Taylor, Lorenzo v. Rice, Condoleeza

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 27, 2006 Decided June 27, 2006

No. 05-5257

LORENZO TAYLOR,

APPELLANT

v.

CONDOLEEZZA RICE, IN HER OFFICIAL CAPACITY AS UNITED

STATES SECRETARY OF STATE,

APPELLEE

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.

2

Before: SENTELLE, HENDERSON, and RANDOLPH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

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 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 (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,

3

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

1

Assignments are made through a bidding process in which

Foreign Service Officers submit requests for desired assignments

drawn from a list of current openings. After close consultation with

an officer, the Bureau of Human Resources selects an appropriate

assignment. The Bureau takes into account personal and professional

factors, though the needs of the Foreign Service remain paramount.

2

For this reason, the Secretary represents that the State

Department would have a morale problem if it hired individuals who

cannot serve in hardship posts, particularly if this required other

officers to serve in back-to-back hardship posts.

4

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 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

5

condition would be aggravated by conditions at specific posts.”3

Id. § 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

3

Class 2 clearance is used for anyone capable of serving at 99

percent or fewer overseas posts.

4

Though the record is unclear, it appears that the Foreign

Service reserves Class 2 clearance for candidates who receive waivers

and for current employees who develop medical conditions requiring

a downgrade in classification. For example, between 1998 and 2002

the Foreign Service hired twelve employees who were denied Class 1

clearances for medical reasons (asthma), but granted waivers and

given Class 2 clearances. A current officer who contracts HIV

typically is given a Class 2 clearance.

6

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 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

5

As described by Dr. Joel E. Gallant, Associate Professor of

Medicine in the Division of Infectious Diseases at the Johns Hopkins

University School of Medicine in Baltimore, “HIV is a retrovirus that

infects a particular type of white blood cell known as the CD4+

lymphocyte.” When a person’s CD4+ lymphocytes decrease in

number, “the body becomes less able to fight infections that it

otherwise would be able to defeat. . . .. If not treated, the loss of

CD4+ cells eventually results in death, usually due to ‘opportunistic

infections’ that appear in people with suppressed immune systems.”

For this reason, HIV-positive individuals must monitor the number of

CD4+ lymphocytes in their bodies on a regular basis. Until 1996, an

HIV infection was invariably fatal. At that time, however, the

introduction of a new class of antiretroviral medications combined

with other drugs, proved able to suppress HIV and to prevent

deteriorating compromise of patients’ immune systems. See generally

Bragdon v. Abbott, 524 U.S. 624, 633-37 (1998).

7

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

6

This figure comes from Dr. Michael H. Merson’s affidavit

testimony. Dr. Merson formerly worked at the Department of Health

and Human Services’s Centers for Disease Control and Prevention and

served as the Dean of Public Health and Chair of Yale University

School of Medicine’s Department of Epidemiology and Public Health

for ten years. He testified that “in July 2002, one likely could find

physicians qualified to monitor and treat HIV-positive patients at

approximately 217 (82%) of the State Department’s 263 overseas

posts. In July 2002, one likely could find both qualified physicians

and laboratory facilities capable of performing both CD4+ and viral

load testing . . . at approximately 178 (68%) of the State Department’s

263 overseas posts.” At times relevant to this appeal, the Secretary

believed Taylor could serve at fewer than half of all posts “because of

the lack of HIV-capable physicians and/or the unavailability of HIV-

capable laboratories.” Final Br. for Def.-Appellee 18.

8

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 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 security clearance screenings.

When he reported to the Examination Clinic of the State

Department Medical Office in December 2001, he was given a

one-page document entitled “HIV TESTING INFORMATION,”

which stated that “[b]ecause new applicants for the Foreign

Service must be worldwide available (Class 1), those who are

HIV positive will not be eligible for employment.” Taylor

proceeded with the examination and returned a week later to

7

The record suggests that this is because the State Department

“considers it unsafe to post individuals where they cannot receive their

needed routine care locally,” and because travel in and out of many

overseas locations is costly, unreliable, and sometimes dangerous.

8

If a Foreign Service Officer develops a medical condition

requiring his classification to be downgraded to Class 2, the State

Department “makes every effort to accommodate” the individual by

limiting his post assignments to locations where appropriate medical

care is available, including hardship posts.

9

discuss his results with Dr. Lori Brandshaft in the Examination

Clinic. Although the results of the HIV test were not yet

reported, he voluntarily revealed his HIV-positive status to Dr.

Brandshaft.

Taylor had learned of his infection when he tested positive

for HIV antibodies in March 1985. He describes his condition

today as “a chronic manageable condition” that “requires only

periodic monitoring and the use of anti-retroviral medication,

not constant medical attention.” Dr. Douglas J. Ward, Taylor’s

treating physician, monitors his HIV infection three times a

year, though he has told Taylor that as a Foreign Service Officer

he would need to be monitored only twice a year. Dr. Ward is

on record saying that Taylor “faces no greater health risk in

countries with substandard health care than individuals who are

not HIV-positive.”

On January 3, 2002, Dr. Ward sent a letter to Dr. Brandshaft

describing Taylor’s stable condition and stating that it should

not pose an obstacle to his employment in the Foreign Service.

Four days later Taylor met with the Chief of the Examination

Clinic, who reiterated that Taylor was not eligible for

employment as a Foreign Service Officer because he is HIV-

positive. On January 17, 2002, the State Department notified

Taylor officially that he would not be hired.9 A few days later

Taylor sent a letter seeking a medical waiver. His request was

rejected by letter in July 2002. In August 2002, when Taylor

sent a letter to the State Department expressing his opinion that

its hiring policy unfairly discriminated against people with HIV,

the Director General of the Foreign Service stated in a

responsive letter that Taylor had been denied employment not

9

A contemporaneous State Department evaluation form dated

December 2001 cited only Taylor’s HIV-positive status as the reason

he was disqualified for overseas duty.

10

just because of his HIV status, but also because of his “asthma.”

(This apparently was the first time that the State Department

indicated to Taylor that his pulmonary condition had anything

to do with the decision not to hire him.10)

Taylor had noted his pulmonary condition on a Foreign

Service medical examination form, reporting that he had asthma

and that he took three different asthma medications daily. He

also reported having at least one acute asthma episode since

August 2001 that required inhalation therapy. Based on this

information, the State Department concluded that Taylor “could

not be safely posted to approximately 30% of . . . overseas

locations.”

Taylor developed evidence in the district court indicating

that he was misdiagnosed with asthma, and that he experiences

eosinophilic pneumonia – a benign, self-limiting inflammatory

condition that affects his lungs. His doctor, Charles A. Read,

Jr., Associate Professor of Medicine at Georgetown University

Medical Center, stated that “there is no reason that [Taylor]

should not be able to travel and live anywhere in the world,” as

his “prognosis is very good, and his condition is very easy to

treat, even from afar.”

After the State Department rejected his waiver request,

Taylor exhausted his administrative remedies and filed suit in

district court. The parties conducted discovery and the Secretary

moved for summary judgment. The district court granted the

10

An internal State Department “fact sheet” dated June 28,

2002, which was used to evaluate Taylor’s waiver request, lists two

separate issues under the heading “MEDICAL PROBLEM”: HIV

infection and “moderate obstruction to airflow (asthma) with some

improvements after bronchodilators” that has nonetheless “never

normalized.”

11

Secretary’s motion, concluding that “reasonable worldwide

availability” – the ability to serve at many but not all of the State

Department’s overseas posts – is an essential function of the

Foreign Service, and that, because of his HIV-positive status,

Taylor is not capable of fulfilling that function without posing

a direct threat to himself. In so holding, the court determined

that the significant risk to Taylor’s health could not be reduced

by any reasonable accommodation without also imposing undue

hardship on the State Department. The court did not evaluate

the Secretary’s alternative argument that Taylor’s pulmonary

condition was an independent justification for the State

Department’s decision not to hire him.

Taylor claims that the district court wrongly resolved

genuine issues of material fact in the Secretary’s favor and erred

as a matter of law in concluding that his proposed

accommodations are unreasonable and would impose undue

hardship on the State Department. Taylor describes the two

accommodations he proposes as follows: (1) “the Department

[c]ould grant him Class II clearance and place him at a post

where he can access local HIV physicians and diagnostic

laboratories,” or (2) “the Department [c]ould permit him to use

his allotted leave time to access routine medical care while

posted abroad.” Appellant’s Final Opening Br. 13-14. The

Secretary defends the district court’s decision, and also claims

that “Taylor’s asthma provides a separate and independent

reason for affirming the district court’s decision.” Final Br. for

Def.-Appellee 35.

II.

Rule 56(c) of the Federal Rules of Civil Procedure provides

that summary judgment “shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that

12

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” To

determine what factual disputes were “material” and whether the

Secretary was entitled to judgment as a matter of law, “the

logical place to begin is with the ‘law,’ here the Rehabilitation

Act of 1973, and its amendments.” Langon v. Dep’t of Health

& Human Servs., 959 F.2d 1053, 1056 (D.C. Cir. 1992);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Our

review is de novo. Breen v. Dep’t of Transp., 282 F.3d 839, 841

(D.C. Cir. 2002).

Taylor accuses the Secretary of violating § 501 of the

Rehabilitation Act, 29 U.S.C. § 791, the “basic tenet” of which

“is that the Government must take reasonable affirmative steps

to accommodate the handicapped, except where undue hardship

would result,” Barth v. Gelb, 2 F.3d 1180, 1183 (D.C. Cir.

1993). See 22 U.S.C. § 3905(e)(4) (expressly applying § 501 to

the Foreign Service). Section 501(b) requires federal employers

to take “affirmative action” when making “hiring, placement,

and advancement” decisions regarding “individuals with

disabilities.” 29 U.S.C. § 791(b).11 As relevant here, the statute

defines “individual with a disability” as anyone who “has a

physical or mental impairment which substantially limits [a]

major life activit[y],” “has a record of such an impairment,” or

“is regarded as having such an impairment.” Id.

12

§ 705(20)(B)(i)-(iii).

11

More precisely, the statute requires federal agencies to

create affirmative action “plans,” 29 U.S.C. § 791(b), but courts have

“recognized private actions challenging individual employment

decisions.” Langon, 959 F.2d at 1057.

12

The parties have stipulated that Taylor is an “individual

with a disability” within the meaning of the Rehabilitation Act

because he is HIV-positive. See Bragdon v. Abbott, 524 U.S. 624,

13

The statute instructs courts to use the “standards” of the

Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-

12213, to evaluate a complaint like Taylor’s “alleging

nonaffirmative action employment discrimination.” 29 U.S.C.

§ 791(g);13 see 29 C.F.R. § 1614.203(b) (applying the

regulations set forth in 29 C.F.R. pt. 1630 to claims under

§ 501). The Disabilities Act prohibits discrimination against any

“qualified individual with a disability.” 42 U.S.C. § 12112(a)

(emphasis added); see 29 C.F.R. § 1630.4. An “individual with

a disability” under the Rehabilitation Act, 29 U.S.C.

§ 705(20)(B), therefore must be “qualified” to be protected by

the Disabilities Act – that is, he or she, “with or without

reasonable accommodation,” must be able to “perform the

essential functions of the employment position that such

individual holds or desires.” 42 U.S.C. § 12111(8); see 29

C.F.R. § 1630.2(m); Breen, 282 F.3d at 841 (applying 42 U.S.C.

§ 12111(8) to a plaintiff suing under § 501 of the Rehabilitation

Act).

Defendants have at their disposal a number of defenses to

Rehabilitation Act liability, two of which the Secretary employs

in this case. First, a defendant may avoid liability by

demonstrating that the employee’s disability “pose[s] a direct

threat to [the employee’s] health or safety” in a manner that

cannot be reasonably accommodated. 29 C.F.R.

637-39 (1998) (concluding that HIV infection is a disability that can

substantially limit the “major life activity” of reproduction); see also

29 C.F.R. pt. 1630, app. (note discussing § 1630.2(j)) (“HIV infection

[is] inherently substantially limiting.”).

13

Section 791(g) adopts “the standards applied under title I of

the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.)

and the provisions of section 501 through 504, and 510, of the

Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and

12210), as such sections relate to employment.”

14

§ 1630.15(b)(2); see id. § 1630.2(r); see also Chevron U.S.A.

Inc. v. Echazabal, 536 U.S. 73, 86-87 (2002).14 Second, a

defendant may avoid liability by “demonstrat[ing] that the

accommodation” – even if reasonable – “would impose an

undue hardship on the operation of its business.” 29 C.F.R.

§ 1630.9(a); accord id. § 1630.15(d); see US Airways, Inc. v.

Barnett, 535 U.S. 391, 401-02 (2002); Barth, 2 F.3d at 1186-87;

see also Langon, 959 F.2d at 1060. The district court concluded

that the Secretary was entitled to judgment as a matter of law on

both theories. We begin with the “direct threat” defense.

An employer may require, as a “qualification standard,”

“that an individual . . . not pose a direct threat to [his] health or

safety . . . in the workplace.” 29 C.F.R. § 1630.15(b)(2); see

also 42 U.S.C. § 12113(b). “Direct threat” in this context

“means a significant risk of substantial harm to the health or

safety of the individual . . . that cannot be eliminated or reduced

by reasonable accommodation.” 29 C.F.R. § 1630.2(r); see also

42 U.S.C. § 12111(3). In Chevron U.S.A. Inc. v. Echazabal, the

Supreme Court explained what this entails:

The direct threat defense must be “based on a reasonable

medical judgment that relies on the most current medical

knowledge and/or the best available objective evidence,”

and upon an expressly “individualized assessment of the

individual’s present ability to safely perform the essential

functions of the job,” reached after considering, among

other things, the imminence of the risk and the severity of

the harm portended.

14

In light of our disposition, we need not decide who bears the

burden of proving that the plaintiff poses a direct threat to his health

or safety. See generally Branham v. Snow, 392 F.3d 896, 906 n.5 (7th

Cir. 2004) (identifying circuit split on burden of proof). The parties

did not argue the issue.

15

536 U.S. at 86 (quoting 29 C.F.R. § 1630.2(r)). As the district

court recognized, to evaluate “the individual’s present ability to

safely perform the essential functions of the job,” id. (quoting 29

C.F.R. § 1630.2(r)) (internal quotation mark omitted), we must

first determine what functions are essential – a matter the parties

contest.

Essential functions are “the fundamental job duties of the

employment position.” 29 C.F.R. § 1630.2(n)(1). To determine

which job duties are fundamental, one must consider, among

other things, the Secretary’s “judgment as to what functions of

a job are essential,” 42 U.S.C. § 12111(8), “[t]he work

experience of past incumbents in the job,” 29 C.F.R.

§ 1630.2(n)(3)(vi), and “[t]he current work experience of

incumbents in similar jobs,” id. § 1630.2(n)(3)(vii). The

essential function at issue here is a Foreign Service Officer’s

ability to be worldwide available, and the question is to what

extent Foreign Service Officers must be available to serve at

overseas Foreign Service posts. In particular, must officers be

able to serve at nearly “100 percent” of overseas posts, as the

Secretary claims, or only at a “substantial number” of overseas

posts, as Taylor claims? The district court concluded that

“some reasonable level of worldwide availability is an essential

function of the job,” and that Taylor’s availability to serve in, at

most, 68 percent of overseas posts was unreasonable. We

believe this conclusion cannot be reached without resolving

material factual disputes in the Secretary’s favor.

The Foreign Service Act and regulations thereunder indicate

that Foreign Service Officers must serve “abroad,” 22 U.S.C.

§ 3984(a), “in assignments throughout the world,” id.

§ 3901(a)(4), and “on a worldwide basis,” 22 C.F.R.

§ 11.1(e)(2). See 29 C.F.R. § 1630.2(n)(2)(i) (“A job function

may be considered essential . . . because the reason the position

exists is to perform that function . . ..”). These general terms do

16

not specify how many posts officers must be available to fill.

The fact that a candidate cannot go everywhere in the world

does not necessarily mean that he is not available “on a

worldwide basis.” 22 C.F.R. § 11.1(e)(2). For example, after

stating that candidates “must be available for worldwide

assignment,” the Foreign Service Career-Candidate Guidebook

2001-2002 states that “Foreign Service employees must be able

to serve in a wide variety of overseas posts.” See 42 U.S.C.

§ 12111(8) (“[I]f an employer has prepared a written description

before advertising or interviewing applicants for the job, this

description shall be considered evidence of the essential

functions of the job.”). The Foreign Service statute and

regulations therefore do not indicate precisely what level of

worldwide availability is essential for Foreign Service Officers.

The record no more conclusively establishes the Secretary’s

position. There is evidence suggesting that, in practice, the

Secretary does not require every Foreign Service Officer to be

available to serve everywhere in the world. This is apparent

from the fact that some candidates unable to serve at every

overseas Foreign Service post are nevertheless hired with Class

2 clearances. The Secretary admits that between 1998 and 2002

the Foreign Service hired twelve candidates who were given

Class 2 medical clearances because of their asthma. See Breen,

282 F.3d at 842-43. Other evidence is to the same effect.

Ambassador A. Peter Burleigh, who spent more than thirty years

as a Foreign Service Officer, testified that “the day-to-day

realities of Foreign Service assignment procedures and practices

. . . often deviate substantially from th[e] formal requirements.”

See 29 C.F.R. § 1630.2(n)(3)(vi) (considering “[t]he work

experience of past incumbents” as “[e]vidence of whether a

particular function is essential”); 29 C.F.R. pt. 1630, app. (note

discussing § 1630.2(n)) (same). He explained that “[a]t any

given time . . . between one-quarter and one-third of in-service

[Foreign Service Officers] . . . are not available for worldwide

17

assignment” for a variety of reasons. He further testified that

“[t]his is true for junior, mid-level, and senior [Foreign Service

Officers].”15 One of the Secretary’s witnesses – William R.

Mullican, Office Director in the Bureau of Human Resources –

gave similar testimony, estimating that “15% of the Generalists

and 16% of the Specialists are currently restricted from world-

wide availability due to medical conditions,” a figure that does

not account for other Foreign Service Officers who might be

unavailable for other reasons.

The record therefore reveals a genuine issue of material fact

regarding the extent to which Foreign Service Officers must be

available to serve in overseas posts. Compare Swanks v. Wash.

Metro. Area Transit Auth., 179 F.3d 929, 934-35 (D.C. Cir.

1999). For this reason, the Secretary was not entitled to

summary judgment on the ground that Taylor’s availability to

serve in 68 percent of overseas posts rendered him unqualified

to serve in the Foreign Service.

The district court went on to conclude that Taylor would

pose a “‘significant risk’ to his own health or safety” if he were

posted anywhere in the world,16 and that no reasonable

15

This testimony is also counter to the Secretary’s evidence

that while some experienced officers do not need to be able to travel

everywhere, candidates and junior officers must be available to travel

almost everywhere in the world. The same is true of Ambassador

Burleigh’s testimony that “there is no difference between the essential

functions of the job for a . . . applicant and an in-service [officer].”

16

As discussed above, the “direct threat” defense turns on

whether an individual can “safely perform the essential functions of

the job.” Echazabal, 536 U.S. at 86 (quoting 29 C.F.R. § 1630.2(r))

(internal quotation mark omitted). Because the parties genuinely

dispute what functions are essential, the district court’s determination

that Taylor would pose a significant risk to himself in performing

18

accommodation could eliminate that risk without imposing

undue hardship on the State Department. Taylor’s quarrel is

with the court’s conclusion that any such risk could not

reasonably be accommodated without imposing undue hardship

on the State Department. Recall the two accommodations that

Taylor proposed: (1) granting him Class 2 clearance and only

placing him at overseas posts “where he can access local HIV

physicians and diagnostic laboratories,” or, alternatively, (2)

sending him to any overseas post, but “permit[ting] him to use

his allotted leave time to access routine medical care.”

Appellant’s Final Opening Br. 13-14.

An accommodation may be “reasonable on its face, i.e.,

ordinarily or in the run of cases,” Barnett, 535 U.S. at 401;

accord Barth, 2 F.3d at 1187, or it may be reasonable as applied,

i.e., “on the particular facts” of the case, Barnett, 535 U.S. at

405. Whether a proposed accommodation is reasonable and

whether it imposes undue hardship are separate inquiries. But

the analyses often overlap, see Sch. Bd. of Nassau County v.

Arline, 480 U.S. 273, 287 n.17 (1987); Barth, 2 F.3d at 1187,

especially when evaluating as-applied claims of reasonableness

– the inquiry particularly pertinent here.17 This is because an

employer’s undue hardship claim depends on “the particular

circumstances” of the case, Barnett, 535 U.S. at 402; see also

Barth, 2 F.3d at 1187, just as an employee’s claim of as applied

those functions depended on disputed facts.

17

Taylor argues that his accommodations are reasonable on

their face and as applied to the circumstances of this case. Because we

find genuine issues of material fact concerning whether the

accommodations are reasonable as applied to the facts of Taylor’s

case, we leave for another day his arguments concerning the facial

reasonableness of his proposed accommodations, unless specifically

addressed in the text.

19

reasonableness turns “on the particular facts” of the case,

Barnett, 535 U.S. at 405.18

The Disabilities Act does not provide a comprehensive

definition of “reasonable accommodation,” but it gives examples

of what the term “may include.” 42 U.S.C. § 12111(9); 29

C.F.R. § 1630.2(o)(2); see id. § 1630.2(o)(1) (defining

“reasonable accommodation” as “[m]odifications or

adjustments” to application processes, work environment, and

access to benefits and privileges of employment). Among these

are accommodations such as providing a “modified work

schedule[]” for an employee, 42 U.S.C. § 12111(9)(B), or

adjusting the circumstances under which the employee performs

his job responsibilities, 29 C.F.R. § 1630.2(o)(2). While

Taylor’s proposed accommodations might be seen as falling

generally within these examples, still we must determine

whether his proposed modifications or adjustments are

reasonable. An accommodation may be unreasonable “if it

either imposes ‘undue financial and administrative burdens’ . . .

or requires ‘a fundamental alteration in the nature of [the

employer’s] program.’” Arline, 480 U.S. at 287 n.17 (1987)

(quoting Se. Cmty. Coll. v. Davis, 442 U.S. 397, 410, 412

(1979)).

An accommodation – even a reasonable one – imposes

undue hardship on an employer if it “requir[es] significant

difficulty or expense, when considered in light” of several

statutory factors. 42 U.S.C. § 12111(10)(A); see 29 C.F.R.

§ 1630.2(p)(1). Those factors include “the nature and cost of the

accommodation,” 42 U.S.C. § 12111(10)(B)(i), and the

18

We are mindful that Taylor must prove the accommodations

are reasonable and that the Secretary must prove they impose undue

hardship, but the burden allocation makes no difference here because

we find genuine issues of material fact.

20

“composition, structure, and functions of the [employer’s]

workforce,” id. § 12111(10)(B)(iv). See also 29 C.F.R.

§ 1630.2(p)(2); id. pt. 1630, app. (note discussing § 1630.2(p)).

An employer invoking the undue hardship defense must use

these factors to “show special (typically case-specific)

circumstances that demonstrate undue hardship in the particular

circumstances.” Barnett, 535 U.S. at 402.

As to Taylor’s first proposed accommodation – his request

for Class 2 clearance and placement only at overseas posts

where HIV physicians and diagnostic laboratories are available

– the district court found it unreasonable because it requires the

State Department “to waive an essential function of the job.”19

Even if an accommodation that effectively dispenses with an

essential function is unreasonable, see Robertson v.

Neuromedical Ctr., 161 F.3d 292, 295 (5th Cir. 1998), the

parties genuinely dispute the level of worldwide availability

essential for Foreign Service Officers. We therefore have no

way of knowing whether this proposed accommodation would

effectively do away with an essential function. In any event, the

Secretary’s claim that granting Taylor Class 2 clearance is

unreasonable and would impose undue hardship is suspect

because the Secretary admits that between 1998 and 2002 the

Foreign Service hired twelve employees who were denied Class

1 clearances because of asthma, but granted waivers and Class

2 clearances.20

19

Likewise, the court concluded the accommodation would

impose undue hardship because “[t]he inevitable impact of such an

accommodation would be a de facto elimination of worldwide

availability as a pre-requisite for all similarly-situated entry-level

[officers].”

20

Nor can we agree with the district court’s conclusion that

Taylor would experience “significantly-beneficial treatment” because

21

As to Taylor’s second proposed accommodation –

permitting him to use his allotted leave time to obtain medical

care while posted abroad – the district court concluded this was

unreasonable for three reasons. The court first held that to

determine how often Taylor would need to travel for “routine

medical monitoring,” the State Department could rely on the

Department of Health and Human Services’s Guidelines for the

Use of Antiretroviral Agents in HIV-1-Infected Adults and

Adolescents, which recommends medical monitoring three or

four times a year, rather than on Taylor’s treating physician, Dr.

Ward, who testified that Taylor needed medical monitoring only

twice a year. The court then concluded that because Taylor

proposed less routine medical care than Health and Human

Services has indicated is safe, this accommodation is

unreasonable.

In the language of the Rehabilitation Act, the district court

seems to have concluded that it would be unreasonable “in the

run of cases” for an employee to receive less medical care than

public authorities recommend is safe. Barnett, 535 U.S. at 401.

other officers would have to serve in the “least-desirable and most-

dangerous locations in his stead,” thereby creating undue hardship on

the State Department. The Secretary presents no evidence supporting

this proposition. And there is evidence suggesting that Taylor could

serve in at least 112 hardship posts around the world. The record

gives us no way of knowing whether others would have to serve in the

“least-desirable and most-dangerous locations,” and no basis for

concluding that this proposed accommodation “would ultimately result

in the State Department having to change the very nature of its

program.” There is also the Foreign Service’s bidding process for

assignments, which takes personal and professional considerations

into account when assigning officers overseas. See supra note 1. For

the same reasons, the Secretary’s representations regarding the

detrimental affect on employee morale if Taylor were accommodated

are not determinative. See supra note 2.

22

If that is correct21 – and we do not say it is or is not – Taylor’s

claim that his “special circumstances warrant a finding that . . .

the requested ‘accommodation’ is ‘reasonable’ on the particular

facts” still remains. Id. at 405. Taylor presented medical

testimony that he faces no specific risk of experiencing acute

complications as a result of his HIV status. Dr. Ward testified

that Taylor’s immune system is strong enough to enable him to

serve throughout the world without increased risk of harm and

that he needs medical monitoring only twice a year. This

evidence is more than enough to create a genuine issue of

material fact regarding the reasonableness of the proposed

accommodation.

Accepting for the sake of argument Dr. Ward’s estimate of

how often Taylor would need medical monitoring, the district

court found a second reason why Taylor’s second proposed

accommodation fails – that it is unreasonable for “an employee

to miss several days [of work] to obtain medical care in another

city or country at the government’s expense.” Taylor disputes

both the number of days he would miss for medical care and the

significance of the expense. The State Department grants to

junior Foreign Service Officers thirteen days of annual leave, ten

days of leave for U.S. federal holidays, and thirteen sick days

each year, the latter being designed to allow Foreign Service

21

But see Bragdon, 524 U.S. at 650 (“In assessing the

reasonableness of petitioner’s actions, the views of public health

authorities . . . are of special weight and authority. The views of these

organizations are not conclusive, however.”) (citations omitted); id. at

651-52 (indicating that a court should not rely on CDC Guidelines or

ADA Policy Statements that “recommend[] certain universal

precautions” but “do not necessarily contain implicit assumptions

conclusive of the point to be decided. The Guidelines set out the

CDC’s recommendation that the universal precautions are the best

way to combat the risk of HIV transmission. They do not assess the

level of risk.”).

23

Officers “to obtain medical, dental, or optical care.” An

employee’s proposed accommodation seeking to use leave time

to receive necessary medical care will be reasonable in many

circumstances. See 29 C.F.R. pt. 1630, app. (note discussing

§ 1630.2(o)) (identifying as a reasonable accommodation

“permitting the use of accrued paid leave or providing additional

unpaid leave for necessary treatment [and] making employer

provided transportation accessible”); see also Criado v. IBM

Corp., 145 F.3d 437, 443 (1st Cir. 1998); Hudson v. MCI

Telecomms. Corp., 87 F.3d 1167, 1168-69 (10th Cir. 1996).

This is precisely what Taylor proposes doing, and he has

presented evidence suggesting that the leave to which junior

Foreign Service Officers are entitled is sufficient for him to

receive the medical care he would need. His evidence tended to

show that every Foreign Service post is within one day’s travel

of a city with adequate HIV medical care and that his medical

visits would involve examinations typically lasting but thirty

minutes. This conflicts with the Secretary’s evidence suggesting

that Taylor would need to spend between six to ten days away

from work for each medical visit. Nor is it clear from the record

that it would be unreasonable for the government to pay for

Taylor’s travel expenses.22 Ambassador Burleigh testified that

“it is actual day-to-day [State] Department practice” to allow

Foreign Service Officers “to travel a few times a year for routine

medical monitoring,” and that this “does not pose a significant

or unusual burden on the Department, either financially or

administratively.”

The district court’s third reason for finding unreasonable

Taylor’s second proposed accommodation is that it would

22

On appeal, Taylor represents that he “has not requested that

the Department bear the financial cost of any . . . travel.” Appellant’s

Final Opening Br. 26. Obviously if he were to bear the cost of travel

himself this would not burden the government.

24

contravene the State Department’s prohibition against

authorizing travel for routine medical care – a policy “created

based on legitimate concerns for the safety” of State Department

employees. See 3 FAM § 686.1-4.23 Ambassador Burleigh’s

testimony quoted above regarding the day-to-day practice of the

State Department bears on this subject. If Taylor’s proposal

turns out to be consistent with the State Department’s day-to-

day practice, that would tend to support its reasonableness. And

as a legal matter, the fact that an accommodation would require

a change in policy does not necessarily demonstrate

unreasonableness or undue hardship. See Barnett, 535 U.S. at

397 (“[T]he fact that the [proposed] difference in treatment

violates an employer’s disability-neutral rule cannot by itself

place the accommodation beyond the Act’s potential reach.”);

29 C.F.R. § 1630.2(o)(2)(ii) (“Reasonable accommodation may

include . . . appropriate adjustment or modifications of . . .

policies . . ..”); McAlindin v. County of San Diego, 192 F.3d

1226, 1237 (9th Cir. 1999); McWright v. Alexander, 982 F.2d

222, 227 (7th Cir. 1992).24 Because there were disputed material

23

The final basis for the district court’s undue hardship

determination was that “the State Department would have to change

its current medical policy, which prohibits employees from traveling

out of the country at government expense for routine medical

examinations or to receive routine immunizations.”

24

In its undue hardship analysis, the district court did not

think the State Department is required “to fundamentally alter the

nature of its medical program” for Taylor. That is correct as a general

matter. See Arline, 480 U.S. at 287 n.17. But when an employer

“admits that it restricts the assignments of certain of its current

[employees] for medical and family reasons,” as the Secretary does,

“there can be no claim that such an accommodation would mark a

‘fundamental alteration’ in the nature of [the employer’s] program.”

Barth, 2 F.3d at 1188. Moreover, as discussed above, Taylor has

presented evidence genuinely disputing whether the State Department

25

facts regarding Taylor’s second accommodation, the Secretary

was not entitled to summary judgment on either of the asserted

defenses – direct threat or undue hardship.

The Secretary urges us to affirm on an altogether different

basis – that Taylor’s pulmonary condition renders him

unqualified for the Foreign Service. We evaluate an agency’s

claim that “it refused a job application . . . for reasons unrelated

to the person’s handicap,” Barth, 2 F.3d at 1186, under the

framework established by McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), Barth, 2 F.3d at 1185 (discussing

McDonnell Douglas and Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248 (1981)). The initial burden is on the plaintiff to

produce evidence making out a prima facie case of

discrimination. If the plaintiff does so, the employer has the

burden of presenting evidence supporting its claim that it had a

non-discriminatory reason for the personnel action. If the

employer carries this burden, it is up to the plaintiff to prove to

the trier of fact that the employer’s reason was pretextual and

that intentional discrimination occurred. Barth, 2 F.3d at 1185

(discussing Burdine, 450 U.S. at 252-56).25 We shall assume, as

does the Secretary, that Taylor made out a prima facie case. The

question is whether the Secretary produced evidence that

routinely allows travel for medical care of this sort.

25

The Secretary misapprehends this framework in arguing that

Taylor’s failure to “contend[] that his asthma constituted a disability

. . . is fatal.” Final Br. for the Def.-Appellee 36. Taylor has not tried

to make any showing regarding asthma; it is the Secretary who is

asserting it in defense. It cannot be “fatal” to Taylor that he did not

anticipate the Secretary’s allegedly non-discriminatory basis for not

hiring him. The Secretary bears the burden of producing evidence that

Taylor’s application was rejected for non-discriminatory reasons.

Barth, 2 F.3d at 1185.

26

Taylor’s pulmonary condition was a “non-discriminatory

reason” for rejecting his application to the Foreign Service.

On that subject there are numerous unsettled factual issues.

For instance, because the Secretary admits hiring twelve Foreign

Service candidates with asthma between 1998 and 2002, the fact

that a candidate has a pulmonary disorder may not in itself be

disqualifying. The parties dispute the severity of Taylor’s

pulmonary condition. The record does not indicate how Taylor

compares to the candidates with asthma who the State

Department has hired in the past. And as discussed above, the

parties genuinely dispute the extent to which Foreign Service

Officers must be available to serve worldwide – a dispute that

affects any determination about whether Taylor’s pulmonary

condition disqualifies him from performing this alleged essential

function. Even if the Secretary had established that Taylor’s

pulmonary condition was a non-discriminatory disqualifying

characteristic, Taylor has some evidence suggesting that his

pulmonary condition was a pretext – that his HIV-positive status

is the true reason he was not hired. See 10B CHARLES ALAN

WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2732.3,

at 198-205 (3d ed. 1998) (“[I]n suits charging . . . disability

discrimination, summary judgment often has been denied

because of the presence of material fact questions involving

motive or intent.”) (footnote omitted). In light of these factual

disputes, the Secretary was not entitled to summary judgment on

this theory.

For the foregoing reasons the judgment of the district court

is reversed and the case is remanded for further proceedings.

So ordered.