On the retaliation claim:
[C]olton has failed to comply with her statutory obligation to notify the EEOC within 180 days after the alleged unlawful practice-i.e., retaliation-occurred. As a result, her retaliation claim in Count III of the Complaint must be dismissed in its entirety.
On the non-promotion:
The failure to promote was included as an additional act of discrimination and retaliation in her First Amended Complaint filed on October 22, 2009. See id. As discussed above, the plain language of § 633a(d) requires plaintiff to have filed notice of her intent to sue within 180 days "after" the allegedly "unlawful practice" occurred. Since it was impossible for the January and April 2009 notices to include any allegations of the purported failure to promote in October 2009, Colton would have had to file another amended notice to comply with the statutory prerequisites to suit. See Morgan, 536 U.S. at 114 (finding failure to promote to be a "discrete act"). As she has failed to do so, to the extent that plaintiffs discrimination claim in Count I is based on the agency's decision not to promote her, it must also be dismissed.
More below:
In Count I, plaintiff claims that the State Department discriminated against her on the basis of age by: (1) denying her the two-year position in Algiers; (2) failing to assign her to a position "equivalent" to the Algiers position; (3) denying her requests for an extension of service under 22 U.S.C. § 4052(b)(2); and (4) failing to promote her in October 2009. See CompI. ~ 91. With the exception of the failure to promote allegation,
which is not properly before this Court as explained above, plaintiff is, in effect, asserting that the State Department discriminated against her by complying with and enforcing the statutorily mandated age of65. This claim must fail as a matter oflaw, however, because our Circuit has already held that the mandatory retirement provision Colton is challenging here is a valid exception to the ADEA. See Strawberry v. Albright, 111 F.3d
943,947 (D.C. Cir. 1997).
[...]
The Circuit Court found that Congress's reenactment of the mandatory retirement age in the Foreign Service Act of 1980-which raised the mandatory retirement age from 60 to 65-after the ADEA was made applicable to federal employees reflected Congressional judgment that "the ADEA's general provision on age discrimination does not prohibit enforcement of the mandatory retirement provisions." Id.; see also Kimel v. Florida Bd. of Regents, 528 U.S. 62, 68-69 (2000) ("Under the current ADEA, mandatory age limits for law enforcement officers and firefighters-at federal, state, and local levels-are exempted from the statute's coverage"); Stewart v. Smith, 673 F.2d 485,492 (D.C. Cir. 1982) (finding maximum age rule for federal law enforcement officers to be an exception to the ADEA).
[...]
In light of this controlling authority, plaintiff's challenge to the enforcement of the mandatory retirement provision must be dismissed. Her allegations of discrimination based upon the failure to assign her to the Algiers position simply reflect her disagreement with the defendant's implementation and enforcement of the mandatory retirement provision. Plaintiff admits that the Algiers position or, for that matter, any other two-year tour of duty beginning in Mayor June 2009 would have required her to serve nine or ten months past her mandatory retirement age. See Compl. ~ 51. Colton also admits that she did not view any of the available one-year assignments as "equivalent." See id. ~~ 64, 72. Thus, plaintiffs ineligibility for the Algiers assignment or any other assignment she thought "equivalent" resulted from enforcement of the mandatory retirement provision of the Foreign Service Act and, therefore, is not actionable under the ADEA.
[...]
What Colton fails to acknowledge is that she was denied the Algiers position because a/the mandatory retirement provision, which our Circuit has already held to be an exception to the ADEA. She further attempts to distinguish Strawberry by arguing that, unlike that plaintiff, who challenged his mandatory retirement after being forced to retire, she is complaining of alleged acts before she turned 65. As the defendant points out, this argument, if accepted, would subject the defendant to suit for all actions taken prior to the actual date that an employee must retire under the Foreign Service Act, even when the challenged acts are taken to implement or enforce the requirements of the mandatory retirement provision. Such a result is, of course, nonsensical. Simply put, it is irrelevant whether the challenged acts occurred before or after plaintiff s mandatory retirement, and it is of no moment when the suit is brought. The only pertinent question is whether a challenged act was undertaken to implement or enforce the provision. If so, then the ADEA' s general prohibition on age discrimination does not apply. See Strawberry, 111 F.3d at 947.
[...]
Similarly, Colton's allegation that the Secretary of State's refusal to grant her an extension pursuant to § 4052
( d) was a discriminatory act is unavailing. Although the mandatory retirement provision grants the Secretary the discretion to retain a person for up to five years past the mandatory retirement age if in the "public interest," there is no requirement that the Secretary do so.
[...]
Colton is woefully misguided to imply that this Court can and should disregard Supreme Court precedent if it appears outdated. The Supreme Court alone can overrule its own precedents, and the fact that a plaintiff articulates a new theory as to why a different result should be reached is insufficient to revisit a settled issue.
The Memorandum of Opinion is here.
We are still trying to reach Dr. Colton's lawyers for a statement.
Sorry folks, there won't be any show for now. Please mind the old people sign (political appointees, civil servants and contractors excepted, of course).
Later ....
This made me think of John Scalzi -- probably because in his Colonial Defense Forces, you have to be 75 to sign up for the Army; his Colonial Union want people who who carry the knowledge and skills of decades of living to fight their wars.
But not yet, not here, not now.
1 day ago
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