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.
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.)
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