The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Plaintiff Kathy Adams brings this action under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., to challenge her rejection for a position with the State Department on the grounds that it was disability discrimination. Plaintiff had passed the necessary exams to enter the Foreign Service, but was denied medical clearance, and therefore the position, after she was diagnosed and treated for breast cancer. Currently pending before the Court is defendant's motion to dismiss or, in the alternative, for summary judgment, which argues that plaintiff cannot make out a prima facie case for disability discrimination. Upon consideration of the motion, the response and reply thereto, the arguments made at the hearing on March 20, 2007, the applicable law, and the entire record, the Court determines that plaintiff is unable to demonstrate that she is disabled within the definition of the Rehabilitation Act. Therefore, for the reasons stated herein, defendant's motion to dismiss or, in the alternative, for summary judgment is GRANTED.
I. Foreign Service Hiring Process
The United States Foreign Service requires its officers to be "available to serve in assignments throughout the world." 22 U.S.C. § 3901(a)(4). The Foreign Service has approximately 250 offices worldwide, 65% of which are considered "hardship" posts due to factors such as climate and local health care quality. See Taylor v. Rice, 451 F.3d 898, 900 (D.C. Cir. 2006). Because serving in a hardship post is challenging, the State Department seeks to equalize employee service at these posts, and frequently assigns junior Foreign Service Officers to hardship posts during their first four years of service. Id.
Candidates for the Foreign Service must pass rigorous written and oral examinations. Id. Those who pass are placed on the List of Eligible Hires, from which candidates are drawn in rank order to receive conditional offers of employment. Id. The offers are conditional because they are subject to satisfactory completion of security, medical, and overall suitability reviews. Id. At issue in this case is the medical review process.
"The State Department's Foreign Affairs Manual requires that 'all candidates who have received conditional offers of employment in the Foreign Service . . . receive a medical examination and be issued a medical clearance.'" Id. at 901 (citing 3 Dep't of State Foreign Affairs Manual § 1931.1(b)). The medical examinations are conducted by the Office of Medical Services ("MED"). After the medical exam, Class 1 clearances are issued to examinees who have no identifiable medical conditions that would limit assignment abroad, i.e., they are "worldwide available." Id. Class 2 clearances are issued to examinees who have medical conditions that would partially limit the locations where they could be safely posted. See id. Class 5 clearances are issued to those who cannot be safely posted outside the United States. Id.
New candidates for Foreign Service positions must receive Class 1 clearance in order to be further considered. Id. Candidates not receiving Class 1 clearances are automatically issued Class 5 clearances and may request an administrative waiver of the medical standards for employment. Id. The Class 2 classification is thus only used for existing employees or new applicants who are granted an administrative waiver. See id. at 901 n.4. Medical waivers are rare, and decided on the basis of factors such as the extent of worldwide availably and extraordinary skills possessed by the applicant. Id. at 901; see also Decl. of Bruce Cole, Def.'s Ex. 12.
II. History of Plaintiff's Case
Plaintiff applied to become a Foreign Service Officer and had passed both the written and oral examinations by April 2003. Decl. of Kathy Adams, Pl.'s Ex. 19, ¶¶ 2-3. She initially received a Class 1 medical clearance from MED on July 10, 2003. Id. ¶ 8. In mid-August of 2003, however, she was diagnosed with Stage I breast cancer. Id. ¶ 9. Plaintiff underwent a mastectomy to treat her cancer in September 2003, and took approximately four weeks to recover from the surgery. Id. ¶¶ 10-12. During that month, plaintiff was placed on the register for consular officers awaiting appointment into the Foreign Service. See September 25, 2003 Letter from State Dep't, Def.'s Ex. 7. Plaintiff was informed on October 2 that she ranked seventh out of 200 consular candidates, and thus would almost certainly be appointed to the Foreign Service in January 2004. Adams Decl. ¶ 15. Plaintiff reported her medical developments to defendant on October 3, 2003. Id. ¶ 22.
MED personnel, upon learning this new information, immediately asked plaintiff a number of questions about her diagnosis, including a question about the "[t]reatment plan detailing the type and frequency of follow-up care/monitoring needed." October 10, 2003 Email from Rebecca Forsman to Pl., Def.'s Ex. 15. Plaintiff's treating physician reported that plaintiff had been successfully treated for early stage breast cancer with an excellent prognosis. November 19, 2003 Letter from Dr. Mark O'Rourke, Def.'s Ex. 9. He specifically stated that plaintiff was "cancer-free," "is able to undertake a full schedule of work, travel, and vigorous sports," and "has no job limitations whatsoever." Id. He stated that her future treatment would consist of an annual mammogram and a semiannual breast examination by a "physician" for five years following surgery. Id. Dr. O'Rourke later clarified that plaintiff's semiannual examination could be performed by any primacy care provider, either a physician or nurse-practitioner, and did not require the service of a surgeon or oncologist. January 12, 2004 Letter from Dr. O'Rourke, Pl.'s Ex. 1. Another oncologist that treated Adams subsequently concurred in this assessment. January 18, 2005 Letter from Dr. Kimberly Blackwell, Pl.'s Ex 5.
As a consequence of plaintiff's treatment plan, MED issued a Class 5 clearance to plaintiff. See December 12, 2003 Letter from State Dep't, Def.'s Ex. 11. MED's assessment was that only 53% of all Foreign Service posts had the professional and technical support required for her follow-up care. See Mem. for Employment Review Comm., Def.'s Ex. 13. MED's calculation was based on the finding that plaintiff's semiannual physical examinations had to be provided by a surgeon or oncologist. See id.; see also Decl. of Laurence Brown, Def.'s Ex. 1, ¶ 18 (stating that the 53% figure was derived from the percentage of posts that had surgeons and/or oncologists). Plaintiff applied for a waiver of the worldwide availability requirement but that request was denied. See March 29, 2004 Letter from State Dep't, Def.'s Ex. 14. As a result of plaintiff's Class 5 medical clearance, she was not cleared for assignment abroad and was denied entry into the Foreign Service. See id.
Adams filed her initial complaint in this Court on May 10 2005, claiming that defendant violated the Rehabilitation Act by denying her employment on the basis of a disability. In response to defendant's initial motion to dismiss, plaintiff amended her complaint, adding allegations about the physical and psychological impairments resulting from her cancer treatment. Specifically, plaintiff states that she is currently physically free of cancer, but claims to suffer physically and psychologically from her breast cancer treatment, which limits her in the major life activity of sexual contact and romantic intimacy. Am. Compl. ¶ 12; see Adams Decl. ¶¶ 47-51. Defendant then filed the instant motion to dismiss or, ...