN
CASES (#)
ORADS
STATUS
RELATED
(YES/NO)
ACTIONS
TAKEN
none
CLOSED
CASES (#)
ORADS
STATUS
RELATED
(YES/NO)
ACTIONS
TAKEN
none
Virginia Andreu 09/22/05
______________________ _______________
ATTORNEY DATE