0120101287
08-24-2012
Andrea V. Strano, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Andrea V. Strano,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120101287
Agency No. DOS-F-041-09
DECISION
On February 3, 2010, Complainant appealed the Agency's January 4, 2010 final decision concerning her 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 Commission accepts the appeal, according to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision, and REMANDS the matter for further investigation.
ISSUE PRESENTED
Whether the investigative record was adequately developed such that a determination may be made regarding the Agency's compliance with the Rehabilitation Act.
BACKGROUND
Complainant began working as a Foreign Service Officer in 2004. From 2004 to 2008, she was scheduled to serve on three overseas assignments: Abuja, Nigeria; Manila, Philippines; and Beijing, China. She successfully served in the Philippines assignment. But she had to cancel her Nigeria and China assignments due to health issues. From March to November 2004, she was not medically cleared to serve overseas because she was undergoing treatment. From April 2007 to March 2008, she was not medically cleared because she was diagnosed with multiple sclerosis. In place of those canceled overseas assignments, Complainant worked in a bridge assignment and as a Regional Public Diplomacy Desk Officer in the Agency's Bureau of European and Eurasian Affairs, Washington, D.C.
In 2008, while working as a Regional Public Diplomacy Desk Officer, FS-04, she was considered for promotion to the FS-03 level by the Foreign Service Selection Board. The Agency defines promotion as "recognition that a member has demonstrated the capability of performing the duties and responsibilities required at a higher level." Report of Investigation (ROI), at 744.
Each year, the Board considers every eligible Foreign Service Officer for promotion by reviewing a performance folder with evaluation reports going back at least five years. The Board ranks the officers in order based on certain criteria. Those ranked above a designated cut-off number are promoted; those ranked below the cut-off number are not. In 2008, the Board reviewed over 500 candidates and recommended over 300 for promotion.
The Board evaluates candidates based on established "precepts." ROI, Exhibit (Ex.) 15. The 2008 "Procedural Precepts" begins by emphasizing the importance of overseas service.
While a Foreign Service career will consist of both service abroad and in the United States, a significant portion of the career must be spent in assignments abroad. . . . [I]t is the Department's intention to have all members serve a substantial number of years abroad during both the middle and senior grades. While serving a stated number of years abroad is not a prerequisite for promotion at any particular grade, Boards are instructed to consider the importance of demonstrated competence in service abroad when reviewing members for promotion.
ROI at 744.
The 2008 Procedural Precepts then "reminds" the Board to consider whether a candidate has "developed" and "demonstrated" the following "four principles":
1) Operational effectiveness, including the member's breadth of experience;
2) Leadership and management effectiveness;
3) Sustained professional language and/or technical proficiency; and
4) Responsiveness to Service needs.1
Id. at 744.
Despite having excellent evaluation reports and serving in a position that was two grades higher than her current grade, Complainant was not selected for promotion in 2008. Complainant believed that the Board did not recommend her for promotion, in part, because of selection criteria that stressed the importance of overseas assignments. She felt that such criteria tended to screen out Foreign Service Officers like her, who ably performed their domestic U.S. assignments whenever the Agency denied them medical clearance to serve abroad because of their disabilities.
On January 28, 2009, Complainant filed an EEO complaint, essentially challenging the Agency's selection criteria for promotion.
Because of (1) having a Class 5 medical clearance twice, and thus having curtailed from two overseas assignments, and (2) having served overseas only once, the Promotion Board may have unwittingly discriminated against me for my disability. . . . I make this EEO complaint to determine if I was judged to be lacking promotable qualities, such as performing at overseas assignments that have been beyond my ability to procure or maintain, due to medical clearance status . . . .
The Agency accepted her complaint for investigation, but it characterized her complaint as raising an intentional discrimination claim, rather than a challenge to selection criteria that discriminated against individuals with disabilities:
Whether Complainant was discriminated against based on her physical disability (Multiple Sclerosis/partial loss of mobility and sight) when she found out on October 3, 2008, that the 2008 Foreign Service Selection Board did not promote her to the FS-03 grade level.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ).
In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency determined that Complainant failed to prove that the Agency intentionally discriminated against her on the basis of her disability, because the 2008 Board members all testified that they ranked candidates according to their fulfillment of the core precepts, and they were not aware of Complainant's disability when they reviewed her performance evaluation file.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the final agency decision did not directly address her complaint. "My complaint is that I was passed over for promotion due to requirements for promotion which are discriminatory." In particular, Complainant challenges the portion of the 2008 Procedural Precepts that provides:
While a Foreign Service career will consist of both service abroad and in the United states, a significant portion of the career must be spent in assignments abroad . . . . While serving a stated number of years abroad is not a prerequisite for promotion at any particular grade, Boards are instructed to consider the importance of demonstrated competence in service abroad when reviewing members for promotion.
Complainant asserts that these criteria, which required promotion candidates to spend a significant portion of their careers in assignments abroad and to demonstrate competence in service abroad, tended to screen her out from promotion based on her disability. Her disability limited the time she was medically cleared by the Agency to serve abroad, which in turn prevented her from spending a significant portion of her four-year career in assignments abroad.
Notwithstanding her limited opportunities to serve abroad, Complainant maintains that her promotion was warranted because she demonstrated the capability of performing duties and responsibilities at a higher grade-level, by successfully serving in a position that was two grades higher than her current grade in 2008.
ANALYSIS AND FINDINGS
Standard of Review
The Commission reviews de novo an agency's final decision that is issued without a hearing under 29 C.F.R. � 1614.110(b). 29 C.F.R. � 1614.405(a).
"The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. . . . The Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . will issue its decision based on the Commission's own assessment of the record and its interpretation of the law." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
Discriminatory Application of Selection Criteria
Initially, we find that Complainant alleged that the Agency violated the Rehabilitation Act by using selection criteria for promotion that screened out, or tended to screen out, an individual with a disability, and the Agency erred when it implicitly dismissed this claim by reframing it as a disparate treatment, intentional discrimination claim.
Under the Rehabilitation Act, an agency may not use a selection criterion that screens out or tends to screen out an individual or class of individuals with disabilities, on the basis of disability, unless the agency demonstrates that the selection criterion is job-related and consistent with business necessity. See 29 C.F.R. � 1630.10. A selection criterion is job-related and consistent with business necessity if it accurately measures the ability to perform the job's essential functions (i.e. its fundamental duties). Even where a challenged selection criterion is job-related and consistent with business necessity, if it screens out an individual on the basis of disability, an agency must also demonstrate that the criterion cannot be met, and the job cannot be performed, with a reasonable accommodation. See 42 U.S.C. � 12112(b)(6); 29 C.F.R. �� 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app �� 1630.10, 1630.15(b) and (c).
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 and to ensure that there is a fit between job criteria and an employee's actual ability to do the job. Accordingly, job criteria that even unintentionally screen out, or tend to screen out, an individual with a disability or a class of individuals with disabilities because of their disability may not be used, unless the agency demonstrates that the criteria are job-related to the position and consistent with business necessity. See 29 C.F.R. pt. 1630, app �� 1630.10.
Here, we find the record to be inadequately developed to decide whether the Agency discriminatorily applied selection criteria for promoting Foreign Service Officers to the FS-03 grade level. The record contains no evidence showing the extent to which the 2008 Board considered the portion of a candidate's career spent in assignments abroad, and how they determined whether a candidate had demonstrated competence in service abroad.
Nor does the record contain any evidence showing whether use of these selection criteria screened out or tended to screen out individuals with disabilities. In his summary of the investigation, the investigator noted that he took a sampling of every 50th individual from the list of individuals considered for promotion, and requested that the Agency provide him with current medical information for these comparator employees. But the Agency did not provide this information. The record also does not contain any statements from knowledgeable Agency officials explaining why these selection criteria accurately measure the ability of Foreign Service Officers to perform the fundamental duties of the job at the next grade level.
Because the record has not been adequately developed to allow the Commission to rule on the selection-criteria claim, we VACATE the Agency's final decision and REMAND this matter back to the Agency to further investigate this issue, in accordance with this decision and the Order below.
ORDER
The Agency shall conduct a supplemental investigation, which shall include, but not be limited to, the following actions:
1. The Agency shall ensure that the investigator obtains affidavits from the members of the 2008 Foreign Service Selection Board that promoted Foreign Service Officers to the FS-03 grade level. In their affidavits, the members of the 2008 Foreign Service Selection Board should address what roles the following selection criteria played in evaluating and ranking candidates for promotion:
While a Foreign Service career will consist of both service abroad and in the United States, a significant portion of the career must be spent in assignments abroad. . . . [I]t is the Department's intention to have all members serve a substantial number of years abroad during both the middle and senior grades. While serving a stated number of years abroad is not a prerequisite for promotion at any particular grade, Boards are instructed to consider the importance of demonstrated competence in service abroad when reviewing members for promotion.
How detrimental was it to a candidate's chances for promotion to the FS-03 grade level if a candidate did not spend a signification portion of his or her career in assignments abroad? How did Board members determine whether a candidate demonstrated competence in service abroad, and what importance or weight did Board members place on having FS-03 Foreign Services Officers demonstrate competence in service abroad? Was this one of many factors that the Board considered, or was it more like a necessary (but perhaps insufficient) condition for promotion?
2. The Agency shall ensure that the investigator obtains affidavits from the members of the 2008 Foreign Service Selection Board that promoted Foreign Service Officers to the FS-03 grade level, as well as any relevant Agency official, to explain how the above-referenced selection criteria accurately measure the ability of Foreign Service Officers to perform the fundamental duties of the job at the FS-03 grade level. Additionally, the witnesses should address whether an Foreign Service Officer with a disability, who is eligible for promotion, can meet these criteria with a reasonable accommodation.
3. The Agency shall provide Complainant with the opportunity to introduce any additional evidence into the record.
The Agency shall ensure that the investigator completes the supplemental investigation within ninety (90) calendar days of the date that this decision becomes final. The Agency shall issue Complainant a copy of the supplemental investigation. Within sixty (60) calendar days of the issuance of the supplemental investigation, the Agency shall issue a new final decision on the selection criteria claim. The new final decision must include a notice of Complainant's appeal rights, under 29 C.F.R. � 1614.110(b).
The Agency must send a copy of the supplemental investigation and the new final decision to the Compliance Officer referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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, DC 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 (M0610)
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), at 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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
___8/24/12_______________
Date
1 The record indicates that, "In demonstration of a commitment to Service needs, creditable performance under unusually difficult or dangerous circumstances is particularly relevant. Boards are encouraged to weigh positively creditable and exemplary performance at hardship and danger pay posts . . . ." Id. at 745.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120101287
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101287