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.