Tuesday, March 30, 2010

Colton v. Clinton: Defendant has “memorialized its discriminatory practices" in its SOPs

On December 22, 2009 The Blog of Legal Times reported an update on the Colton v. Clinton case (State Department Seeks to Dismiss Age Discrimination Case). Excerpt below:  

The State Department filed its motion to dismiss a case challenging the U.S. Foreign Service's mandatory retirement policy, arguing the age cutoff was a valid piece of Congressional decision making. Elizabeth Colton, a 64-year-old Foreign Services officer, sued the State Department in September alleging she had been denied an overseas assignment because of her age. […] The government shot back yesterday, arguing that Colton was trying to upend long-settled law. The U.S. Court of Appeals for the D.C. Circuit has already found that the retirement policy at issue, which is contained in the Foreign Services Act, was exempt from the ADEA, the government said. It added that the Supreme Court has also ruled that the age cutoff does not violate equal protection.

BLT’s prior coverage of the case, Colton v. Clinton is here. Our latest coverage on this is in Who wants well-aged diplomats well refined?

Last month, Dr. Colton and her lawyers fired back, with an opposition to the State Department’s Motion to Dismiss and moved for discovery. The filing includes the following:

The State Department believes it can discriminate against Foreign Service Officers on the basis of their age without fear of recourse. Defendant’s relies on the Foreign Service Act of 1980 (the “1980 Act”), which requires individuals who participate in the Foreign Service Retirement and Disability System to retire by the last day of the month in which they turn 65. Defendant views this mandatory retirement provision as a right to subject older Foreign Service Officers, like Plaintiff, to disparate treatment based on their age years before their retirement is required by law.
Defendant argues that Plaintiff’s ADEA claims are barred on procedural grounds because she allegedly filed out-of-time and allegedly failed to exhaust her administrative remedies. This is not true. Defendant’s attempt to impose a 90-day statute of limitations defense to Plaintiff’s ADEA claims has been squarely rejected by Supreme Court precedent. Plaintiff  filed her Complaint within two years of the first discriminatory act and her Complaint is therefore timely. Likewise, numerous courts have rejected Defendant’s exhaustion arguments, which in this case is based on the misplaced notion that Plaintiff must repeatedly file notices of intent to sue each time she is subjected to a retaliatory act and each notice must include the word “retaliation” for it to be valid.

Defendant also argues that Plaintiff failed to state a claim upon which relief can be granted because (1) Strawberry v. Albright, 111 F.3d 943 (D.C. Cir. 1997), a limited D.C. Circuit Court decision, held that the 1980 Act’s mandatory retirement provision is an exception to the ADEA; and (2) Vance v. Bradley, 440 U.S. 93 (1979), a 30 year-old Supreme Court decision, held that the mandatory retirement provision of the Foreign Service Act of 1946 (“1946 Act”) is constitutional based on a limited review of different  congressional findings more than 70 years old. Neither of these cases excuse the numerous instances of overt discrimination, retaliation and constitutional inequalities identified in Plaintiff’s Amended Complaint.

Defendant refused to modify the two-year tour of duty for the Algiers assignment, notwithstanding Defendant modifies tours of duty for assignments for a variety of reasons other than age. This disparate treatment — refusing to modify Plaintiff’s tour and denying her job opportunities because she would turn 65 years old before she completed an assignment — is a discriminatory employment practice that violates the ADEA. It has nothing to do with enforcing mandatory retirement, but has everything to do with discriminatory employment choices that Defendant makes against older employees in favor of younger ones.
The documents the State Department provided with its motion make it clear that Defendant has memorialized its discriminatory practices in its standard operating procedures. Defendant’s bidding instructions state, for example, that attempting to secure a position that would extend a Foreign Service Officer’s career past the mandatory retirement age would “subject [the officer] to negative consequences.” (Id. at Ex. B, p. 36 ¶ 3.) This policy is strange considering that Foreign Service Officers are statutorily entitled to seek an exception from the mandatory retirement provision and such requests can only be made after an officer bids on a position. (Id. at Ex. B, DeLisi Declaration.) Defendant admits that it “took steps to ensure that plaintiff was not assigned to a position for which she was ineligible [because of her age].” (Id. at 28.) Plaintiff believes that the “negative consequences” and admitted “steps of  assurance” are the impetus behind the retaliation that she endured.

Like its attempt to extend the Strawberry holding, Defendant’s argument that it is entitled to summary judgment by extending Vance is unavailing. This country is founded on a system of checks and balances that provide the judicial branch with authority to determine the constitutionality of the laws, including the 1980 Act. The system would fail if the checks and balances on one statute (e.g. the 1980 Act) were simply based on decisions involving a different set of facts challenging a different statute (e.g. the 1946 Act) with different congressional findings that occurred more than 70 years ago.

Following the State Department’s logic would mean that cases like Brown v. Board of 
Education could have never eradicated the discrimination of its time by overturning Supreme Court decisions like Plessy v. Ferguson, which already addressed the issue of separate but equal treatment. Defendant’s logic makes no sense. Plaintiff is entitled to challenge the constitutionality of the 1980 Act, raising colorable arguments that courts have never decided and discovering evidence in support thereof.
[T]he Bradley court stated that congressional conviction illustrates that “the country should be at great pains to assure the high quality of those occupying positions critical to the conduct of our foreign relations in the post-war world.” Bradley, 440 U.S. at 101 (citations omitted). Yet, many of the Ambassadors, Special Envoys and even Secretaries of State that we send overseas to conduct our foreign relations are frequently well over 65 years of age. Hypocrisy is never rational.
Defendant’s own SOPs contemplate that Foreign Service Officers will accept assignments even if they cannot complete a 24-month tour before mandatory retirement. (Id. At Attachment 3, p. 14 (discussing 24-month tours and stating that “prompt separation [will occur] upon reaching age 65 no matter the time remaining in your tour”).) Thus, Dr. Colton was qualified but Defendant discriminated against her on the basis of age.
Defendant, of course, states that Plaintiff’s belief that her career was curtailed is “a puzzling claim, given that she remains employed as the Public Affairs Officer in Karachi, Pakistan.” (Motion at 20.) In other words, Defendant believes that Plaintiff should be happy that she has a job even if that job is a lesser quality as is the case here.
Plaintiff will prove through discovery that Defendant has a policy of allowing officers over the age of 65 to serve in Iraq and Afghanistan, two of the most dangerous countries in the world. Plaintiff will also prove through discovery that Defendant not only re-hires retired Foreign Service Officers under the WAE program, but also has specific policies for hiring government contractors and other federal employees to perform precisely the same or substantially similar job as officers like Dr. Colton. Denying opportunities to Foreign Service Officers like Dr. Colton because of their age, while hiring others to perform the same tasks in the same areas under specific policies, is irrational.


I added some active links above. These guys are good ("Hypocrisy is never rational," "memorializing ... in the SOPs?" ). Can you blame us if we want to hear them argue and slug this out in open court?

Besides -- we really do want to know how many FSOs in the regular service and the SFS Senior Foreign Service were subjected to MAR but got waivers from "prompt" removal when they hit the 65 mark.  You'd think something like that would be easily accessible and transparent, State being one of those "best places to work" (admittedly not in AARP's list); but apparently you can't get that info from the state.gov website or pry it from anywhere else.  Would be nice to have that information pried out of the bureaucracy and see how that onion plays out in court. 

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