Dinesh K. Sampat, Complainant,v.Condoleezza Rice, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionSep 22, 2005
01a54471 (E.E.O.C. Sep. 22, 2005)

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