Complainant,v.John F. Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Feb 13, 2013

0120090802 (E.E.O.C. Feb. 13, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

John F. Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120090802

Agency No. DOSF06807

DECISION

On November 8, 2008, Complainant filed an appeal from the Agency’s 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 deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

The mission of the Foreign Service is to implement United States foreign policy abroad, and
Foreign Service Officers (FSOs) represent American interests overseas. The Service has the
6/8 Year Rule on continuous domestic service to ensure that FSOs perform their fair share of
overseas assignments. To remain in continuous domestic service for more than six years, an
FSO would have to obtain a waiver from a designated senior level Director in Human
Resources; to remain in continuous domestic service for more than eight years, an FSO would
have to obtain a waiver from the Director General of the Foreign Service; and only the
Director General can approve a waiver to remain in continuous domestic service for more than
ten years under “exceptionally compelling circumstances.” Waivers for six or eight years
may be granted in one to two year increments, but a waiver that extends domestic service
beyond ten years may only be granted in one year increments.

At the time of events giving rise to this complaint, Complainant was a Foreign Service Officer
with a Class 5 medical clearance. An FSO with a Class 5 medical clearance cannot serve
overseas. Complainant has had a Class 5 medical clearance since 1991. This clearance does
not however mean that she is relieved of the requirement to apply for a waiver. She first did
so in 1997 and has been granted one ever since. Complainant has worked in the Bureau of
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Consular Affairs' Office of Overseas Citizens Services (1991-1994); at the Foreign Service
Institute (1994 to 1996); in the Bureau of Democracy, Human Rights and Labor (1996-1998);
in the Bureau of International Narcotics and Law Enforcement (1998-2000); and in the Bureau
of Consular Affairs, Office of Consular Systems and Technology (2000-2007). At the time
giving rise to this complaint, Complainant was doing desk work and liaison work in the Human
Smuggling and Trafficking Center in the Bureau of International Narcotics and Law
Enforcement.

In the Fall of 2006, Complainant was preparing to apply for a waiver which would permit her
to remain in continuous domestic service July 2007 through July 2008. The waiver request
was formally submitted in November 2006. Given that Complainant had become retirement
eligible and had not served overseas since 1991, during the processing of the waiver, she was
asked by Human Resources to consider retirement or to consider converting into the Civil
Service. Complainant rejected both options, and her waiver request was granted in March
2007.

On June 29, 2007 Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of disability when:

1. she was denied reasonable accommodation when her waiver request was not granted
in a timely manner;
2. she was harassed when asked to consider retirement or conversion to the Civil
Service; and
3. the waiver request required her to disclose confidential medical information to non-
medical officials.

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’s decision assumed Complainant was a qualified individual with a disability within
the meaning of the Rehabilitation Act. The decision concluded that Complainant was not
denied reasonable accommodation in that she was granted the waiver and was not harmed
during the period of time it took for it to be administratively processed. While Complainant
speculated that the uncertainty of the waiver may have harmed her bidding prospects, there is
no evidence that it did so. The decision further found no evidence of harassment. Given that a
retirement eligible employee was making the kind of waiver request Complainant was making,
the decision found nothing unreasonable or abusive in asking the Human Resources staff to
determine whether the employee was willing to consider retirement or converting into the Civil
Service. Finally, the Agency concluded that Complainant’s confidential medical information
was shared only with Human Resources employees who were processing her request for
reasonable accommodation. The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.
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ANALYSIS AND FINDINGS

Upon review of the record, we need not reach the question of whether Complainant was a
qualified individual with a disability and we need not reach the question as to whether the
waiver at issue was a form of reasonable accommodation within the meaning of the
Rehabilitation Act. We agree with the Agency that Complainant was not harmed by the
processing of her waiver request. Her waiver was granted three full months before it took
effect in July 2007, and we fail to see, under the facts presented in this case, how that can be
characterized as a delay. Contrary to Complainant’s assertions, the Agency’s inquiries
regarding her willingness to retire or convert to a Civil Service position were not threats.
Given the undisputed fact that the Foreign Service Act of 1980, as amended, 22 U.S.C. § 3901
et seq., requires all Foreign Service employees to serve a significant portion of their careers
overseas, and limits the number of years Foreign Service employees may spend in continuous
domestic service, we find the inquiry into whether Complainant, who had not been overseas in
over fifteen years, was willing to explore alternative employment options reasonable and
legitimate. We note that when Complainant informed the Agency that she did not wish to
retire or join the Civil Service, her waiver was granted – again underscoring the fact that
Complainant was not harmed. Finally, with regard to the improper disclosure of the medical
information, there is no evidence to support such a finding.

In closing, Complainant has also argued that requiring employees with Class 5 medical
clearances to apply for waivers is discriminatory since the clearance itself precludes them from
serving overseas. We are not, however, persuaded by Complainant's argument that it would
violate the Rehabilitation Act for the waiver program to be used to provide a means for
ensuring that medical clearances remain updated, thus guaranteeing that individuals whose
medical conditions improve can return to overseas or otherwise expanded duty.

CONCLUSION

Based on a thorough review of the record and Complainant’s contentions on appeal, for the
reasons set forth above, we AFFIRM the Agency’s final decision.

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:

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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

(S0610)
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

(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
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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

February 13, 2013
Date