United States Department of State v. Coombs

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 15, 2007 Decided April 6, 2007

No. 06-5114

UNITED STATES DEPARTMENT OF STATE,

APPELLANT

v.

G. CRAIG COOMBS,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 04cv00025)

Tara Leigh Grove, Attorney, U.S. Department of Justice,

argued the cause for appellant. With her on the briefs were

Peter D. Keisler, Assistant Attorney General, Jeffrey A. Taylor,

U.S. Attorney, and Marleigh D. Dover, Attorney. Herbert E.

Forrest, Attorney, entered an appearance.

Bridget R. Mugane argued the cause and filed the brief for

appellee.

Before: GARLAND and KAVANAUGH, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

2

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

SILBERMAN, Senior Circuit Judge: The United States

Department of State appeals the district court’s grant of appellee

G. Craig Coombs’s motion for summary judgment. In the

district court, State challenged a decision of the Foreign Service

Grievance Board (“FSGB” or “Board”) granting relief to

Coombs. The district court, reviewing the Board’s decision

under the Administrative Procedure Act, denied State’s appeal.

We reverse.

I

Coombs joined State in 1990 and, in 1998, was assigned to

be an administrative and consular officer at the United States

Consulate General in Surabaya, Indonesia. Coombs’s year 2000

employee evaluation report (“EER”) was critical of his

performance in Surabaya and did not recommend him for

promotion. Based on the 2000 EER, Coombs was “low-ranked”

by the Selection Board, which competitively evaluates Foreign

Service officers across each class. As a result, Coombs was

referred to the Performance Standards Board (“PSB”) for

consideration for selection out of the Foreign Service. The PSB

recommended that Coombs be selected out of the Foreign

Service, and State notified Coombs of his impending separation

in February 2001. Soon thereafter, State’s regional medical

officer, Dr. Riesland, learned from Coombs’s colleagues at the

Surabaya consulate that Coombs was exhibiting troubling

behavioral problems. Under the (apparently false) impression

that Coombs was still waiting to undergo a performance review,

Dr. Riesland arranged for Coombs to meet with State’s regional

psychiatrist, Dr. Lauer, for a clinical interview. After a two and

a half hour examination, Dr. Lauer determined that Coombs had

“no discernible pathology other than probable characterological

3

issues.” Dr. Lauer observed that “no psychiatric medication

seems indicated at present.”

Coombs submitted an amended agency-level grievance in

May 2001 contesting his separation. His grievance contained an

affidavit from Dr. Bristol, a board-certified psychiatrist

unaffiliated with State, who, having reviewed prior EERs for

Coombs, diagnosed him with Obsessive-Compulsive Personality

Disorder and Acute Adjustment Disorder during the time period

covered by the 2000 EER. According to Dr. Bristol’s affidavit,

Coombs’s personality disorders became “exaggerated and

dysfunctional” due to the stress of his difficult work

environment in Surabaya. Coombs, relying on this affidavit,

argued that the 2000 EER was “falsely prejudicial” under the

terms of the Foreign Service Act (“FSA”), see 22 U.S.C.

§ 4131(a)(1)(A), (E), because it was based on behavior

attributable to Coombs’s undiagnosed mental illness. State

denied Coombs’s agency-level grievance on September 21,

2001.

Coombs appealed the agency-level decision on his

grievance to the FSGB. In the proceeding before the Board,

State disputed Coombs’s claim of mental disability and pointed

to the psychiatric examination performed by Dr. Lauer, wherein

Lauer attributed Coombs’s behavior to “character problems.”

On January 27, 2003, the Board issued its decision, FSGB Case

No. 2001-34, stating, inter alia, that Coombs’s poor

performance was in fact behavior attributable to psychiatric

illness, that the EER based on his poor performance was falsely

prejudicial, and that State’s ignorance of Coombs’s condition

furnished even greater cause to set aside his 2000 EER. In

arriving at its decision, the Board had determined that Dr.

Bristol’s findings were more credible than those of Dr. Lauer

because Bristol’s familiarity with Coombs’s condition was of

longer duration than Lauer’s, and because Bristol’s explanation

4

of Coombs’s behavior was far more detailed and persuasive.

Along with other collateral relief, the Board ordered State to

rescind Coombs’s proposed separation, to expunge his 2000

EER, and to provide him with an appropriate regular assignment

unless he was “medically disqualified.” State then requested

that the Board reconsider its decision, but the Board rejected

State’s arguments for reconsideration.

Prior to the Board’s decision in Case No. 2001-34 (i.e.,

Coombs’s original grievance appeal), Coombs received another

unsatisfactory rating in his 2001 EER. Coombs then filed a

second agency-level grievance with respect to the 2001 report,

alleging that it was falsely prejudicial for the same reasons the

2000 EER had been deemed so. State denied Coombs’s second

agency-level grievance.1 Coombs appealed State’s decision to

the FSGB, and the Board, relying on its determination in Case

No. 2001-34, decided the 2001 EER was (also) falsely

prejudicial. As relief, the Board ordered that the EER be

expunged and that any adverse decision based on the EER be

rescinded.

State then sought review of the Board’s decisions with

respect to the 2000 and 2001 EERs in federal district court.

Coombs moved for judgment on the pleadings, and State cross-

moved for summary judgment. The district court, treating

Coombs’s motion as one for summary judgment, granted it.

State’s motion was denied.

II

1

In denying Coombs’s second grievance, State noted that it had

requested reconsideration of FSGB Case No. 2001-34, which request

was still before the Board.

5

State objects to the Board’s determination on two grounds.

First, it is argued that Coombs, by asserting the EERs were

“falsely prejudicial” under § 4131(a)(1)(A) and (E), is really

making a claim for disability discrimination pursuant to

§ 4131(a)(1)(H)(iii), which allows Foreign Service officers to

bring a grievance for any discrimination prohibited by the

Rehabilitation Act.2 Under the Rehabilitation Act, a government

2

The FSA provides, in relevant part:

(a)(1) Except as provided in subsection (b) of this section, for

purposes of this subchapter, the term “grievance” means any act,

omission, or condition subject to the control of the Secretary

which is alleged to deprive a member of the [Foreign] Service

who is a citizen of the United States . . . of a right or benefit

authorized by law or regulation or which is otherwise a source of

concern or dissatisfaction to the member, including—

(A) separation of the member allegedly contrary to laws or

regulations, or predicated upon alleged inaccuracy, omission,

error, or falsely prejudicial character of information in any part

of the official personnel record of the member;

...

(E) alleged inaccuracy, omission, error, or falsely prejudicial

character of information in the official personnel record of the

member which is or could be prejudicial to the member;

...

(H) any discrimination prohibited by—

...

(iii) section 791 of Title 29 . . . .

6

employee has a valid claim only if he or she can show, inter

alia, that the employer knew or had reason to know about the

employee’s alleged impairment when it made an adverse

employment decision. See 29 U.S.C. § 791(g); 42 U.S.C. §

12112(a); Crandall v. Paralyzed Veterans of Am., 146 F.3d 894,

896-97 (D.C. Cir. 1998). Although Coombs’s grievance

explicitly listed the Rehabilitation Act (as incorporated in the

FSA) as potentially providing jurisdiction over his claim, he

does not allege that State knew or had reason to know about his

alleged disability when it drafted his evaluation reports.

Moreover, even if an employer is shown to have acted with

knowledge of an employee’s disability, only “qualified”

employees—those who can perform the essential functions of

their job with (or without) “reasonable accommodation”—are

protected from discrimination. See 42 U.S.C. §§ 12111(8), (9),

12112(a). State argues that the Board, by directing the agency

to reinstate Coombs unless “medically disqualified,” has

imposed a broader obligation on State than that which the

Rehabilitation Act requires, and an obligation that is counter to

another policy of Congress—that the nation have “a career

foreign service, characterized by excellence and

professionalism,” assuring the “separation of those who do not

meet the requisite standards of performance.” 22 U.S.C. §

3901(a)(1), (b)(1).

It is State’s view that the Board has stretched its authority

under the Foreign Service Act to condemn EERs that are

“falsely prejudicial,” and in doing so has run afoul of

congressional policy set forth in the Rehabilitation Act. And if

there was any doubt as to congressional intent—which State

does not concede—it would be dispelled by the specific

inclusion of the Rehabilitation Act as one of the various

grievances a Foreign Service officer may bring under the

22 U.S.C. § 4131.

7

Foreign Service Act. See 22 U.S.C. § 4131(a)(1)(H)(iii).

Indeed, State emphasizes that Coombs explicitly relied on the

Rehabilitation Act in his initial agency-level grievance, and

again in his appeal to the Board. The Board’s treatment of his

falsely prejudicial claim as qualitatively different from a

Rehabilitation Act claim simply rewards “artful pleading,”

according to State.

As an alternative position, State argues that the Board’s

interpretation of the FSA is contrary to law. According to this

argument, the two EERs were not falsely prejudicial because

they were not in any sense “false.” The government concedes

that the Board has the primary authority to interpret the

grievance provision of the Foreign Service Act.3 Were the

phrase ambiguous, then, the Board would be entitled to Chevron

deference, and we would uphold any reasonable interpretation

of the statute. Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 844 (1984). But State

argues that the phrase “falsely prejudicial” is in no way

susceptible to the Board’s interpretation.

We take up State’s second argument first. State argues that

the term “false” necessarily refers to an intentional

misstatement. We disagree. The word is ambiguous; it could

mean intentionally false—that may well be its more typical

usage—but it is not an inevitable meaning. “False” can also

mean simply “not true.” The Board’s adoption of the second

meaning is certainly authorized under Chevron. 467 U.S. at

843-45. However, that is not enough to bring the Board home

because, whether intentional or not, “false” does, at a minimum,

mean untrue, and nothing in either EER is contrary to fact in that

3

Given State’s concession, we need not decide whether, with

respect to the FSA’s grievance provisions, we should defer to the

interpretations of the Board (and not the Secretary of State).

8

sense. Coombs essentially argues that the EERs are incomplete

because they do not include a valid psychiatric explanation for

his behavior. But to be incomplete is not the same as being

“false”—particularly when the person completing the EER is

entirely unaware of the omitted information. Thus, the Board’s

interpretation of “falsely prejudicial” strikes us as an

impermissible interpretation of ambiguous language (Chevron

Step II).

We are puzzled, however, because the Foreign Service Act

also authorizes the Board to correct a grievant’s personnel

record if it finds the record is prejudicial because of an

“omission.” See 22 U.S.C. § 4131(a)(1)(E). That would seem

to be a possible statutory basis for the Board to rely on in

granting relief to Coombs. We, of course, do not so conclude

because it would be up to the Board to make that decision in the

first instance.

The more difficult issue is the interrelationship of the

Rehabilitation Act and the Foreign Service Act. State, it will be

recalled, argues that Congress’s specific attention to the

personnel problems of disabled employees “occupies the field,”

so to speak. On State’s reading of the two statutes, the

Rehabilitation Act provides the exclusive form of relief for

disabled Foreign Service officers. As a consequence, the Board

may not circumvent the Rehabilitation Act by relying on the

general grievance language of the FSA to provide relief to an

officer if that officer cannot make out a cause of action under the

Rehabilitation Act itself—either because he or she can not show

discriminatory intent, or because he or she cannot be reasonably

accommodated.

State relies heavily on Brown v. General Services

Administration, 425 U.S. 820 (1976), in which the Supreme

Court held that Title VII of the Civil Rights Act of 1964

9

provides the sole judicial remedy for federal employees

complaining of job-related discrimination. In that case, the

plaintiff brought an employment discrimination claim in federal

district court after the thirty-day limitation period prescribed by

Title VII had expired. Faced with this procedural bar, plaintiff

sought to rely on other, less-onerous, anti-discrimination

remedies. Id. at 823-25. The Court refused to allow the plaintiff

to elude Title VII’s thirty-day requirement by “artful pleading.”

Id. at 833.

Coombs contends his case is quite different because he is

not asserting a discrimination claim. Indeed, he freely admits

that State had no knowledge of his disability when it created his

EER. There is no reason, according to Coombs, to read a statute

banning discrimination as implicitly prohibiting the Board from

remedying an incomplete personnel record that became the basis

of adverse employment action.

Assuming arguendo that Coombs is correct—a point we

need not decide—it seems to us that the Board’s remedy is still

problematic, as well as unexplained. In the Rehabilitation Act,

for example, Congress provided that State may knowingly

discharge a disabled employee who cannot be reasonably

accommodated, and under the Act could thus a fortiori

discharge a disabled employee who cannot be so accommodated

when State has no knowledge of the employee’s disability. Yet

the Board’s order directing Coombs’s reinstatement unless

“medically disqualified” appears to place a substantially greater

burden on State. The relief granted by the Board is, at best,

ambiguous on this point: How the term “medically disqualified”

relates to “reasonable accommodation,” the Board does not say.

In particular, it does not say whether its order would require

Coombs’s reinstatement even if he cannot perform the essential

functions of the job (even with a reasonable accommodation for

his disability).

10

The Board does not appear to have even considered whether

it is reasonable to require reinstatement of such an employee, in

light of the demands of the Foreign Service. We think such an

omission makes the Board’s decision arbitrary and capricious.

We therefore vacate and remand for the Board to reconsider its

interpretation of 22 U.S.C. § 4131(a)(1)(A) and (E) and whether

its ordering Coombs’s reinstatement is appropriate in light of

both the Rehabilitation Act and the demands of the Foreign

Service. The other relief granted by the Board (i.e.,

expungement of the 2000 and 2001 EERs, insertion of gap

memoranda, extension of time to compete for promotion, and

attorney’s fees) is collateral to the Board’s decision to rescind

Coombs’s separation, and the Board should reevaluate it

accordingly.

III

For the foregoing reasons, the judgement of the district

court is reversed and the decision of the Board vacated.