US Mission Germany: LE Staff Age Discrimination Cases Fail at the EEOC Over 45-Day Time Limit

Below are two three recent cases at the EEOC where former LE staff at US Mission Germany alleged unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA). Both complainants were already retired when the complaints were filed at the Commission. In both cases, the EEOC affirmed the State Department’s decision. In the first case, the complainant argues that the Commission should waive the 45-day time limit.  In the second case, the complainant’s case failed for failure to initiate EEO counseling within the 45-day time limit. In the third case, the complainant filed the case 15 years later, “well beyond the 45-day limitation period.”
EEOC Appeal No. 2021001196:
Complainant, a U.S. citizen, was hired by the Agency effective October 17, 2005, as a Secretary, Pay Plan 01, Grade 06 (PP-01-06). She was competitively promoted to Administrative Assistant Move Coordinator), PP-01-09 effective April 1, 2007, was reassigned to Administrative Assistant, PP-01-08 effective April 26, 2009, and retired on December 31, 2018. All these jobs were with the American Embassy Berlin in Berlin Germany, part of U.S. Mission Germany. Complainant worked as Locally Employed (LE) Staff, meaning staff who were legal permanent residents of Germany, including U.S. and non-U.S. citizens.

On August 24, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on age because throughout her employment she was ineligible, due to being hired after her 45th birthday, to participate in the Mission Germany Retirement Benefit Plan/Defined Benefit Plan (DBP) for LE Staff.
[…]
The Agency dismissed the EEO complaint because Complainant did not initiate EEO counseling within the 45-day time limit of when she reasonably should have suspected discrimination. It found as follows. Complainant should have reasonably suspected discrimination upon her retirement (December 31, 2018) when she learned that she did not qualify for retirement benefits, and again by February 26, 2020, when post leadership issued cable 20 STATE 21066 denying Complainant and similarly situated LE retirees retirement benefits. The Agency found that Complainant had constructive notice of the 45-day time limit because of numerous posted notices on the Agency’s internet site, its intranet site dedicated to employment information, and on Embassy Berlin’s intranet site. The Agency also dismissed the complaint for failure to state a claim for various reasons.

The instant appeal followed. On appeal, Complainant argues that when she was hired American Embassy Berlin was in the process of building a new embassy. She writes she was not located in one of official Embassy buildings and because her location did not have access to the Agency and Mission Germany intranet websites she did not have the means to learn of the 45 day time limit. Complainant writes that the above occurred when she worked for Overseas Building Operations (OBO) of the Embassy.

[…]
The record reflects Complainant stopped working in OBO when she was promoted on April 1, 2007, and she does not argue she was unaware of the 45-day time limit thereafter. Rather, Complainant argues that the Commission should waive the 45-day time limit because the Agency deliberately hindered those injured from becoming aware of the age discrimination and because of the gravity of its offense. Complainant argues that she only formed a reasonable suspicion of age discrimination after extensive consultation with experts and similarly situated LE Staff and retirees, and hence her EEO contact was timely. She also argues that her complaint states a claim.
[…]
Complainant argues that after she retired on December 31, 2018, she helped establish a Pension Sub-Committee to meet with management to discuss DBP age discrimination (meaning allow those excluded from DBP due to their age to retroactively join DBP), but on February 26, 2019, via cable, management declined to grandfather them into DBP. Based on this information, we  conclude that Complainant had a reasonable suspicion of discrimination years before she initiated EEO counseling on July 21, 2020. Accordingly, the FAD is AFFIRMED
EEOC Appeal No. 2021001243
Complainant, a U.S. citizen, was hired by the Agency starting on February 24, 1997, to a limited term position as a Commercial Representative at the American Consulate General, Office of the Foreign Commercial Service, in Dusseldorf, Germany. The term appointment allowed for the option of subsequent annual extensions. It appears the Agency annually renewed Complainant’s term employment until he retired on October 31, 2017. In July 2009, Complainant was reassigned from Dusseldorf to Munich, Germany, where he remained until his retirement. Throughout his career with the Agency’s U.S. Mission Germany, Complainant worked as Locally Employed (LE) Staff, meaning staff who were legal permanent residents of Germany.
On July 23, 2020, Complainant initiated EEO counseling and later filed a formal equal employment opportunity (EEO) complaint dated August 26, 2020, alleging the Agency discriminated against him based on his age because he was ineligible, due to being hired after his 45th birthday, to participate in Part A of the Mission Germany Retirement Benefit Plan/Defined Benefit Plan (DBP) for LE Staff.
[..]
The Agency dismissed Complainant’s EEO complaint because he did not initiate EEO counseling within the 45-day time limit of when he reasonably should have suspected discrimination. The Agency found that, at the latest, Complainant should have reasonably
suspected discrimination when he retired on October 31, 2017, because he did not qualify for retirement benefits at that point. It further found that assuming Complainant did not reasonably suspect discrimination upon his retirement, he should have reasonably suspected discrimination when, on February 26, 2020, via cable (identified as 20 STATE 21066), Agency leadership denied the request by similarly situated former LE Staff, also hired after age 45, for retirement  benefits. The Agency found that Complainant knew or had constructive notice of the 45-day time limit because of posted notices on the Agency’s intranet and internet sites dedicated to employment information. The complaint file contains screen shots of the referenced notices.
[…]

The doctrine of laches is an equitable remedy under which an individual’s failure to pursue diligently his course of action could bar his claim. We find laches applies here. Complainant delayed almost three years after he retired to initiate EEO counseling. While the record may not show exactly when Complainant was notified of the time limit to initiate EEO counseling, we conclude that the record sufficiently supports a finding that he did not act with due diligence in starting his EEO case, justifying the application of the doctrine of laches. Accordingly, the FAD dismissing the complaint for untimely EEO counseling is AFFIRMED.
EEOC Appeal No. 2021001278 :
During the relevant period, Complainant worked as a Computer Management Specialist at the Agency’s US Embassy Berlin in Berlin, Germany.

On July 21, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.

On August 27, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on age when he was informed that he was not eligible for benefits under Mission Germany’s Retirement Benefit Plan, beginning the date of his employment as a locally employed staff member on October 17, 2015.


In its October 13, 2020 final decision, the Agency dismissed the formal complaint claim for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2).
Specifically, the Agency determined that Complainant initiated EEO Counselor contact on July 21, 2020, which the Agency found was more than forty-five days after the alleged discriminatory event occurred. In addition, the Agency argued that Complainant knew or should have known that retirement benefits were not part of his employment benefit package.
In support of its assertions, the Agency included a copy of Complainant’s offer letter and employment history that he signed on September 9, 2005, acknowledging receipt of the Foreign Service National (FSN) Handbook that explains retirement benefit eligibility.
[…]
The Agency noted further that the instant complaint raises issues of retirement benefits for Locally Employed Staff (LE) which arise under the Foreign Service Act (FSA). Complainant signed the LCP when he began his employment with Mission Germany and properly grieved the LCP provisions. The Agency found that, as a result, the Commission lacks jurisdiction to decide the allegations Complainant raised in his complaint.

Finally, the Agency found that the subject claim is a collateral attack on the Agency grievance proceeding. The Agency stated that Complainant should have raised his allegations through the Agency grievance proceeding, and not through the EEO complaint process.
[..]

Here, the Agency properly dismissed the formal complaint on the grounds of untimely EEO counselor contact. Complainant was notified in his employment contract in 2005 that he was not eligible for retirement benefits. However, Complainant did not initiate contact with an EEO

Counselor until July 21, 2020, 15 years later and well beyond the 45-day limitation period. We note that in his complaint, Complainant states he did not reasonably suspect discrimination until February 26, 2020, when Agency leadership issued a decision entitled 20 STATE 21066 denying retirement benefits to Complainant and other similarly situated retirees. Even counting from that date, Complainant’s July 21, 2020 initial EEO counselor contact was untimely made.
[..]
The Agency’s final decision dismissing the formal complaint for the reasons stated herein is AFFIRMED.
Not sure what “Agency grievance proceeding” the State Department is referencing here. Is there a grievance system for LE staff overseas, besides getting a hearing from the COM? The Foreign Service Grievance System (FSGB) applies to Foreign Service employees only.
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Biden Taps Julissa Reynoso Pantaleon as Ambassador to Spain and Andorra

 

President Biden recently announced his intent to nominate Julissa Reynoso to be the next U.S. Ambassador to Spain and Andorra. The WH released the following brief bio:

Julissa Reynoso Pantaleon, Nominee for Ambassador Extraordinary and Plenipotentiary to the Kingdom of Spain and to the Principality of Andorra

Julissa Reynoso is an Assistant to the President and Chief of Staff to Dr. Jill Biden, and the Co-Chair of the Gender Policy Council at the White House.  A former U.S. Ambassador to Uruguay, Reynoso also served as Deputy Assistant Secretary of State in the Bureau of Western Hemisphere Affairs.  She is a former partner at the international law firm of Winston & Strawn LLP, in New York, and served on the faculty of Columbia University School of Law and School of International and Public Affairs.  Reynoso is widely published in English and Spanish on an array of issues including comparative law, regulatory reform, community organizing, immigration policy, and Latin American politics for both popular press and academic journals.  She holds a B.A. in Government from Harvard University, a Masters in Philosophy from the University of Cambridge in the United Kingdom and a J.D. from Columbia University School of Law.  She clerked for the Honorable Federal Judge Laura Taylor Swain.  She is fluent in Spanish.

If confirmed, the former Ambassador to Uruguay Julissa Reynoso would succeed political appointee Richard D. Buchan III who served as Ambassador to Spain from January 18, 2018–January 2021. According to AFSA’s ambassador tracker, all but five of 19 ambassadors to Spain (73.7%) since 1960 were political appointees.

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One of the largest evacuations conducted by the State Department with DOD prior to the current one is the evacuation of US citizens from Lebanon in 2006. Nearly 15,000 American citizens were evacuated from Lebanon via Cyprus between July and August 2006.

 

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US Mission Russia Now on “Authorized Departure” For USG Family Members

 

On August 5, 2021, the State Department announced that it has allowed the voluntary departure of U.S. government family members at US Mission Russia. Since this was an “authorized departure” order, FS family members will have the option to leave post if they want to, or remain at post.
Excerpt from the most recent Level4/Do Not Travel Advisory for the Russian Federation:

Do not travel to Russia due to terrorism, harassment by Russian government security officials, the embassy’s limited ability to assist U.S. citizens in Russia, and the arbitrary enforcement of local law. Reconsider travel due to COVID-19 and related entry restrictions.

Do Not Travel to:
The North Caucasus, including Chechnya and Mount Elbrus, due to terrorism, kidnapping, and risk of civil unrest.
Crimea due to Russia’s purported occupation of the Ukrainian territory and abuses by its occupying authorities.

On August 5, 2021, the Department allowed for the voluntary departure of U.S. government family members.

Country Summary: U.S. citizens, including former and current U.S. government and military personnel and private citizens engaged in business, who are visiting or residing in Russia have been interrogated without cause, and threatened by Russian officials and may become victims of harassment, mistreatment, and extortion. All U.S. government personnel should carefully consider their need to travel to Russia.
Russian security services have arrested U.S. citizens on spurious charges, denied them fair and transparent treatment, and have convicted them in secret trials and/or without presenting evidence.  Russian officials may unreasonably delay U.S. consular assistance to detained U.S. citizens.  Russian authorities arbitrarily enforce local laws against U.S. citizen religious workers and open questionable criminal investigations against U.S. citizens engaged in religious activity. Russian security services are increasingly arbitrarily enforcing local laws targeting foreign and international organizations they consider “undesirable,” and U.S. citizens should avoid travel to Russia to perform work for or volunteer with non-governmental organizations.

Russia enforces special restrictions on dual U.S.-Russian nationals and may refuse to acknowledge dual nationals’ U.S. citizenship, including denying access to U.S. consular assistance and preventing their departure from Russia.

The rights to peaceful assembly and freedom of expression are not guaranteed in Russia, and U.S. citizens should avoid all political or social protests.

Read more here.

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