Miller v. Clinton: Amcit FSN takes State Dept to Court for Age Discrimination

This case pop up in the DC District Court.  Below is excerpted from the court document:

Plaintiff John R. Miller is a United States citizen who was employed by the Department of State as a safety inspector at the United States Embassy in Paris, France, when he was terminated by defendant Secretary of State Hillary R. Clinton solely on the basis that he had turned 65 years of age. Plaintiff claims that this violates the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a. Defendant has moved to dismiss for failure to state a claim on grounds that the ADEA is not applicable and for lack of subject matter jurisdiction on grounds that sovereign immunity bars plaintiff’s claims for compensatory damages. Plaintiff has filed a cross-motion for summary judgment as to liability. As explained herein, the Court will grant defendant’s motion to dismiss for failure to state a claim and deny all other motions as moot.

BACKGROUND

The material facts of this case are not in dispute.1 The Department of State hires three categories of employees: Foreign Service employees, Civil Service employees, and Locally Employed Staff. (Def.’s Mot. to Dismiss at 3.) Locally Employed Staff are individuals who are hired abroad at one of the Department’s overseas embassies or consulates. (Id.) These individuals can either be hired as “members of the Service” under section 303 of the Foreign Service Act, 22 U.S.C. § 3943, or under the section 2(c) of the Basic Authorities Act, 22 U.S. C. § 2669(c), which authorizes the Secretary of State to “employ individuals or organizations, by contract, for services abroad.”

Plaintiff was hired as Locally Employed Staff under section 2(c) of the Basic Authorities Act to work at the United States Embassy in Paris, France. (Compl. ¶¶ 1, 19.) Section 2(c) states in its entirety that the Secretary of State may

employ individuals or organizations, by contract, for services abroad, and individuals employed by contract to perform such services shall not by virtue of such employment be considered to be employees of the United States Government for purposes of any law administered by the Office of Personnel Management (except that the Secretary may determine the applicability to such individuals of subsection (f) of this section and of any other law administered by the Secretary concerning the employment of such individuals abroad); and such contracts are authorized to be negotiated, the terms of the contracts to be prescribed, and the work to be performed, where necessary, without regard to such statutory provisions as relate to the negotiation, making, and performance of contracts and performance of work in the United States.

22 U.S.C. § 2669(c). Under the language authorizing the Secretary to “determine the applicability to such individuals . . . of any other law administered by the Secretary concerning the employment of such individuals abroad,” defendant applied section 408 of the Foreign Service Act, 22 U.S.C. § 3968, to plaintiff. Section 408 by its terms governs the employment of foreign nationals and certain U.S. citizens appointed as “members of the Service,” the other category of Locally Employed Staff hired by the Department of State. 2 (Def.’s Mot. to Dismiss at 5-6.) It requires defendant to establish compensation plans that are, “to the extent consistent with the public interest,” “based upon prevailing wage rates and compensation practices (including participation in local social security plans) for corresponding types of positions in the locality of employment,” with the exception that U.S. citizens are to be paid at or above the U.S. minimum wage regardless of local wage rates. 22 U.S.C. § 3968. Additionally, for U.S. citizens, defendant is to “define those allowances and benefits provided under United States law which shall be included as part of the total compensation package, notwithstanding any other provision of law” other than the U.S. minimum wage, the Social Security Act, and Title 26. Id.

For Embassy employees in Paris, France, the Local Compensation Plan (“LCP”) contained a “Retirement” clause which stated that “[a]ge 65 is the mandatory age limit for all employees under the LCP” (Def.’s Mot. to Dismiss, Ex. B, at 1), as that was the prevailing practice among employers in France. (Def.’s Mot. to Dismiss at 7.) Defendant applied section 408 to plaintiff by incorporating this LCP into paragraph 5(2) of plaintiff’s employment contract. (Id., Ex. A, at 1.)

While plaintiff was working as an Embassy safety inspector under a one-year contract extension that was to expire in October 2007, he was notified that he would instead be terminated on July 23, 2007, as he would be turning age 65 on that date. (Pl.’s Opp’n to Def.’s Mot. to Dismiss [“Pl.’s Opp’n”] at 5, 7.) Plaintiff sought, but was denied, a one-year extension of his employment. (Compl. ¶ 1.) On July 30, 2007, he filed a complaint of discrimination with the Department of State, alleging that his termination based on age violated the federal employees provision of the ADEA, 29 U.S.C. § 633a(a), which states that “[a]ll personnel actions affecting employees . . . who are at least 40 years of age (except personnel actions with regard to aliens employed outside the limits of the United States) . . . in executive agencies . . . shall be made free from any discrimination based on age.” (Compl. ¶ 21, Ex. A, at 1.) On January 7, 2008, while his discrimination claim was pending before the Department of State, plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). (Compl. ¶¶ 21-22.) The EEOC dismissed plaintiff’s complaint for failure to state a claim, and the Department of State implemented that decision. (Compl. ¶ 22, Ex. B.)

Plaintiff then filed the instant lawsuit seeking, inter alia, compensatory damages, reinstatement, back pay, attorneys’ fees, and declaratory and/or injunctive relief for defendant’s alleged violation of the ADEA. (Compl. at 7-8.) Defendant has moved to dismiss for failure to state a claim on the ground that the ADEA does not apply to plaintiff. (Def.’s Mot. to Dismiss at 1-2.) Defendant also asserts that sovereign immunity bars any claim for compensatory damages. (Id. at 2.) Plaintiff has cross-moved for summary judgment as to liability. (Pl.’s Cross-Mot. for Summ. J. at 3-4.)

Active links added above. Read the whole thing here.


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You gotta love HRC’s sense of humor

Hamish and Andy at the 2009 ARIA Awards. Eithe...Image via WikipediaDuring her visit to Australia, the Secretary of State had a fun chat with Hamish and Andy, the popular radio comedy dudes down under who run the Hamish and Andy Show

Listen here or download Hamish & Andy – Best Of Monday 8th November (Download this clip) The transcript excerpted below is funny enough but you gotta listen to the clip to hear HRC’s sparkling laughter.

QUESTION: It’s a best before rather than a use by, so it may be it’s a rough guide. (Laughter.) Well, thank you so much for joining us first of all, Secretary Clinton. And you’re traveling around doing these conversations with predominantly young people. Probably a serious question out of the way first: Is the impetus for these trips that you feel this sort of a mismatch or imbalance, perhaps, between the way American is perceived and as you as the Secretary of State are the conduit to the rest of the world from America with how America’s perceived and what America’s message is?
SECRETARY CLINTON: I think that’s a fair question and I would say yes. I think that for young people today, this is such a busy, almost over stimulated, environment that you all come to maturity in and I think the United States has a deep understanding among people who are older because of the military alliances, the wars we’ve fought against totalitarianism in the 20th century and the like. But for young people, there’s a lot of other things going on and —
QUESTION: The Kardashians give us a lot of our (inaudible) import.
SECRETARY CLINTON: The Kardashians, exactly. If you look at American TV as much of the rest of the world does, you would think we all went around wrestling and wearing bikinis. I mean, that’s what you would think we spend our entire day —
[…]
QUESTION: It all requires excellent patience, great negotiation skills. Your husband also possesses those qualities. When you two can’t agree on what to get for takeaway dinner, who wins out in that type of negotiation?
SECRETARY CLINTON: We practice different models of negotiation around important issues like that.
QUESTION: Yeah.
SECRETARY CLINTON: Because if I were to say to him, as I have on many occasions, “What shall we have for dinner tonight?” If he says to me, “Oh, I don’t care; you choose,” I know that’s a really bad answer, because then I’m stuck with the responsibility.
QUESTION: Yeah.
SECRETARY CLINTON: So I will come back and I’ll say, “All right. Well, so how do you feel about Chinese — “
QUESTION: Oh, good.
SECRETARY CLINTON: “ — or Mexican or Italian?” And if he says a second time, “I really, really don’t care,” then I will go choose. Now, contrarily, if he says to me, “What do you want for dinner tonight,” I will say, “What do you want?” Then he’ll go, “Well, I was thinking of maybe picking up some Thai.” And if I’m in a good humor, I’ll say, “That’s fine.” But if I am feeling not enthusiastic about Thai, I’ll say, “Well, maybe we should consider something else.” And he’ll say, “Well, then you choose.” (Laughter.)
QUESTION: Do you ever eat before midnight? (Laughter.)
SECRETARY CLINTON: We are very late eaters. Yes, we do. I mean, this could go on — this goes on for some time.
QUESTION: You want to make sure people don’t know that he had half of the conversation, because you’ve got former President talking to the current Secretary of State, how do you feel about Chinese — (laughter) — I don’t know. I don’t really like Chinese. That could be catastrophic.
SECRETARY CLINTON: That’s why we have our rooms swept every day. (Laughter.)
[…]
QUESTION: Well, I mean, in your role now as Secretary of State, you have such high-level meetings and also as First Lady and U.S. senator, have you ever said the phrase, “You’ve just made a very powerful enemy?” (Laughter.)
SECRETARY CLINTON: No, but I’ve thought it. (Laughter.)
QUESTION: What’s a nicer way to say it. Do you just have to go — (laughter).
SECRETARY CLINTON: Well, I’ve learned diplo-speak. I’ve become very —
QUESTION: Because I suppose that’s a pretty big threat.
SECRETARY CLINTON: Yes, well, but you can say — when someone says —
QUESTION: If I just — say I just crossed the United States of America —
SECRETARY CLINTON: Yes, right.
QUESTION: — horribly, how would you sort of convey that message to me?
SECRETARY CLINTON: Well, I live by the old adage, “don’t get mad; get even”. So you don’t want to jump any conclusions. You don’t want to be saying, “We have a lot of military (inaudible).” No, you don’t do any of that. You just — what you try to do is to convince people that what you think is good for the country that you’re visiting and good for the world they should as well.
[…]
QUESTION: I am just in a nutshell, there are some hot spots, there are some cold spots, things are okay.
SECRETARY CLINTON: That’s right. See, I’ve got this Goldilocks theory of foreign relations. It’s not too hot; it’s not too cold. You’ve got to get it just right.
[…]
QUESTION: I ran into my neighbor yesterday as I was taking party supplies into my house. And he said, “Are you having a barbeque?” I said, “Yes.” And he’s currently not invited, but now he knows that a barbeque is on. We have, on a microscale, we have diplomatic tensions.
SECRETARY CLINTON: Yeah, you do. You have a potential hot spot next door.
QUESTION: We have a hostile neighbor. And we have a shared wall, too.
SECRETARY CLINTON: Well, the path of least resistance is to invite him.
QUESTION: He’s not a good mix. He’s not a good match.
SECRETARY CLINTON: Not a good match.
QUESTION: We sort of — I don’t want to call him a rogue dissident, but —
SECRETARY CLINTON: How about this — yeah, well, why don’t you take him over some barbeque?
QUESTION: And that’s why you are the Secretary of State of the United States of America. Thank you for joining.

Read full transcript of the Secretary’s talk with Hamish and Andy | Mon, 08 Nov 2010 13:06:13 -0600


US Mission Pakistan: Our diplomats in action … do they even sleep?

Below is a photo of her last visit to Balochistan, in the company of our Consul General in Karachi William Martin.  Poor guys looked worn and stressed out but went on to talk to the press, anyway.  Photo below did not come from the embassy press shop but lifted from The Baloch Hal.

The new ambassador to Pakistan, Ambassador Munter has been quite visible since his recent arrival in Islamabad with his wife, Marilyn Wyatt. It was noted elsewhere in local Pakistani news, that this is the first time that at a US envoy has brought his wife to post in ten years.  Three days after arrival in country, Ambassador Munter and his wife  participated in flood relief efforts conducted by Pakistan and U.S. military and helped distribute flood relief supplies at a World Food Program distribution point at Hassan Khan Jamali, Sindh Province, Pakistan. This is the ambassador’s first trip to flood-affected areas of Sindh since arriving in Pakistan Oct. 27.  We have seen several photos of the new ambassador posted both at the embassy website and its Facebook page, most recently visiting Lahore; we can’t tell as yet if this is the new normal from the embassy’s press shop.  But take a look …

Ambassador Cameron Munter offloads a 40 kilogram bag of flood relief supplies

from a U.S. military helicopter in Hassan Khan Jamali,

Jacobabad district, Sindh province, Pakistan, October 30.

Photo from US Embassy Islamabad

The ambassador is not the first diplomat we’ve seen lugging 40 kg bags, of course.  Ambassador Munter’s CG in Karachi, who hit the ground running when the superflood unfolded this past summer has been known to do some cargo offloading himself.  Take a look ….

Photo from US Consulate General Karachi/Facebook

 

 

 

 

 


Scare the kids: You will die as a midlevel Washington bureaucrat …

The 4 min 4 sec video below So You Want To Be A Diplomat was created by Georgetown’s School of Foreign Service students, Morgan McDaniel, Amanda Lanzillo, and Mike Madoff and posted in xtranormal. H/T to Two Crabs. We got our three laughs for the day!

What they forgot was to include the view from the Brits like — “unthinkable” for a diplomat to “produce babies.” How about “the clever woman would not be liked and the attractive woman would not be taken seriously.” Also, “the trouble with you women is that you will go and get married.”

Read Alex Barker’s piece, Britain’s first female diplomats in FT magazine. It is quite a romp down diplomatic history.