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Mandatory Age Retirement Goes to Court, Again
On September 18 Sutherland Asbill & Brennan LLP, together with the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, filed a complaint in the U.S. District Court for the District of Columbia against Hillary Rodham Clinton in her capacity as Secretary of State. The case was filed on behalf of Dr. Elizabeth O. Colton, a 64-year-old Foreign Service officer whom the Department of State has “subjected to discrimination by denying her the opportunity to serve at certain posts simply because of her age.” Dr. Colton is represented by Sutherland Litigation Partners Thomas R. Bundy III and Lewis S. Wiener and Litigation Associate Christopher W. Hammond of the firm’s Washington, D.C., office, in conjunction with Susan Huhta of the Washington Lawyers’ Committee.
According to Mr. Bundy, “This case is one of first impression where the Department of State is preventing Foreign Service officers like Dr. Colton from taking certain posts years before they reach the 65-year-old mandatory retirement age for Foreign Service members under the Foreign Service Act.” Mr. Bundy added, “We believe the State Department should stop this unlawful, discriminatory employment practice. The mandatory retirement age itself is unconstitutional, lacking any rational basis, and is based on outdated stereotypes and misinformation.”
“We are confident that the court will finally agree that if presidents, judges, Congress members, civil servants, ambassadors and other political appointees in the State Department are capable of serving our great country well past 65 years of age, then so can your average citizen who is a Foreign Service officer,” said Mr. Bundy. “Dr. Colton’s career is distinguished, and there is no reason a woman of her experience, energy and enthusiasm should be forced to retire when she wants to continue to serve.”
The law firm’s press release states that before joining the Foreign Service, Dr. Colton was the chair of the mass communications department and professor of politics and media at Shenandoah University; served as Jesse Jackson’s press secretary during his 1988 presidential campaign; was an international journalist for Newsweek, ABC News, NBC News, Asiaweek, and Far Eastern Economic Review; and served as a diplomatic correspondent for National Public Radio in D.C. She also worked at the United Nations, in the U.S. Senate as a media adviser to the late Sen. Terry Sanford, and served as a U.S. Peace Corps Volunteer in Africa.
This is of course, not the first time that mandatory age retirement in the Foreign Service was taken to court. In Vance v. Bradley , 440 U.S. 93 (1979), the question put forth before the Supreme Court was whether Section 632 of the Foreign Service Act of 1946 violated the Equal Protection component of the Due Process clause of the Fifth Amendment. The Supremes reversed the lower court’s decision and sided with the government in an 8-1 decision. AFSA, the bargaining agent for the Foreign Service also filed an amicus curiae supporting the government’s position. That was was 30 years ago. About time the mandatory age retirement (MAR) is revisited.
Dr. Colton’s case alleges age discrimination, constitutional and civil rights violation, and retaliation against plaintiff by the State Department. To say that her career was fast-tracked in the State Department would be an understatement – a more appropriate term might be “bullet-trained.” A quick summary of her career below, excerpted from the complaint:
May 2000 – Entered the FS as a PD-coned, FS-05 entry-level Foreign Service Officer
October 2000 – Began a 2-year assignment in Riyadh, Saudi Arabia on a consular/political rotational assignment
November 2001 – Promoted to FS-04
January 2003 – Received Superior Honor Award for political reporting and public outreach
Summer 2003 – Promoted to FS-03
September 2003 – Began an FS-02 stretch assignment as Public Affairs Officer in Algiers, Algeria (one year danger/critical threat assignment)
August 2004 – Began an FS-02 stretch assignment as Public Affairs Officer in Khartoum, Sudan (one year danger/critical threat post)
Fall 2005 – Began an FS-01 two-stretch assignment as Information Officer in Baghdad, Iraq (one year war zone assignment)
Summer 2006 – Superior Honor Award for sustained performance
October 2006 – Promoted to FS-02
November 2006 – Began an FS-01 stretch assignment as Information Officer in Islamabad, Pakistan (one year danger/hardship position)
Summer 2007 – Agreed to stay on another year as Information Officer in Islamabad, Pakistan per personal request of the Ambassador.
June 2008 – Began an FS-01 stretch assignment as Special Assistant to the Bureau of Oceans, Environment and Science, Washington DC.
Received Superior Honor Award (not dated)
November 3, 2008 – Received a “handshake” to be Chief of Pol/Econ Section in Algiers, Algeria
November 20, 2008 – Informed verbally by Deputy DG that “handshake” had been withdrawn; DDG reportedly stated that MAR waiver would not be given.
November 21, 2008 – Received email from NEA boss officially withdrawing “handshake.”
December 12, 2008 – Received Unlimited Medical Clearance for worldwide availability
Heh! Show me a 30-something with the experience and a career trajectory like hers and I’ll buy you coffee I can’t afford.
What really strikes me as I read the Colton complaint is that this Foreign Service officer, except for a one-year assignment in Foggy Bottom has had assignments in nothing but critical and dangerous posts overseas. All but her entry position had been on “stretch” assignments, that is, she was working beyond her rank. She has received Superior Honor Awards for her work in Saudi Arabia, Baghdad, and the OES Bureau. She has also received Meritorious Honor Awards for her work in Algeria, Sudan and Pakistan. And when she wanted to serve out her full retirement tour, she did not ask to go to Paris or Rome or London, she only wanted to go to Algiers!
Algiers? A Foreign Service assignment that has been sitting on the list of the Department’s top most dangerous posts forever!
Holy mother of goat and all her crazy nephews!
It seems to me that if the State Department and the Foreign Service had allowed some flexibility here, this may not even be in court. The Director General of the Foreign Service is given authority to extend the tenure of any FSO subject to mandatory retirement. Given the gap in mid-level staffing in the Service, it can be argued that extending her tour for eight months beyond her 65th birthday would have been in the public interest. But even beyond the public interest, just allowing our diplomats to retire at the completion of their last tour, wherein they turn 65, would have been not only rational but also most human. It would have also allowed for an easier transition with people leaving at the conclusion of their assignments instead of chucking them out the airlock on the dot when they turn 65.
In one case I’ve heard, a unnamed FSO subjected to MAR reportedly related to his/her “career development officer” his/her need for a three-month extension that would have allowed the FSO’s kids to conclude their school term overseas. The FSO was told not to bother requesting a formal extension because the Director General almost never grants a waiver. A great PR move for an agency that touts its “family-friendliness” doesn’t it?
Understandably, when reached at the US Consulate in Karachi, Pakistan Dr. Colton declined to discuss details of this litigation. Karachi, of course, where she is currently posted is another danger/hardship assignment. It must be said that this officer went where the Service needed her. She worked in some of the toughest posts in the Foreign Service since she joined the Service. She did not avoid service in dangerous posts, she simply went and did the job. The leadership at the State Department and Congress have been talking about developing an expeditionary corps, diplomats willing to serve at unaccompanied posts and US missions in war zones and conflict zones.
Well — here is one. Take a good look. She’s female, older, wiser, she knows her craft and she won’t take “no” for an answer. And we’re telling her she can’t go on a full tour at a danger post because she’s too old? Now she had to go to court. Please – help me scratch my brain.