The Foreign Service Journal, September 2010

30 F O R E I G N S E R V I C E J O U R N A L / S E P T E M B E R 2 0 1 0 Since two of these cases are pre- sumably still within the legal process, and three have been settled without any indication of liability, I cannot draw any sweeping conclusions from them. Nonetheless, there is a strong presumption that in 2002 and 2003, MED did not assess every candidate for the Foreign Service with careful, individualized attention. Has MED Changed? Are things different in MED now? When I asked for current information about these issues, the department responded, “In addition to the training provided by S/OCR [the Office of Civil Rights] and HR, MED has complied with the EEO training required by the refer- enced EEOC orders.” However, there is some evidence to suggest that some employees may not have gotten the message. Consider the following comment a candidate for en- trance into the Foreign Service posted on the Secretary’s Sounding Board regarding his spring 2009 experience with MED: “I have been working in Iraq for a year now as a con- tractor on an RRT [Regional Reconstruction Team]. … The medical requirements for my company require a phys- ical from my personal physician, which I passed. After being on post for six months, I applied for a Foreign Serv- ice limited post, and was given a Class 2 clearance! … “Despite having three physicians agree on my course of treatment [for degenerative disc disease] and ability to serve in a hardship/danger zone, one young doctor was able to derail my appointment, and attempted to engage in a debate over the treatment recommended by two specialists and a family doctor in areas [in] which he had no expert qualifications, rather than evaluate my ability to do my job.” In a phone conversation on June 23, this individual gave me permission to quote his Sounding Board posting. He added that he had even sent two medical journal articles to the doctor showing that his treatment regimen was the “Cadillac” standard of treatment for his condition, but that the doctor in MED had disputed this, as well. His experience sounds all too much like that of the four litigants, in that his individual situation may not have been considered. However, the candidate decided not to appeal the decision, so we cannot assess whether MED’s clearance decision would have stood under further scrutiny. Let me turn now to another prob- lem that can arise when the medical clearance process intersects with HR’s personnel policies. Class 5 Equals Second Class By law, Foreign Service personnel may not serve continuously in do- mestic assignments for more than eight years without a waiver. The implementing regulation (3 FAM2424.2b) re- duces this to five years. This is colloquially known as “the 5/8 rule.” A few FS employees request 5/8 waivers every year to allow them to remain in domestic assignments due to their Class 5 restricted medical clearances. HR then asks MED whether it “supports” the employee’s petition. The date and level of the medical clearance are in HR’s computers, and HR can tell at a glance if the clearance is current and allows an overseas assignment (Class 1 or 2) or not (Class 5). So why is HR asking the question? Does it hope that MED will change its mind? A far more pernicious policy is HR’s unwritten rule that if an employee who is eligible to retire requests a 5/8 waiver, HR will pressure the employee to retire or switch to a Civil Service position. I experienced this pressure in 2006-2007, but I refused to acquiesce. Commenting on this, a former Foreign Service director general wrote, “If someone is never going to be able to work overseas, at a certain point I think it would be appropriate for them to consider converting to the Civil Service or retiring. Per- haps with the funding we would have by freeing up that slot we could hire another Foreign Service officer who could be assigned overseas.” In other words, if the Foreign Service could get rid of a disabled person, then they could hire someone better. MED appears to buy into this view. In October 2009, a senior official in that office told my career development of- ficer that “I have reviewed the documentation onMs. Shuh. This will be her third request [for a 5/8 waiver]. These are always difficult cases, and the question is at what point do we stop issuing a 5/8 waiver knowing that the patient has a medical condition that limits her from going overseas. I suppose the patient needs to decide to move from the For- eign Service to the Civil Service, and this may need to come from the DG’s office. At this point MED strongly supports the 5/8 extension be granted to Carol Shuh.” F O C U S State has taken a number of steps to increase opportunity for employees with disabilities.