13 Going on 14 — GFM: https://gofund.me/32671a27
Via EEOC Appeal No. 2020000116 (PDF)
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision dated July 31, 2019, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
At the time of events giving rise to this complaint, Complainant worked as an Information Systems Security Officer, FS-03, at the Agency’s facility in Brussels, Belgium.
On July 1, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to age discrimination when he was not allowed to bid for assignments in the summer 2020 job cycle, when he will reach the Agency’s mandatory retirement age. Complainant also stated, in his formal complaint, that he was being involuntarily retired in January 2020, solely on account of his age.
The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, stating that the ADEA does not preclude mandatory retirement provisions, including the one set forth in the Foreign Service Act which covered Complainant’s position. The instant appeal followed.
We concur that the instant complaint, which in essence challenges the Agency’s mandatory retirement at age 65 as a violation of the ADEA, fails to state a claim. Since Complainant is challenging the validity of the mandatory retirement age, which was authorized by Congress as a statutory exception to the Age Discrimination in Employment Act, the Commission finds that his complaint has been appropriately dismissed for failure to state a claim. See Brumbaugh v. Department of the Army, EEOC Appeal No. 01A05531 (Mar. 29, 2001) (the mandatory retirement provisions of the Foreign Service Act must be given “full force and effect” and the ADEA cannot be read to prohibit their implementation, citing to Strawberry v. Department of State, No. 96-5221 (D.C. Cir. 1997. In commenting on Strawberry, the Commission observed that the court looked at both statutes and concluded that Congress knew what it was doing in keeping the mandatory retirement provisions in place even when it otherwise outlawed mandatory retirement for most employers under the ADEA).
Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.