01a40002
05-18-2005
Steven M. Souza, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Steven M. Souza v. Department of State
01A40002
May 18, 2005
.
Steven M. Souza,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 01A40002
Agency No. 03-24
DECISION
Complainant appeals to the Commission from the agency's September
8, 2003 decision finding no discrimination. Complainant alleges
discrimination on the basis of disability (right side neck and arm pain,
and mild myofascial pain syndrome) when he was denied an appointment
as an Information Management Specialist in the Foreign Service. In its
September 8, 2003 decision, the agency found that complainant failed to
establish a prima facie case of discrimination. The agency found that
assuming complainant established a prima facie case of discrimination,
he has not shown that he is a qualified individual with a disability
because he has not shown he can perform the essential functions of the
position with or without a reasonable accommodation. The agency found
that it has established a legitimate, non-discriminatory reason for
the non-selection. Specifically, the agency found that complainant
could not obtain worldwide availability.
The record indicates that complainant applied for the position of
Information Management Specialist in the Foreign Service. Complainant
received a conditional offer of employment and subsequently submitted
medical information as required by the agency. He was then notified
that he was issued a Class 5 medical clearance which disqualified him
as a candidate for the position.
According to an affidavit from the Director of Medical Clearances
(Director), complainant was not issued worldwide availability but Class
5 medical clearance. Complainant received a Class 5 medical clearance
because of his treatment plan based on his history and physical exam, he
was taking medication and would need to be posted where there would be a
health care provider to manage care, which is not available at all posts.
According to the Director, complainant had a history of injury and chronic
pain syndrome involving the neck and right arm which required monitoring
as well as prescription and over the counter medication. Furthermore,
the Director affirms that after review of the medical records with a
medical consultation with an Orthopedist, the Orthopedist advised for
a Class 5 clearance.
The record indicates that complainant appealed the clearance decision to
a committee for the Deputy Assistant Secretary for Human Resources which
makes decisions on behalf of the Director General of the Foreign Service.
The committee decided that complainant was not eligible for worldwide
eligibility because his medical records indicate that he could only
be able to serve in an estimated 60 to 70 percent of posts worldwide
because of his medical condition.
We find that the agency has provided sufficient evidence which shows that
the availability for worldwide posting is an essential element of the
Foreign Service position. Complainant has failed to show that he can
meet this essential function of the Foreign Service position even with
a reasonable accommodation. Thus, assuming complainant is an individual
with a disability, we find that he is not able to perform the essential
functions of the position, i.e., assignment to any worldwide post. We
find that complainant has not shown, by a preponderance of the evidence,
that he was discriminated against on the basis of disability. We make
this determination without making a finding as to whether complainant
is an individual with a disability under the Rehabilitation Act.
The agency's decision finding no discrimination is AFFIRMED.
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
May 18, 2005
__________________
Date