451 F.3d 898 (D.C. Cir. 2006), 05-5257, Taylor v. Rice

Docket Nº:05-5257.
Citation:451 F.3d 898
Party Name:Lorenzo TAYLOR, Appellant v. Condoleezza RICE, in her official capacity as United States Secretary of State, Appellee.
Case Date:June 27, 2006
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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451 F.3d 898 (D.C. Cir. 2006)

Lorenzo TAYLOR, Appellant

v.

Condoleezza RICE, in her official capacity as United States Secretary of State, Appellee.

No. 05-5257.

United States Court of Appeals, District of Columbia Circuit.

June 27, 2006

Argued April 27, 2006.

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Appeal from the United States District Court for the District of Columbia (No. 03cv01832).

Jonathan Givner, pro hac vice, argued the cause for appellant. With him on the briefs was Leslie M. Hill.

Arthur B. Spitzer was on the brief for amicus curiae HIV Medicine Association in support of appellant.

Teal Luthy Miller, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Peter D. Keisler, Assistant Attorney General, and Marleigh D. Dover, Special Counsel.

Before: SENTELLE, HENDERSON, and RANDOLPH, Circuit Judges.

OPINION

RANDOLPH, Circuit Judge.

Lorenzo Taylor appeals from a district court order granting the Secretary of State's motion for summary judgment. Taylor claimed that the State Department violated the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796l, when it refused to hire him as a Foreign Service Officer because he is HIV-positive. This case presents the question whether an otherwise qualified individual with HIV would pose a direct threat to himself if employed by the U.S. Foreign Service, which requires officers to be "available to serve in assignments throughout the world." 22 U.S.C. § 3901(a)(4).

I.

Taylor applied to the Foreign Service in July 2001. After extending a conditional

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offer of employment, the State Department declined to hire him because he is HIV-positive, and perhaps because he also has a pulmonary condition. Taylor sued the Secretary of State under § 501 of the Rehabilitation Act, alleging that the State Department discriminated against him on the basis of his HIV-positive status. Discovery followed, and the Secretary moved for summary judgment, which the district court granted. The evidence, viewed in Taylor's favor, see Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), was as follows.

The mission of the U.S. Foreign Service, part of the State Department, is to advocate American foreign policy, protect American citizens, and promote American interests throughout the world. Foreign Service Officers are of two types. Generalists perform traditional diplomatic responsibilities, including trade promotion, political and economic reporting, and consular services and protection. Specialists have positions requiring special skills, such as construction engineering, information technology, and regional security.

During the period relevant to this case, the Foreign Service maintained 263 posts around the world. About 65 percent of these posts are considered "hardship" posts--locations generally outside of Western Europe, Canada, and Australia--because factors such as climate, quality of local health care, and pollution levels render living conditions more arduous than in the United States. The State Department frequently assigns junior Foreign Service Officers to hardship posts during their first four years of service to determine their qualifications for tenure as career Foreign Service Officers.1 Because serving in a hardship post is challenging, the State Department seeks to equalize employee service at these posts and reward those who complete such service.2

To ensure that it hires qualified applicants to fill these posts, the Foreign Service has a rigorous hiring process. Candidates must successfully take the Foreign Service Written Exam and pass an oral assessment. See 22 C.F.R. § 11.1(b), (c). They then join the List of Eligible Hires, from which candidates are drawn in rank order to receive conditional offers of employment based on the hiring needs in various career tracks within the Foreign Service. The offers are conditional because they are subject to satisfactory completion of security, medical, and overall suitability reviews. See id.§ 11.1(d), (e), (f). These reviews are designed to ensure that in all respects candidates are able to fulfill Congress's aspiration for Foreign Service Officers: to be "representative of the American people, aware of the principles and history of the United States and informed of current concerns and trends in American life, knowledgeable of the affairs, cultures, and languages of other countries, and available to serve in assignments throughout the world." 22 U.S.C. § 3901(a)(4).

Most relevant to this appeal are the State Department's medical review procedures

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for Foreign Service candidates. See id.§§ 3941(b), 4084(b)(1). According to State Department regulations, the purpose of the medical examination is "to determine the candidate's physical fitness to perform the duties of a Foreign Service officer on a worldwide basis and . . . to determine the presence of any physical, neurological, or mental condition of such a nature as to make it unlikely that they would be able to function on a worldwide basis." 22 C.F.R. § 11.1(e)(2). The State Department's Foreign Affairs Manual requires that "[a]ll candidates who have received conditional offers of employment in the Foreign Service . . . receive a medical examination and be issued a medical clearance." 3 U.S. Department of State, Foreign Affairs Manual (FAM) § 1931.1(b). Class 1 clearances are "[i]ssued to examinees who have no identifiable medical conditions that would limit assignment abroad." Id.§ 1931.3-1(1). The State Department refers to those with a Class 1 clearance as "worldwide available." Class 2 clearances are "[i]ssued to examinees who have a medical condition that requires periodic and/or specialized medical evaluation or treatment, or whose medical condition would be aggravated by conditions at specific posts."3Id.§ 1931.3-1(2). Class 5 clearances--there is no Class 3 or Class 4--are "[i]ssued to examinees who have a medical condition which is incapacitating or for which necessary specialized medical care is best obtained in the United States. Employees . . . with a Class 5 medical clearance may not be assigned outside the United States." Id.§ 1931.3-1(3). Class 1 clearance is necessary for a Foreign Service candidate to complete the medical examination successfully.

Upon completing the medical examination, candidates not receiving Class 1 clearances are issued Class 5 clearances and "may request . . . an administrative waiver of the medical standards for employment."4 Id.§ 1931.1(b). Waiver decisions are made by the Director General of the Foreign Service or a Deputy Assistant Secretary of Human Resources, and such decisions are final. Id.§ 1931.2(a), (c). Various factors enter the waiver calculus, including the percentage of posts for which the candidate is eligible, the permanence of the disqualifying condition, the nature of the position sought, and any extraordinary skills the candidate possesses. Id.§ 1931.2(b). The Secretary represents that because a candidate's special skills are relevant to waiver determinations, id.§ 1931.2(b)(4), the vast majority of waivers go to Specialist candidates, not Generalists.

The State Department has specific policies about hiring HIV-positive candidates and retaining current employees who contract HIV.5 As a general rule, the State

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Department considers "HIV positive individuals, even those who are stable with respect to their disease, a[s] not [being] worldwide available" and therefore ineligible for Class 1 medical clearance. This follows from the State Department's belief that HIV-positive Foreign Service Officers can safely be stationed only at overseas posts that have both a physician with experience treating HIV-positive patients and laboratories comparable to U.S. domestic standards, capable of performing testing to monitor the virus's course. Qualified physicians and laboratories were available at approximately 68 percent of the State Department's overseas posts at times pertinent to this appeal.6 Despite the general rule, "it is [the State Department's] policy to retain Foreign Service members who become HIV positive after appointment," and to assign them "abroad as their medical conditions permit." This is consistent with the State Department's treatment of current employees who develop some kind of medical condition that limits their availability.

Foreign Service Officers who experience medical complications--including HIV--while serving in overseas posts have limited options. To the extent satisfactory local medical facilities are available, they are expected to seek treatment there. But when local treatment is not available--which can happen in hardship posts--the Foreign Affairs Manual provides that an officer "shall be eligible to travel at government expense to the nearest facility" where he can get the treatment he needs. 3 FAM § 686.1-1. However, "[t]ravel will not be authorized for employees . . . to take routine medical examinations or to receive routine immunizations."7 Id. § 686.1-4. Because Foreign Service Officers undergo comprehensive physical examinations roughly every two years, an officer who develops a physical or mental health condition limiting future availability--including HIV--can be re-assigned a Class 2 clearance.8] Thus, even though

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candidates for the Foreign Service without Class 1 clearances generally are rejected because they are not "worldwide available," experienced officers with the same limitations often are retained and dispersed as their health allows because the State Department values their experience and expertise.

Taylor submitted his application to become a Generalist Foreign Service Officer after serving for many years in jobs preparing him for a career in foreign diplomacy. He passed the written and oral examinations and received an offer of employment in November 2001. The offer was conditioned on his passing the medical and...

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