531 F.3d 936 (D.C. Cir. 2008), 07-5101, Adams v. Rice

Docket Nº:07-5101.
Citation:531 F.3d 936
Party Name:Kathy E. ADAMS, Appellant v. Condoleezza RICE, Secretary of State, Appellee.
Case Date:July 18, 2008
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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531 F.3d 936 (D.C. Cir. 2008)

Kathy E. ADAMS, Appellant


Condoleezza RICE, Secretary of State, Appellee.

No. 07-5101.

United States Court of Appeals, District of Columbia Circuit.

July 18, 2008

Argued April 11, 2008.

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Appeal from the United States District Court for the District of Columbia, (No. 05cv00941).

Ellen K. Renaud argued the cause for appellant. With her on the briefs was David H. Shapiro . Richard L. Swick entered an appearance.

Daniel B. Kohrman and Melvin Radowitz were on the brief for amici curiae American Association of Retired Persons and American Cancer Society in support of appellant.

John C. Truong , Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: HENDERSON , TATEL , and KAVANAUGH , Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL .

Dissenting opinion filed by Circuit Judge HENDERSON .

TATEL , Circuit Judge:

Appellant Kathy Adams, a candidate for the United States Foreign Service, passed the required entrance examinations and received a medical clearance, only to learn thereafter that she had been diagnosed with stage-one breast cancer . Upon hearing the news, the State Department, expressing concern that many of its overseas posts lack the follow-up care it believed Adams required, revoked her medical clearance, disqualifying her from the Foreign Service. Adams sued under the Rehabilitation Act of 1973, which prohibits federal agencies from discriminating in employment against disabled individuals-including those with a “record of" a disability, 29 U.S.C. § 705(20)(B)(ii) . In her complaint, she alleged that her surgical treatment rendered her cancer-free and able to work anywhere in the world without requiring specialized follow-up care. Without allowing discovery, the district court granted summary judgment to the State Department, concluding among other things that Adams had no record of a disability as defined in the statute. For the reasons set forth in this opinion, we reverse.


Viewed in the light most favorable to Adams, the evidence tells the following story. See Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007) (explaining standard of review on summary judgment).

The Foreign Service, an arm of the State Department, requires its officers to be “available to serve in assignments throughout the world," 22 U.S.C. § 3901(a)(4) , and frequently assigns junior

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Foreign Service officers to overseas locations that-due to factors such as “unreliable air service, poor or non-existent medical facilities, and unreliable postal or other delivery systems" -are considered “hardship posts." John M. O'Keefe Decl. ¶ 3; see generally Taylor v. Rice, 451 F.3d 898, 900-01 (D.C.Cir.2006) (explaining Foreign Service hiring requirements and assignment procedures). Candidates who pass the Foreign Service's rigorous written and oral examinations receive conditional offers of employment, requiring, among other things, that they “receive a medical examination and be issued a medical clearance." 3 U.S. DEP'T OF STATE, FOREIGN AFFAIRS MANUAL (“FAM" ) § 1931.1(b) (2002); see also 22 C.F.R § 11.1 (establishing Foreign Service testing and application procedures). The State Department's Office of Medical Services (“MED" ) performs the required medical examinations and issues “Class 1" clearances to examinees “who have no identifiable medical conditions that would limit assignment abroad." 3 FAM § 1931.3-1(1). The State Department refers to Class 1-approved candidates as “worldwide available." Taylor, 451 F.3d at 901. Those failing to obtain such clearances automatically receive “Class 5" clearances, 3 FAM § 1931.1(b), meaning they “have a medical condition which is incapacitating or for which necessary specialized medical care is best obtained in the United States," id. § 1931.3-1(3). Because individuals with Class 5 clearances are deemed unable to serve safely outside the United States, they are declined appointments to the Foreign Service unless they request and receive an administrative waiver of the medical standards for employment. Such waivers result in a “Class 2" clearance, meaning the applicant “can be treated adequately at some but not all posts outside the United States." Bruce L. Cole Decl. ¶ 7; see also 3 FAM § 1931.3-1(2). Rarely granted, waivers are issued on the basis of factors such as the extent of worldwide availability and extraordinary skills possessed by the applicant.

Appellant Kathy Adams applied to the Foreign Service and by April 2003 had passed both the written and oral examinations. In July, after undergoing the required medical screening, Adams learned that she had received a Class 1 unlimited medical clearance for worldwide assignment. In mid-August, however, Adams was diagnosed with stage-one breast cancer .

After discussing treatment options with her physicians, Adams elected to undergo a mastectomy and simultaneous reconstructive surgery, reasoning that it “would provide the best option for me to be able to resume my normal life activities." Adams Decl. ¶ 10. The surgery took place in mid-September. According to Adams, after the procedure she “could not work at all" for three weeks, “was unable to perform household chores for several weeks," and “was unable to care for [her]self properly and ... drive for about two weeks." Id. ¶ 12. Two months later, as part of her breast cancer treatment , Adams had her ovaries and fallopian tubes removed, a procedure necessitating an additional week of recovery.

As Adams grappled with her medical diagnosis and treatment, the State Department continued processing her application. In late September it sent Adams her final security clearance indicating that she was “eligible for appointment to the Foreign Service" and had “been added to the Consular register of those awaiting appointment." Letter from Patricia Evans, Human Resources Specialist, Bd. of Exam'rs for the Foreign Serv. to Kathy Adams (Sept. 25, 2003). After receiving this letter on October 2, Adams learned from State Department human resources official Patricia Evans that she was ranked seventh

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out of 200 consular candidates due to her high score on the Foreign Service Examination. Evans told Adams that “barring some unforeseeable catastrophe," she would receive an appointment to the Foreign Service beginning in January 2004. Adams Decl. ¶ 15; Patricia Evans Decl. at 2.

The next day, Adams told the State Department about her breast cancer diagnosis . Upon learning this information, MED nurse Rebecca Forsman asked Adams for a “typed summary report from your primary treating physician" that included pathology reports, blood-work results, a summary of care, and a “[t]reatment plan detailing the type and frequency of follow-up care/monitoring needed." Email from Rebecca Forsman to Kathy Adams (Oct. 10, 2003). Forsman warned Adams “that there is a significant possibility that we will not be able to re-issue a Class One (worldwide available) medical clearance in the near future," but assured her that “once all of the MD documentation has been received, the providers here will review this carefully." Id. In a telephone conversation, Adams recalls, “Ms. Forsman remarked that it would be in my best interest to remain in the United States ... after an occurrence of breast cancer , rather than to join the Foreign Service and live outside the U.S." Adams Decl. ¶ 24.

Responding to the State Department's request for information, Adams had her primary physician, Doctor Mark A. O'Rourke, send a letter to the State Department explaining that she had been successfully treated for early stage breast cancer and was “in completed remission with an excellent prognosis." Letter from Dr. Mark A. O'Rourke 1 (Nov. 19, 2003). According to Dr. O'Rourke, Adams was “cancer-free," had “no job limitations whatsoever," could “undertake a full schedule of work, travel, and vigorous sports," and was “entirely able to work overseas for long periods of time." Id. at 1-2. As for follow-up care, Adams needed one pill per day of Tamoxifen (an anti-estrogen drug), an annual mammogram (recommended for all women Adams's age), and-crucially for this case-a “clinical breast exam at 6-month intervals for the next 5 years." Id. at 1. Adams, he concluded, “is a remarkable individual with excellent health, high energy, determination, and enthusiasm. I can say with complete confidence that this history of breast cancer will not slow her down one bit at all." Id. at 2.

After reviewing the submitted materials, MED informed Adams in mid-December that she was no longer “worldwide available" and issued her a Class 5 clearance. Explaining this decision, MED Director Laurence Brown later stated that Adams “disclosed to MED ... that she had been diagnosed with Stage 1 breast cancer and had undergone an operation in August 2003," and that “[o]n that basis, MED determined that she was not eligible for service worldwide." Brown Decl. ¶ 14. Specifically, MED based its decision on its conclusion that “the Department could not guarantee ... [Adams] access to the required medical follow-up and surveillance for her condition ... at all overseas assignments" since only 53% of all Foreign Service posts had “surgeons and/or oncologists" available to perform a semi-annual breast exam. Id. ¶ 18. Echoing this rationale, MED nurse Forsman explained that “[t]he problem was that [Adams] needed to be seen every six months for follow-up care (preferably by a specialist)." Forsman Decl. at 3.

Attempting to salvage her candidacy, Adams sought an administrative waiver from MED. In support, Dr. O'Rourke sent another letter emphatically endorsing Adams's ability to work “anywhere in the

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