Watch Out For the 90-Day Rule: Mandatory Retirement For Former Presidential Appointees

Posted: 12:54 am ET

 

Yo!

3 FAM 6215
MANDATORY RETIREMENT OF FORMER PRESIDENTIAL APPOINTEES
(CT:PER-594;   03-06-2007)
(State only)
(Applies to Foreign Service Employees)

a. Career members of the Service who have completed Presidential assignments under section 302(b) of the Act, and who have not been reassigned within 90 days after the termination of such assignment, plus any period of authorized leave, shall be retired as provided in section 813 of the Act.  For purposes of this section, a reassignment includes the following:

(1)  An assignment to an established position for a period of at least six months pursuant to the established assignments process (including an assignment that has been approved in principle by the appropriate assignments panel);

(2)  Any assignment pursuant to section 503 of the Foreign Service Act of 1980, as amended;

(3)  A detail (reimbursable or nonreimbursable) to another U.S. Government agency or to an international organization;

(4)  A transfer to an international organization pursuant to 5 U.S.C. sections 3581 through 3584; or

(5)  A pending recommendation to the President that the former appointee be nominated for a subsequent Presidential appointment to a specific position.

b. Except as provided for in paragraph c of this section, a reassignment does not include an assignment to a Department bureau in “overcomplement” status or to a designated “Y” tour position.

c.  The Director General may determine that appointees who have medical conditions that require assignment to “medical overcomplement” status are reassigned for purposes of Section 813 of the Foreign Service Act.

d. To the maximum extent possible, former appointees who appear not likely to be reassigned and thus subject to mandatory retirement under section 813 of the Act will be so notified in writing by the Director General not later than 30 days prior to the expiration of the 90-day reassignment period.

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D/Secretary Sullivan Touts 500 Additional Comments Submitted to Redesign Portal

Posted: 3:40 am ET
Updated: 3:12 pm PT
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Deputy Secretary John Sullivan held a town hall for State Department employees on August 8, 2017 (see Three Reasons For Sullivan’s Town Hall, Plus Feedback, and Some Re-Design Concerns;  Deputy Secretary Sullivan’s Town Hall With @StateDept Employees Now in Gifs), and  Why Tillerson Not Sullivan Needs the Town Hall: Morale Is Bad, “S” is Accountable.  He recently updated employees with several questions he promised to answer during the town hall.

In a brief message to employees, D/S Sullivan said that “the redesign process is moving ahead on schedule” and that they appreciate the employees participation.  Apparently, before the town hall, the State Department received approximately 300 suggestions/ comments submitted to the online portal dedicated for the redesign. Mr. Sullivan told employees that in the week after the town hall, they had received more than 500 additional submissions to the portal. “Each of those contributions has been reviewed and considered by the teams working on the redesign effort.” He urge employees to “remain engaged” as “we work together to improve this wonderful institution to which you and so many others have given so much over our nation’s history.”

On the Department’s Pathways Programs

D/S Sullivan announced that on August 17, Secretary Tillerson approved conversions to one-year term, part-time Civil Service appointments for Pathways interns who have successfully completed the program, who are within their 120-day conversion period, and have been recommended for conversion by their hiring bureaus.

On LGBT employees/assignments

D/S Sullivan told employees that the Department is “dedicated to ensuring equal treatment for all employees.” He informed employees that the State Department “pro-actively maintain a matrix to assist LGBT colleagues planning assignments overseas.” He also told employees that as of 2017, 97 governments have granted accreditation. “This is 58 percent of reported countries, which is a substantial increase since we started monitoring accreditation in 2011. We have also made significant progress in moving countries off the “No” list into another category that may be short of accreditation but provides employees with additional options.”  

On the Travel Approval Process

He informed employees that “there has been no change to the process for routine international travel and a clarification has already been sent to bureau front offices.” We’ve previously learned that the guidance was issued Monday evening, August 7, that ALL overseas travel “to participate in events” must be approved via action memo to the Secretary himself. It also requested a detailed budget breakdown of the trip and information on other participants. The same guidance was rescinded by Tuesday evening, August 8.

Mandatory Retirement Age to 66

D/S Sullivan notes that the mandatory retirement age is a component of the Foreign Service’s up-or-out system, which was modeled after a similar system in the military. “It is also a recognition of the rigors and stresses of a Foreign Service career, largely spent overseas in often difficult and dangerous places.” He notes further that any change to the mandatory retirement age would require a change to the Foreign Service Act of 1980.  His response also cites the exception to the mandatory retirement at age 65  – if the Secretary of State “determines it to be in the public interest to retain someone for a period not to exceed 5 years beyond the mandatory retirement age.” 

That’s in the books, but we’ve never heard of the secretary of state invoke that exception. In one case we are aware of where an FSO was subject to mandatory retirement and asked how he/she can request that exception, HR reportedly told him/her not to bother.

A reader feedback notes that there were mandatory retirement exceptions granted to some FS specialists, specific to Financial Management Officers.  We were informed that extensions for FMOs seem to happen with regularity although “not everyone asks, and some that ask are politely told ‘don’t bother’.”  Those who were granted limited extensions were given 1-2 years and appears to be “high performers who for one reason or another were FS-1s who did not make SFS and were vital members of the regional bureau budget team.”  

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Miller v. Clinton: Court Says State Dept Not/Not Exempt from Age Discrimination Law

We previously blogged about the Miller v. Clinton case in November 2010 (see Miller v. Clinton: Amcit FSN Takes State Dept to Court for Age Discrimination).

On November 4, 2010, the district court granted the State Department’s motion and dismissed the case with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6), holding that the Secretary of State may exempt employees hired under the authority of § 2669(c) from the statutory protections of the ADEA.

The case eventually landed in the Court of Appeals and on August 7, 2012, in a 2-1 decision the lower court’s decision was reversed. The opinion for the Court is filed by Circuit Judge GARLAND; the dissenting opinion is filed by Circuit Judge KAVANAUGH

Excerpts:

GARLAND, Circuit Judge: There is no dispute that the State Department terminated the employment of John R. Miller, Jr., a United States citizen working abroad, solely because he turned sixty-five years old. Indeed, it is the position of the Department that it is free to terminate employees like Miller on account of their age. Moreover, the necessary consequence of the Department’s position is that it is also free from any statutory bar against terminating an employee like Miller solely on account of his disability or race or religion or sex.

After being dismissed on his sixty-fifth birthday, Miller brought suit alleging that his forced retirement violated the federal employment provisions of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a. Accepting the State Department’s position, the district court dismissed Miller’s complaint on the ground that the statute under which Miller was hired, section 2(c) of the Basic Authorities Act, 22 U.S.C. § 2669(c), permits the Department to exempt Miller from the protections of the ADEA. We reverse, finding nothing in the Basic Authorities Act that abrogates the ADEA’s broad proscription against personnel actions that discriminate on the basis of age.

Miller is a U.S. citizen who was employed by the Department of State as a safety inspector at the U.S. embassy in Paris, France. He was hired in October 2003 as “locally employed staff” pursuant to a personal services agreement. Miller’s contract was negotiated and signed under the authority of section 2(c) of the Basic Authorities Act, which authorizes the Secretary of State to “employ individuals or organizations, by contract, for services abroad.” 22 U.S.C. § 2669(c); see U.S. Dep’t of State Personal Servs. Agreement (J.A. 23) (identifying 22 U.S.C. § 2669(c) as the exclusive “[s]tatutory authority for this agreement”). The proper construction of § 2669(c) is the central issue on this appeal.

Among other standard contractual provisions, Miller’s employment contract incorporates by reference “[a]ll provisions of the local compensation plan” for Foreign Service National employees in France. J.A. 23. One provision of the Local Compensation Plan (LCP) is a mandatory retirement clause. That clause follows the (apparently) prevailing French practice of mandating retirement at age sixty-five, and expressly states that “[a]ge 65 is the mandatory age limit for all employees under the LCP.” Foreign Serv. Nat’l Comp. Plan (J.A. 26).

In accordance with the mandatory retirement clause, Miller was advised by letter dated March 22, 2007 that he would be separated from his position due to age, effective July 23, 2007, his sixty-fifth birthday. There is no dispute among the parties that the sole reason for Miller’s termination was his age. The Department has not identified any concerns regarding Miller’s job performance or his ability to perform his duties. According to Miller’s supervisor, “[t]here was no other reason, to my knowledge, for Mr. Miller’s separation[;] it was strictly the mandatory age issue.” Kenan H. Hunter, EEO Investigative Aff. (J.A. 90).

In case you did not know this, the USG may discriminate against “aliens” employed outside the United States. More from the Miller opinion:

In 1974, Congress amended the ADEA to address “[n]ondiscrimination on account of age in Federal Government employment.” 29 U.S.C. § 633a. Section 633a broadly declares that “[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” Id. § 633a(a). The section includes an exception for “personnel actions with regard to aliens employed outside the limits of the United States,” id. (emphasis added), but contains no parallel exception for U.S. citizens so employed. Accordingly, it is undisputed that, as a general matter, the protections of § 633a extend extraterritorially to cover United States citizens employed by federal agencies abroad. See id. (stating that the statute is applicable to “executive agencies as defined in section 105 of Title 5”); see also 5 U.S.C. § 105 (“For purposes of this title, ‘Executive Agency’ means an Executive Department [or] a Government corporation.”).

Ah – but Miller is not an “alien” or an FSO who is subject to mandatory retirement:

[I]n several statutes Congress has clearly and affirmatively authorized the kind of mandatory retirement clause at issue here — but for specified classes of government employees that, again, do not include Miller. The statute that governs the Foreign Service Retirement and Disability System is one example. It states that “any participant shall be retired from the Service at the end of the month in which the participant has reached age 65.” 22 U.S.C. § 4052(a)(1). In Strawberry v. Albright, 111 F.3d 943 (D.C. Cir. 1997), a State Department employee who participated in a pension system governed by § 4052(a)(1) brought suit contending that the system’s mandatory retirement provision violated the ADEA. Not surprisingly, this court had little difficulty concluding that “the ADEA’s general prohibition of age discrimination does not prohibit enforcement of the mandatory retirement provision[]” for participants in the system, because § 4052(a)(1) specifically mandates retirement at age sixty-five and was passed after the ADEA was made applicable to federal employees. Id. at 947. Section 4052(a)(1) does not apply to Miller, however, because he was never a member of the Foreign Service or a participant in its retirement system.

One of the arguments employed by USG lawyers is to insist that “even if the statutory language is ambiguous, “the Secretary’s longstanding interpretation . . . is entitled to deference” under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). DOS Br. 18. Under Chevron’s familiar second step, “if the statute is silent or ambiguous with respect to the specific” point at issue, a court must uphold the agency’s interpretation as long as it is reasonable.”

The Court did not buy that and notes that “the State Department acknowledged that the Secretary has never promulgated a written interpretation of § 2669(c) that asserts the section authorizes her to find the ADEA inapplicable to a contract like Miller’s.” It also points out that “there is no evidence that the current Secretary or any of her predecessors ever knew of the interpretation being advanced in their names. Instead, the Department asks us to rely upon the contract itself, which, the Department says, reflects the agency’s consistent practice of at least twenty years.”

But here is the most interesting part of the opinion:

At oral argument, Department counsel suggested that, if U.S. employment discrimination laws were applicable to U.S. citizens hired abroad under § 2669(c), State Department supervisors might prefer to hire foreign workers who are not protected by those statutes. Oral Arg. Recording 25:00-26:15. Our dissenting colleague proffers a similar explanation of his own. Dissent at 7-9. This line of reasoning does not appear anywhere in the legislative history.28 Nor is that surprising. It requires the assumption that State Department supervisors would prefer to hire employees against whom they are free to discriminate — and that in the absence of a “level” playing field permitting them to discriminate against everyone, those supervisors would decline to hire U.S. citizens.

The Court is shocked 😯 and calls out the callousness and hypocrisy of the institution whose mission is to “Shape and sustain a peaceful, prosperous, just, and democratic world and foster conditions for stability and progress for the benefit of the American people and people everywhere.”

Indeed, while it would be surprising for Congress to assume such callousness on the part of State Department officials, it is more than merely surprising to hear the Department make the same assumption about its own people. And that is doubly so in light of the repeated declarations that it “provides equal opportunity and fair and equitable treatment in employment to all people without regard to race, color, religion, sex, national origin, age, disability, political affiliation, marital status, or sexual orientation.”
[…]
[W]e conclude that the legislative history’s vague references to “flexibility” and “competitive[ness]” are insufficient to indicate a congressional intent to permit the State Department to discriminate against U.S. citizens hired abroad.

And so the reversal:

The judgment of the district court, granting the State Department’s motion to dismiss Miller’s ADEA claim, is reversed, and the case is remanded for further proceedings consistent with this opinion.

Don’t say amen yet.  This is not the end of this, just wait …

Domani Spero

Can you imagine having your HHE delivered to your hotel in WashDC?

FSGB Case No. 2011-037 is about a Foreign Service Officer with 30 years of service, whose last overseas assignment was to a Provincial Reconstruction Team (PRT) in Iraq.  Approaching retirement in the fall of 2009, grievant left Iraq and returned to Washington.  He leased a temporary residence at the Remington Hotel in Washington D.C.  Grievant retired from the Foreign Service, effective Sunday, February 28, 2010.  He remained in the Washington D.C. area, residing at the Remington Hotel.

On Monday March 1, 2010, grievant received a phone call from HR informing him that he has not updated his OF-126 (Residence and Dependency Report) and his most recent OF-126 in his OPF was dated April 30, 1985. Following completion of that conversation, HR e-mailed a blank form OF-126 to grievant. Grievant filled out the form, placing his current Washington D.C. address in Block 8, and electronically signed and dated the form, March 1, 2010.

In October 2010, while attending the Retirement Job Search Program, grievant contacted the Department’s Transportation Office to arrange to have his HHE sent to his retirement home in Baytown, Texas.  He was told that his retirement address was Washington D.C., so his effects could not be shipped at government expense to Texas.

In short, the FSO could proceed to his retirement home in Texas but his 30 years worth of household effects which may or may not have reached the statutory limit of 8,165 kilograms or 18,000 pounds, net weight was stuck in Washington, D.C.

Bulldozer relocating a house in c. 1920

Image via Wikipedia

According to the record of proceeding, which is publicly available online with the names redacted, the grievant contacted HR and was informed the Assignments Panel directed that a Decision Memorandum be sent to the Director General of the Foreign Service.  On November 1, the HR Executive Office (HR/EX) sent a Decision Memorandum to the Director General recommending against approving grievant’s request to retroactively change his separation address to Baytown, Texas.  Excerpt below from the Decision Memorandum:

Mr. [Grievant] (FE-OC) transferred from Iraq to Washington D.C. in October/November 2009.  Facing age limitation mandatory separation, he submitted his retirement package which included the attached OF-126, dated March 1, 2010.  He requested Washington D.C. as his separation address.  No travel orders were issued because his separation address is within a 50-mile radius from Washington D.C.

Mr. [Grievant]’s retirement was effective February 28, 2010.  He has been working in the Department as a WAE since his retirement and recently contacted his CDO to say that he had made a mistake when he completed the OF-126.  He said the correct separation location should have been Baytown, Texas instead of Washington D.C.  He asked that he be re-paneled and retroactively separated to Baytown.  HR/EX would have to issue a travel authorization if his request is approved.

On November 5, the Director General issued her decision, denying the request.

What a way to say “thank you for your service.”

On January 31, 2012, the Foreign Service Grievance Board held that “The grievant met his burden of showing, by a preponderance of the evidence, that his grievance is meritorious.  The grievance is sustained in part, and the Department is ordered to issue grievant travel orders, and ship his household effects (HHE) to the service separation address listed in the form OF-126 in effect on the date of his retirement on February 28, 2010.” 

Below is the case overview from the FSGB:

The grievant, a Foreign Service Officer who retired from the U.S. Department of State, received a telephone call from his Career Development Officer (CDO) in HR/CDA on the first workday (March 1, 2010) after his retirement, in which the CDO told grievant that his OF-126 form must be updated, as the then-current form in grievant’s file was dated in 1985.  Grievant and his CDO did not discuss the significance of the form, or that its contents, specifically Block 8, would be used as the destination for grievant’s travel and the shipment of his HHE.  Without reading the instructions for the form (which he claims not to have received from his CDO), grievant filled it out, citing his temporary quarters in a Washington, D.C. hotel as his separation address, and emailed it back to his CDO.

Several months later, while attending the Job Search Program, grievant called the Department’s transportation division to arrange for shipment of his HHE to his new home in Baytown, Texas, a Houston suburb.  He was told that he was not authorized any shipment as his separation address, as recorded on the March 1, 2010 OF-126, was Washington D.C.  Grievant then called his CDO and asked to have the address changed back to the Houston area.  This required a decision memo to the Director General (DG), which recommended against authorizing the change grievant requested.  The DG denied the request.

The Board found credible the grievant’s contention that he would not have changed his OF-126 had his CDO not called and told him he must do so.  The Board also gave credence to grievant’s argument that given grievant’s last assignment to a provincial post in Iraq, he may not have received the Department notice explaining the importance of keeping the OF-126 updated; it is possible that he was unaware that the form would be used to authorize the final destination of his HHE.  Finally, the Department’s argument that the grievant could not change his retirement address after his effective date of retirement, when the Department did just that only a few months earlier, fails.

The Department is ordered to authorize travel and shipment of effects to the service separation address in grievant’s file on February 28, 2010, the effective date of his retirement, in Houston, Texas.   It is also ordered to reimburse grievant for the costs of storage of his HHE from January 1, 2011 until shipment to Texas.  Grievant’s request to have shipment authorized to Baytown, Texas is denied.

It might be useful to note that the OF-126 is also the basis when you request for Emergency visitation travel (EVT) from the post of assignment to the United States or to other locations in certain situations of family emergency.  Here is the relevant part: “In the event the seriously ill, injured, or deceased family member or incapacitated parent is located outside the United States, or the remains of an immediate family member who has died abroad are to be accompanied to a place outside the United States, travel costs are “constructed,” i.e., the cost of the travel by the employee or employee’s spouse or domestic partner (as defined in 3 FAM 1610) may not exceed the transportation expenses that would have been incurred for travel between the post and the employee’s service separation residence address.”

I’m glad the FSGB did not like the special way they said thank you over there, too.

Domani Spero

 

 

 

Officially Moved: Nancy J. Powell goes from DGHR to New Delhi, and if she turns 65 in 2012, so what?

On December 16, President Obama announced his intent to nominate outgoing Director General of the Foreign Service, Nancy J. Powell to be Ambassador to India.  The WH released the following brief bio:

Ambassador Nancy J. Powell, a career member of the Senior Foreign Service, currently serves as Director General of the Foreign Service and Director of Human Resources at the Department of State.  She was conferred the personal rank of Career Ambassador in January 2011.  Prior to her current assignment, Ambassador Powell served as Ambassador to Nepal (2007-2009), Ambassador to Pakistan (2002-2004), Ambassador to Ghana (2001-2002), and Ambassador to Uganda (1997-1999).  Previous overseas assignments included service in Ottawa, Kathmandu, Islamabad, Lome, Calcutta, New Delhi, and Dhaka.  Her Washington assignments have included: Refugee Assistance Officer, Principal Deputy Assistant Secretary for African Affairs, Acting Assistant Secretary for International Narcotics and Law Enforcement Activities, and the National Intelligence Officer for South Asia at the National Intelligence Council.  Ambassador Powell joined the Foreign Service in 1977 following six years as a high school social studies teacher in Dayton, Iowa.

She received a B.A. from the University of Northern Iowa.

* * *

In State Magazine’s December issue, Ambassador Powell said goodbye after a two-year tenure as Director General of the Foreign Service and Director of Human Resources at the Department of State. She also highlighted the accomplishments of her HR shop including the following:

“We successfully staffed our priority posts, especially in AIP, with volunteers. Thank you to all who recognized the vital importance of providing Foreign Service expertise to these missions. This willingness to step up is crucial to maintaining a system that gives employees the opportunity to decide when it is best for them and their families to serve in these dangerous places without sacrificing our mission.”

That sorta got my porcu-quills up.  The previous DGHR who oversaw arm twisting and directed assignment threats of diplomats during Condi Rice’s time, got a nice onward assignment as ambassador to a tropical country. His deputy, similarly, ended up as ambassador to another tropical “paradise” albeit, where the last surviving tribes in the world engaging in cannibalism lives. Don’t worry, the tribe does not venture into the capital city just to dine.

I wish — just for once, that the folks asking people to
volunteer to serve in our priority posts in the war zones of Afghanistan
and Iraq and in Pakistan, would themselves volunteer to work there? No,
not just visit. But. Work. There. Because why not? That would be a nice
example of leadership in action instead of a misfired caper of “follow
what I say but not what I do.”

Wonderful to see all you volunteers stepping up to fill in vacant slots in AIP posts (Afghanistan, Iraq, Pakistan), but Ambassador Powell herself ain’t going there. She was in Pak seven years ago before the civilian uplift and before State bundled it up as part of AIP.  And now she is going to New Delhi, India, a 15% COLA and a 20% hardship post. What are you grumbling about?  India is almost an AIP post, and really — given its close proximity to Pakistan shouldn’t it count as a priority post also without the flying bullets? Wonder where the Deputy DGHR going for onward assignment? Don’t know but we’ll sure hear about it.

Col. Michael Howard, commander, 4th Brigade Combat Team,  25th Infantry Division,
escorts senior State Department representatives, Ambassador Nancy Powell, Ambassador
Joseph Mussomeli, and Dr. Ruth Whiteside at Forward Operating Base Salerno
in Khost province, eastern Afghanistan, Oct. 14. Representatives visited various areas
within the provinces  of  Paktya, Paktika, and Khowst to assess
the security and governance in the area.
Photo by Staff Sgt. Marcus Butler

In any case, if confirmed, the reportedly 64-year-old nominee would succeed Tim Roemer, who resigned from his post in April 2011 following a two-year stint as U.S. envoy to India.  And if all goes well, this would be Ambassador Powell’s 5th ambassadorial appointment.

Besides the issue of an onward assignment, I find this a rather curious nomination in terms of timing.  It does not look like she will get a confirmation hearing between now and the end of the year. So she would need to be renominated next year. Depending on how things are in the Senate, she could have her confirmation hearing within the first three months. Or not.

I recognize that 2012 is an election year but Ambassador Powell is a career diplomat.  The presidential election outcome should have limited bearing on her tenure.  Typically in a political transition, career appointees with some exceptions are allowed to serve their full term, which is normally three years. Except that Ambassador Powell is a prospective candidate for what I’d call, State Trek’s “airlock.

If her Wikipedia entry is correct and she was born in1947, she would turn 65 next year. She would run right smack of the mandatory retirement age under the Foreign Service Act of 1980. Which means, her ambassadorial tenure in New Delhi could be a short 8-10 months or less depending on when she would get her Senate confirmation or when is her actual birth month. Normally, FSOs are supposed to retire on the last day of the month they turn 65.

Spending 2-3 months on confirmation preparation for a tenure that would not even last more than 12 months seems like a questionable allocation of resources. Also the USG has to pay for her entire relocation to India.  Retired diplomat Peter Burleigh (who served as Ambassador to Sri Lanka and the Maldives, and the UN) has been acting as Charge d’affaires at U.S. Mission India since Mr. Roemer’s departure last spring. Two consecutive one-year tours of the chief of mission in India would not have any impact on continuity, priorities and mission effectiveness, of course.

But it gets better.  Apparently, there is also such a thing called the Foreign Service Standard Operating Procedure D-01:

(click on image for larger view)

In all of US Embassy India’s constituent posts, only Kolkata is considered an HDS post.  So, if the SOP above is current, why is Ambassador Powell, a career member of the Foreign Service even nominated for New Delhi when it seems she would hit 65 in less than 24 months?

I bring this up for good reason.  See, the given justification why Dr. Elizabeth Colton’s assignment to Algiers was withdrawnn according to her age discrimination court filings was that “she would be unable to fulfill a two year tour because of the “statutory retirement requirements.”

And yet, here the State Department has recommended and the WH nominated somebody who will be legally kicked out under the law for being officially old next year.  The only reason this would not seem like a questionable allocation of resources is if a decision is already made that the Director General, Ambassador Powell, if confirmed, would not be mandatorily retired next year. Yeah, because there is something called — whatchamaculit?  A mandatory retirement waiver or something called an extension of service if it’s “in the public interest.”

(click on image for larger view)

Um, wait — what’s that? Ambassadors are exempt from “officially” getting old? Sec. 812 of the Foreign Service Act of 1980 says that “Any participant who is otherwise required to retire under subsection (a) while occupying a position to which he or she was appointed by the President, by and with the advice and consent of the Senate, may continue to serve until that appointment is terminated.”

So if Ambassador Powell gets confirmed, and I see no reason why she won’t get senate confirmation given that this would be her 6th, she could serve from 2012-2015.  Until she’s 68.  No mandatory retirement waiver even required.

Now, one of the majority arguments for mandatory retirement in the Foreign Service the last time it was litigated to conclusion has always been that the Foreign Service involves extended overseas
duty under difficult and often hazardous conditions, and that the wear
and tear on members of this corps is such that there comes a time when
these posts should be filled by younger persons. Mandatory retirement,
it is said, minimizes the risk of less than superior performance by
reason of poor health or loss of vitality. The Court noted the “common
sense proposition that aging — almost by definition — inevitably wears
us all down.”

It is good to know that ambassadors unlike regular
members of the U.S. diplomatic corps are not afflicted by this “common
sense proposition” of aging.

So there you go — there are rules and there are rules, and just as important, there are exceptions to the rules.  The 1% and 99%, even in the Foreign Service — who knew?

On a related note, Dr. Colton who I heard was nominated for the Edward R. Murrow Award for Excellence in Public Diplomacy for her work in Egypt this past year (a nomination gobbled up by a black hole never to be heard of again), and was forced to retire last September is scheduled to appear before the U.S. Court of Appeals for her age discrimination case against the State Department.

 

 

Updated with additional info on MRA under the FS Act of 1980 12/18.

Colton v. Clinton Goes to the Court of Appeals …. And Oh, Who Are We Going to See in Kabul Next, Wolf Blitzer?

Last year, the DC District Court Judge Richard J. Leon rejected FSO Elizabeth Colton’s ADEA claims against Secretary of State Clinton and upheld the Foreign Service Act’s mandatory retirement provision.

The Court’s decision included the following which bears repeating here:

“Colton’s allegation that the Secretary of State’s refusal to grant her an extension pursuant to § 4052(b) was a discriminatory act is unavailing. Although the mandatory retirement provision grants the Secretary the discretion to retain a person for up to five years past the mandatory retirement age if in the “public interest,” there is no requirement that the Secretary do so..”

Dr. Colton had rotated out of Karachi in the middle of the district’s great floods and was granted a one-year extension for an assignment at the U.S. Embassy in Cairo.   The Legal Times citing court records reported that on Aug. 4, the State Department told Colton via e-mail that her mandatory retirement had been postponed until Sept. 2011 and that she had been approved to serve as the information officer for the U.S. Embassy in Cairo. The local press reported her arrival in Egypt on September 2010 here.

Dr. Colton was asked to jumped out of the water in Pakistan and was sent to Egypt where she jumped into the fire. Need we mention that she was at post before, during, and after the Egyptian Revolution like all other core embassy employees younger than her?  We know because we continue receiving the embassy press updates all that time.

That extension should run out just about now.   But I understand that the case has now gone to the Court of Appeals where Dr. Colton was granted until November 21, 2011, to file her appellant’s brief.

When she gets thrown out the airlock at 66 when that one-year extension is done, I supposed it just shows that there is no such thing as in the “public interest” when it comes to midlevel public diplomacy professionals even with the State Department’s persistent staffing gaps in that cone, and despite the turmoil in the large swath of the Middle East.

As if to put emphasis on the notion of “public interest,” (or lack thereof), which of course, the Director General of the Foreign Service and the State Department gets to interpret, just when and how that is at play — we are happy to report that David Ensor, formerly of CNN and US Embassy Kabul and now of Voice of America has been replaced by former CNN/ABC correspondent Eileen O’Connor.

Yep, for the same position at the US Embassy in Kabul as Director of Communications and Public Diplomacy. See? Routine State Department job titles do not even cut the cake there.

Via the Potomac Flacks: “First reported in Politico’s “Playbook”, Eileen O’Connor has been named the new Communications Director and Director of Public Diplomacy at the U.S. Embassy in Kabul, Afghanistan, succeeding David Ensor.  O’Connor is currently Counsel in the law firm McDermott, Will and Emery.  She is a former CNN and ABC foreign correspondent, who over a 24-year career in journalism was based in London, Moscow, Tokyo and in Washington, DC.”

Over a decade ago when the State Department’s own State Magazine picked Dr. Colton as an interesting specimen among FSO newbies, the magazine writes:

Ms. Colton also worked as a journalist with firsthand experience abroad. She reported for Asia Week, a Reuters magazine, and was a London-based television producer for both NBC and ABC covering the Middle East and North Africa. In 1981, she won an Emmy for two ABC Nightly News pieces on Libya. Later she established Newsweek’s Middle East bureau in Cairo. The Waterford, Va., resident’s coverage of the Persian Gulf War prompted National Public Radio to offer her a job as its State Department correspondent.

Remember that group of Iraqi soldiers who surrendered to a journalist? You guessed it.

They gave up to NBC radio correspondent Liz Colton.

Read more about her in  Colton v. Clinton: Expeditionary Diplomat Booted Off Career Ladder, Too Old

Any how — we are supposed to understand that there is no “public interest” in the extension of this career diplomat’s tenure past the mandatory retirement age, no matter how excellent her service in the field of public diplomacy because she is too old?  Like I said before but let me say it again — that super sucks!

No matter that she is serving in one of the top deficit cones in the Foreign Service? Ditto.

No matter that she is serving in the midlevel ranks where there occur the most staffing gaps? Ditto.

Should we, therefore, conclude that while there is no/no “public interest” for the State Department to extend its “oldies but goldies” employees who clearly have the chops, the hiring of sorta big name journalists for its big time public affairs shop in the war zone is/is in the country’s “public interest?”

Like there isn’t anyone in all of the State Department’s career corps  qualified to run the US Embassy Kabul’s press shop? What have they done to all the qualified career professionals in public affairs, throw them all out the airlock because they’ve turn 65?

I’m curious just how much taxpayer money goes to this kind of “public interest.”

And who, pray tell are we going to see in Kabul next, Wolf Blitzer? Presumably, Ms. O’Connor will have a one-year tour at the US Embassy Kabul. So for 2012-2013, can we please, please vote who we should have there next?

Colton v. Clinton: Age Discrimination Case Fails in DC Court

Old People CrossingImage by schnaars via FlickrOn September 24, Judge Richard Leon of the District Court for the District of Columbia dismissed FSO Elizabeth Colton’s age discrimination case against the State Department.  Below are selected excerpts from the Memorandum of Opinion:

On the retaliation claim:
[C]olton has failed to comply with her statutory obligation to notify the EEOC within 180 days after the alleged unlawful practice-i.e., retaliation-occurred. As a result, her retaliation claim in Count III of the Complaint must be dismissed in its entirety.

On the non-promotion:
The failure to promote was included as an additional act of discrimination and retaliation in her First Amended Complaint filed on October 22, 2009. See id. As discussed above, the plain language of § 633a(d) requires plaintiff to have filed notice of her intent to sue within 180 days “after” the allegedly “unlawful practice” occurred. Since it was impossible for the January and April 2009 notices to include any allegations of the purported failure to promote in October 2009, Colton would have had to file another amended notice to comply with the statutory prerequisites to suit. See Morgan, 536 U.S. at 114 (finding failure to promote to be a “discrete act”). As she has failed to do so, to the extent that plaintiffs discrimination claim in Count I is based on the agency’s decision not to promote her, it must also be dismissed.

More below:

In Count I, plaintiff claims that the State Department discriminated against her on the basis of age by: (1) denying her the two-year position in Algiers; (2) failing to assign her to a position “equivalent” to the Algiers position; (3) denying her requests for an extension of service under 22 U.S.C. § 4052(b)(2); and (4) failing to promote her in October 2009. See CompI. ~ 91. With the exception of the failure to promote allegation,
which is not properly before this Court as explained above, plaintiff is, in effect, asserting that the State Department discriminated against her by complying with and enforcing the statutorily mandated age of65. This claim must fail as a matter oflaw, however, because our Circuit has already held that the mandatory retirement provision Colton is challenging here is a valid exception to the ADEA. See Strawberry v. Albright, 111 F.3d
943,947 (D.C. Cir. 1997).
[…]
The Circuit Court found that Congress’s reenactment of the mandatory retirement age in the Foreign Service Act of 1980-which raised the mandatory retirement age from 60 to 65-after the ADEA was made applicable to federal employees reflected Congressional judgment that “the ADEA’s general provision on age discrimination does not prohibit enforcement of the mandatory retirement provisions.” Id.; see also Kimel v. Florida Bd. of Regents, 528 U.S. 62, 68-69 (2000) (“Under the current ADEA, mandatory age limits for law enforcement officers and firefighters-at federal, state, and local levels-are exempted from the statute’s coverage”); Stewart v. Smith, 673 F.2d 485,492 (D.C. Cir. 1982) (finding maximum age rule for federal law enforcement officers to be an exception to the ADEA).
[…]
In light of this controlling authority, plaintiff’s challenge to the enforcement of the mandatory retirement provision must be dismissed. Her allegations of discrimination based upon the failure to assign her to the Algiers position simply reflect her disagreement with the defendant’s implementation and enforcement of the mandatory retirement provision. Plaintiff admits that the Algiers position or, for that matter, any other two-year tour of duty beginning in Mayor June 2009 would have required her to serve nine or ten months past her mandatory retirement age. See Compl. ~ 51. Colton also admits that she did not view any of the available one-year assignments as “equivalent.” See id. ~~ 64, 72. Thus, plaintiffs ineligibility for the Algiers assignment or any other assignment she thought “equivalent” resulted from enforcement of the mandatory retirement provision of the Foreign Service Act and, therefore, is not actionable under the ADEA.
[…]
What Colton fails to acknowledge is that she was denied the Algiers position because a/the mandatory retirement provision, which our Circuit has already held to be an exception to the ADEA. She further attempts to distinguish Strawberry by arguing that, unlike that plaintiff, who challenged his mandatory retirement after being forced to retire, she is complaining of alleged acts before she turned 65. As the defendant points out, this argument, if accepted, would subject the defendant to suit for all actions taken prior to the actual date that an employee must retire under the Foreign Service Act, even when the challenged acts are taken to implement or enforce the requirements of the mandatory retirement provision. Such a result is, of course, nonsensical. Simply put, it is irrelevant whether the challenged acts occurred before or after plaintiff s mandatory retirement, and it is of no moment when the suit is brought. The only pertinent question is whether a challenged act was undertaken to implement or enforce the provision. If so, then the ADEA’ s general prohibition on age discrimination does not apply. See Strawberry, 111 F.3d at 947.
[…]
Similarly, Colton’s allegation that the Secretary of State’s refusal to grant her an extension pursuant to § 4052
( d) was a discriminatory act is unavailing. Although the mandatory retirement provision grants the Secretary the discretion to retain a person for up to five years past the mandatory retirement age if in the “public interest,” there is no requirement that the Secretary do so.
[…]
Colton is woefully misguided to imply that this Court can and should disregard Supreme Court precedent if it appears outdated. The Supreme Court alone can overrule its own precedents, and the fact that a plaintiff articulates a new theory as to why a different result should be reached is insufficient to revisit a settled issue.

The Memorandum of Opinion is here.

We are still trying to reach Dr. Colton’s lawyers for a statement. 

Sorry folks, there won’t be any show for now. Please mind the old people sign (political appointees, civil servants and contractors excepted, of course).

Later ….

This made me think of John Scalzi — probably because in his Colonial Defense Forces, you have to be 75 to sign up for the Army;  his Colonial Union want people who who carry the knowledge and skills of decades of living to fight their wars.

But not yet, not here, not now.    


Mandatory Retirement in the Foreign Service: The Numbers Game

I promised a follow up post on my recent take on mandatory age retirement in the Foreign Service (sorry, jury duty for several days and school reopening made blogging time really tight). For prior blog posts and links on this subject, please check out the MAR page here.

The most popular argument against mandatory retirement seems to be its perceived impact on the promotion prospects of lower rank employees.  A commenter in this blog urged me to look at the promotion statistics (I have) and says that “equally qualified and accomplished foreign service officers/specialists ( especially specialists) are having exceptionally hard time getting promoted due to their colleagues choosing to stay and work in foreign service till they are forced to leave.”

Frankly, I think folks “choosing to stay and work in Foreign Service till they are forced to leave” (at age 65) is only in the public interest if/when these employees are no longer competent for the jobs they were hired to do.     

The State Department Spokesman, PJ Crowley, himself was quoted in the recent NPR article saying, “the idea is to make sure younger Foreign Service officers have a chance to move up.”

In any case, let’s look at numbers.


Looking at the Numbers: The Promotion Statistics

Below are three sets of data – the promotion statistics from 2007-2009. The screen captures are of the statistics of midlevel generalists. Links to the promotion issues in State Magazine are provided below so you can easily look them up:

Promotion Statistics 2007

http://2001-2009.state.gov/documents/organization/102927.pdf
APRIL 2008 | STATE MAGAZINE | 29

click image to see larger view

HR in Data Analyzed (State Magazine | April 2008) had the following:  “The overall promotion rate for all Foreign Service employees eligible for promotion in 2007 was 26 percent, the same as the 2006 rate and the five-year average.”

Overall, promotion rates for eligible FS generalists have increased since 2003. The number of promotions and promotion rates from FS02 to FS01 were slightly higher than in 2006 and were about equal to the five-year average. The FS03 to FS02 promotion rate was higher than 2006 and higher than the five-year average promotion rate of 48.7 percent.

On the staffing deficit: The 2007 promotions reduced a 9 percent mid-level deficit to just over 1 percent. Considering projected attrition for the remainder of 2008, HR estimates the deficit will be below 5 percent by September. If positions, hiring, promotions and attrition rates remain constant, the deficit will be eliminated by the end of the 2010 promotion cycle.

We note from the table above that the average time-in class of promotees from FS03 to FS02 was lowest for MGT at 3.1 and highest for ECON at 4.4; for FS02 to FS01, the time-in class was lowest for CON at 5.3 and highest for ECON at 6.2.

Promotion Statistics 2008
http://www.state.gov/documents/organization/121364.pdf
p.38 State APRIL 2009

click image for larger view

In the promotion issue of State Mag By the Numbers (April 2009), HR said that “The overall promotion rate for all eligible Foreign Service employees for 2008 was 25 percent, one percent less than in 2007 and the five year average rate.”

The number of promotions and promotion rate from FS02 to FS01 were slightly higher than in 2007 and the five-year average.  At 44.9 percent, the promotion rates for FS03 to FS02 were lower than the 55.1 percent in 2007, but the number of promotions was only two fewer.

On the staffing deficit: “[T]he Department faces a deficit at the mid-level—with the management and public diplomacy cones facing significant deficits. While it will take a few more years before the deficit is eliminated, it has been shrinking. A recent analysis showed that the 6 percent mid-level deficit that existed in September 2008 is now a 1 percent surplus after factoring in the 2008 promotions. However, the bureau still projects a mid-level deficit of less than 3 percent at the end of the fiscal year. While the overall mid-level deficit is declining due to the transition of those hired during the Diplomatic Readiness Initiative into the mid-ranks, there will be an overall FS02 deficit in the range of 14 percent as of September 2009. Even if the Department receives authority to hire above attrition this year, the overall mid-level deficit will not be eliminated before the end of the 2010 promotion cycle.”

We note from the table above that the average time-in class of promotees from FS03 to FS02 was lowest for MGT at 2.9 and highest for CON at 3.5; for FS02 to FS01, the time-in class was lowest for PD at 5.5 and highest for ECON at 6.5.


Promotion Statistics 2009

http://www.state.gov/documents/organization/138927.pdf
April 2010 State Magazine 29

click on image for larger view

HR in Timely Data published this past April said that “The overall promotion rate for all eligible Foreign Service employees for 2009 was 24 percent, 1 percent less than in 2008 and 2 percent less than the five-year average rate.”

The number of promotions and promotion rates from FS02 to FS01 were slightly lower than the figures for 2008 but higher than the five-year average. At 45.6 percent, the FS03-to-FS02 promotion rate was higher than the 44.9 percent rate of 2008,

On the staffing deficit: “As most Foreign Service generalists know, the Department still faces an overall deficit at the mid-level—where the management and public diplomacy cones continue to face significant deficits. Although the deficit is shrinking, a recent analysis showed that the 4 percent mid-level deficit that existed in September 2009 is now a 3 percent surplus after factoring in the 2009 promotions. However, HR stills projects a mid-level deficit of 1 percent at the end of the fiscal year due to attrition. While the overall mid-level deficit is declining due to the transition into the mid-ranks of those hired during the Diplomatic Readiness Initiative, the bureau still projects an overall FS02 deficit in the range of 11 percent as of September 2010. Although HR once anticipated the overall mid-level deficit would be entirely eliminated by the end of the 2011 promotion cycle, it now appears the increase in mid-level positions expected under Diplomacy 3.0 will result in a continued mid-level deficit until approximately 2015.”

We note from the table above that the average time-in class of promotees from FS03 to FS02 was lowest for PD and CON at 3.1 and highest for ECON at 3.6; for FS02 to FS01, the time-in class was lowest for PD at 5.4 years and highest for POL at 7.1.

* * *
So — the overall promotion rate was at 26% in 2006 and 2007; in 2008 it went down a percentage to 25% and in 2009 it went down another percentage to 24%; the latest stats 2% less than HR’s five year average.

In 2007, HR said that “overall, promotion rates for eligible FS generalists have increased from 29.3 to 32.3 percent since 2003.” In 2008, the promotion rates in the midlevels were not significantly higher or lower ( “the number of promotions was only two fewer” for FS03 to FS02). Last year, The number of promotions and promotion rates from FS02 to FS01 were “slightly lower” than the figures for 2008, but at 45.6 percent, FS03-to-FS02 promotion rate was higher than the 44.9 percent rate of 2008.

So what do we make of this?  A percentage off here and there but no significant increase or decrease in the midlevel promotions.

We also note that the average time-in class for promotees in Class FS03 to FS02 are not significantly different: 2007 ranged from 3-4 years; 2008 range from 3 to 3.5; and 2009 range from  3 to 3.5;  For Class FS02 to FS01, the average time-in class was 5-6  in 2007, 5-6 in 2008, and 5-7 in 2009. 

Then there’s another number to look at ….

Looking at the Numbers: The Staffing Deficit

Since 2006, HR has been projecting the elimination of the staffing gap at the end of the 2010 promotion cycle. “A recent analysis showed that 2006 promotions reduced the 15 percent mid-level deficit that existed in September 2006 to approximately 7 percent. Attrition is projected to drive the deficit back up to approximately 11 percent by next September. Assuming positions, hiring, promotions and attrition rates remain constant, the mid-level deficit should be eliminated at the end of the 2010 promotion cycle.”

In 2007, HR again projected that the “deficit will be eliminated by the end of the 2010 promotion cycle.”

In 2008, HR again point to the continued decline of staffing deficit but points to the FS02 staffing gap, “While the overall mid-level deficit is declining due to the transition of those hired during the Diplomatic Readiness Initiative into the mid-ranks, there will be an overall FS02 deficit in the range of 14 percent as of September 2009. Even if the Department receives authority to hire above attrition this year, the overall mid-level deficit will not be eliminated before the end of the 2010 promotion cycle.”

In 2009, HR changed its projected estimate in closing down the staffing gap: “[T]he bureau still projects an overall FS02 deficit in the range of 11 percent as of September 2010. Although HR once anticipated the overall mid-level deficit would be entirely eliminated by the end of the 2011 promotion cycle, it now appears the increase in mid-level positions expected under Diplomacy 3.0 will result in a continued mid-level deficit until approximately 2015.

A GAO report released in 2009 concluded that “State faced a 28 percent greater deficit at the FS-02 level than it did in 2006, with mid-level positions in the public diplomacy and consular cones continuing to experience the largest shortages of staff overall.”

11% ? 28%?  That’s a gaping hole in the mid level ranks of the Foreign Service. As a consequence, there is also a corresponding gap in the leadership pipeline, although State would not admit to this. 

Director General of the Foreign Service Nancy Powell, this past July said in the interview that “it will be several years before we are able to close the gap at the midlevels that resulted from restricted hiring in the 1990’s.”

HR has repeatedly explained this process: The primary factor in determining the number of promotion opportunities to be allocated is service need. The model used to calculate promotion opportunities is based upon position requirements and estimated personnel, simulating the movement of employees through the Foreign Service career system over a multi-year period of time. It then uses averages, typically five years, for closing the gap between positions and personnel. This is done to create a smoothing effect since trying to promote exactly the right number every year to fill projected gaps would create dramatic year-to-year swings in promotion opportunities.

A gaping hole in the middle of the career ladder is not “service need?” Does holding down three jobs in addition to your own in icky-stan really builds leadership hardiness and character? Or is this a simple exercise in not drowning?

The promotion rates above have not shown significantly speed for the midlevels despite the staffing gaps. And State has continued to trim the ranks through its “up-or-out” system and mandatory age retirement.
In 1977 when Bradley v. Vance went to court, the filings include an item that says an average of 44 FS employees were subjected to mandatory age retirement annually.

Are there any current data that shows MAR waivers have been granted more in the last several years causing the clog up in the promotion pipeline?

Doesn’t it seem curious to presume that the older FS employees are clogging up the promotion pipe when right in the middle there are unfilled slots? Still, people are not going up the ladder any faster. Why?

In a recent issue of State Magazine, Under Secretary for Management Patrick Kennedy was reported as making a pitch to get Civil Service and Foreign Service retirees to return as When Actually Employed staff.  He also said that the Department will not place inexperienced employees into mid-level assignments, where many openings exist. (July/August 2010 State Magazine p.5)

As far as we know, there has been no midlevel hiring to address the staffing gaps, the MAR waiver numbers are foggy at best (we’ve heard employees eligible for retirement told not to bother applying for MAR waivers), and the “up-or-out” system (under which failure to gain promotion to higher rank within a specified time in class would lead to mandatory retirement) is still working.  Meanwhile, the civilian surge is on in Afghanistan, Iraq and almost in Pakistan.

It looks to me like the mantra “when we’re fully staffed” will be around for many more years and holding down one job plus two or three might be the new normal for years to come.

Unless we see the MAR waiver numbers showing a high number of 65+ employees retained in the ranks, it also looks like employees having an “exceptionally hard time getting promoted” is a calculated management decision.

Looking at the Numbers: Comings and Goings

While it is true that Congress has been stingy with increased staffing for the State Department for many years, it is also true that the last large influx of new hires happened during the Powell term at State. Under Rice’s term, new hires trickle in at a dismal number.

The current SoS has been successful in adding more numbers to the FS ranks. The latest addition is some 700 numbers in FY2011. But we still have to see if that continues despite a bleeding red budget environment and elections in FY2012.

Meanwhile, the State Department is turning gray. In 2007, the Director General said that “approximately 17 percent of the Department’s workforce is currently eligible to retire. In five years, that number will increase to 35 percent, and in 10 years, more than half of the current workforce will be retirement eligible.” (35% in 2012, more than half in 2017)

It does not have a good track record projecting, but if State’s HR latest projection holds true, the staffing gap will be closed in 2015, just around the time when over a third of its workforce is eligible to retire.

Which almost ensure that the staffing gaps will persist for years to come compounded with an imminent experience gap in the next several years.

What’s the immediate solution?

Even if Congress does not step in to tweak the Foreign Service Act (increase retirement age to 67 or 70, or eliminate mandatory age retirement altogether), State can do several things to mitigate the staffing gaps but has been unable or unwilling to do so.

Here are things that the State Department can do for the short-term:

  • It could freeze promotions for employees working beyond 65 but keep them in the workforce until the gaps are bridged.
  • It could extend MAR waivers to employees in certain deficit cones and skills temporarily.
  • It could allow MAR subjected employees to complete their retirement tours, without removing them on the last day of the month they turn 65 to minimized staffing gaps and allow for a regular transition/rotation.
  • It could design a fast-track promotion system across the board for talented and skilled employees

We don’t like hearing FSNs telling officers “this is how we’ve always done this,” and yet, on this issue, State has demonstrated the same rigidity in its practices.  State has cited the MAR as a lampost in its organizational life, as if to divert from it would break the institution.  In the end, it may take Congress to nudge the State Department forward on this subject. Either that or the Courts could change this practice.  Because if there are two institutions that are forceful in bringing change into the State Department, that’s Congress and the Courts.   

What’s the long term solution?

I don’t have the answer. But sooner or later, Congress or the Courts will take on the mandatory retirement issue in the Foreign Service.

America at work has changed.  William D. Novelli of AARP said that less than 2% of American workers are in agriculture, and manufacturing employs only about 13% of American workers.  The result? “[T]he economy has shifted away from hard, physical labor and agriculture, “brains and learned skills have dominated, if not completely replaced, brawn and endurance.” […] A move to the knowledge economy, to which older workers with their added experience and wisdom are ideally suited and which increasingly makes the notion of a set “retirement age” obsolete.” 

The Foreign Service in particular, despite calls for the expeditionary corps is squarely in the “knowledge” game.

People are also living longer – workers who are 65 today will live to an average age of 83.  

There are, also, implications for Social Security … a big messy headache in itself in the years to come…

It is inevitable that this issue will gain much more traction in the foreseable future.

Age discrimination, is change thy name… 

Peter Cappelli, the director of Wharton’s Center for Human Resources says that “If you look at the research on older workers, you see an incredible amount of discrimination against them, bigger than race, bigger than gender.”

It is probably worth noting that in Bradley v. Vance, the Supreme Court sided with the government in an 8-1 decision. But if you look at that case closely, you will note that it was not an age discrimination case litigated under the 1967 Age Discrimination in Employment Act (ADEA) but  on whether Section 632 of the Foreign Service Act of 1946 violated the Equal Protection component of the Due Process clause of the Fifth Amendment.

In a case currently under litigation, FSO Elizabeth Colton’s lawyers alleged that she was “subjected to discrimination by denying her the opportunity to serve at certain posts simply because of her age.”

There is such a thing as legal discrimination — employers may consider characteristics that would otherwise be discriminatory if they are bona fide occupational qualifications (BFOQ). Hooters, for instance in a case where a male waiter applicant alleged discrimination, argued a BFOQ defense, which applies when the “essence of the business operation would be undermined if the business eliminated its discriminatory policy.”

We have yet to see a BFOQ for the Foreign Service.

The Foreign Service, of course, is not alone. There is mandatory retirement age for state and local police (55-60) federal firefighters (57); federal law enforcement and corrections officers, including DSS agents (57); air traffic controllers, commercial airline pilots (60) and even bus drivers (65). 

You will note that all the above occupations with earlier than normal retirement ages share a “public safety” component. Would the American public or a foreign public be harmed if Foreign Service employees worked beyond 65?

If Colton v. Clinton goes to trial, we would perhaps learn how many FS employees are subjected to MAR annually? How many MAR waivers are granted? How many waivers are granted to SFS members and regular members of the FS? Evidence of performance pre-65 or post 65. And BFOQs. And those are just for starters.

And that’s why Colton v. Clinton would be a much more interesting case to follow than its predecessor if/when it goes to trial. 

 

 


 

 


 


 

Smart Diplomacy and the Age Discrimination Saga of US Diplomat, Elizabeth Colton

I’ve written multiple times in this blog about US diplomat, Elizabeth Colton regarding her litigation with the State Department on the mandatory retirement in the US Foreign Service. But I’ve never meet her or worked with her. And because her case is under litigation, she has also declined to be interviewed for this blog. But Walter Russell Mead is somebody who has meet her, and knows her and is familiar with how she works. And fortunately, he can speak about her because he is not an employee of the State Department.  

Walter Russell Mead
is the Henry A. Kissinger senior fellow for U.S. foreign policy at the Council on Foreign Relations. His previous book, Special Providence: American Foreign Policy and How It Changed the World, won the Lionel Gelber Award for the best book in English on international relations in 2002. The Italian translation won the Premio Acqui Storia awarded to the most important historical book published in Italian.  He was recently in Karachi to meet with Pakistani students, journalists, and others to discuss US Foreign Policy.

This past weekend, Mr. Mead posted Smart Diplomacy? As Crisis Hits Karachi, Bureaucrats Sideline Star in The American Interest Online.  Excerpts below

On my recent lecture tour in Pakistan, I was lucky enough to spend some time in Karachi with Dr. Elizabeth Colton, a 65-year-old ex-journalist who has made her second career in the State Department working on public diplomacy for the United States.

This wasn’t the first time I’ve encountered Dr. Colton.  Over the last eight years I’ve run into her in some of the world’s most dangerous hotspots.  In Algeria during a particularly violent time, in Sudan, twice in Pakistan, and in Baghdad back when life there was even more dangerous than it is now, Dr. Colton has been working to win friends and make America’s case out in places where that is a difficult and dangerous thing to do.  I’d never met Liz before I made a State Department sponsored lecture tour in Algeria where she managed things brilliantly.  Since then I’ve come to see her as one of America’s most effective and brilliant (if often unconventional) diplomats and developed tremendous respect for who she is and what she does.

She does an incredible job, using contacts and connections she built during a lifetime in journalism to bring people into contact with the US who normally wouldn’t have anything to do with us.  I’ve seen her work doggedly through the resistance of stiff anti-American bureaucrats to get American diplomats and speakers onto university campuses for free-wheeling debates in places where free speech isn’t normally allowed.  I’ve seen her build circles of loyal friends in countries where too many American diplomats never get outside the security bubble.  She’s responsible for reaching out to hundreds of journalists and students and persuading them to apply for programs that bring them to the US to see us for themselves — and to take those perceptions back home.
[…]
Her Karachi connections run particularly deep; she’s known the Bhutto family from her time in London when she helped the newly exiled Bhuttos following the military coup that deposed, arrested and ultimately hanged Benazir Bhutto’s father.  Given that the Bhutto’s party is now running the country (to the extent that anyone is), her connections, her journalistic skills and her deep knowledge of some of the key figures in Pakistani politics make her an invaluable public servant in a critical time in one of the world’s most important and troubled countries.
[…]
[T]he State Department bureaucracy wants to put her out to pasture — and to do it in the most inefficient and expensive way possible.

There’s a mandatory retirement age for State Department foreign service officers of 65.  It’s a hangover from the time when arbitrary retirement ages were common in the American economy; it may well be unconstitutional age discrimination.  The policy only applies to career officials; political appointees (who usually hold the most powerful and best paid State Department jobs) are exempt.  Exceptions to this shortsighted and inane policy can be made on a case by case basis, but the State Department, possibly because Dr. Colton has challenged the law in court, is refusing to extend her time in Karachi.  […] The Near Eastern bureau has asked for Colton to be assigned to the Cairo embassy for a three year tour, but for obscure bureaucratic reasons the State Department is limiting the extension to one year.
[…]
Yes, friends.  We have an experienced, savvy and dedicated diplomat in Karachi, Pakistan, the intellectual and media capital of the country on the front line of whatever this global conflict that we’re fighting is called who was willing to stay a second year in a post that most diplomats leave after one.  And what does the State Department want to do?  Take her out of Karachi where she’s built an extraordinary network and send her nonsensically on an artificially shortened one year assignment to Cairo
[…]
[T]reating Dr. Colton in this thoughtless and cavalier way is insane.  We do not have a surplus of well-connected, seasoned public diplomats who are as Colton was, ready, willing and able to spend years building relationships in the world’s most dangerous places.  When we find people like this, we should honor and treasure them, not dump them when they pass an arbitrary age limit.
[…]
To make matters worse, the State Department’s personnel policies by and large reflect the realities of an earlier era: the rigid State Department system struggles with two career families and with people like Liz Colton who change careers.  The shift in America’s diplomatic focus away from Europe towards sometimes more challenging Asian, African and Middle Eastern environments — not to mention the wars, security threats and strains associated with the War That Must Not Be Named — will ultimately have to transform the way the United States recruits, trains and manages its diplomats.  The bureaucracy is going to have to get better at attracting talent from outside the system and develop much more flexible management methods.  That would be tough in any case; since Congress takes a direct hand in State Department oversight, and writes many of its personnel policies into law, this is going to be hard and its going to take time.
[…]
The Obama administration promised to give us ‘smart diplomacy’.  Smart diplomats would keep Dr. Colton on a job she does brilliantly, especially when times are as critical as they are.

Readers who agree can do three things.

  • First, you can send an email to Dr. Colton thanking her for her service and telling her that the folks back home appreciate and honor Americans willing to put their lives on the line to represent our country abroad.  You can reach her at lizcolton@yahoo.com.  Wish her a happy birthday and let her know she’s not alone.

    [DS Note: Lets help Mr. Mead with this with someecard created especially for Dr. Colton’s birthday].

    someecards.com - Best wishes on your unhappy birthday, Ms. Colton! My mom says

    Click http://some.ly/biMrkF to email this card.

  • Second, you tell the State Department what you think.  You can send an email to Secretary of State Hillary Clinton asking her to make sure Dr. Colton gets a three year tour in Cairo and that procedures are changed to make it easier for people like her to extend on hardship posts past 65; make yourself heard on the State Department’s Twitter and Facebook page.  Let them know that American diplomats willing to stay on past retirement age in hardship posts deserve the country’s thanks and support — and if you think the retirement age should be the same for career officers as for political appointees, tell them that also.
  • Third, you can contact your elected senators and congresspeople to ask them to take an interest in this case.  The State Department cares what Congress thinks.  Senators and representatives care what you think — especially in the run up to elections.

Mr. Mead said a lot more in his piece. Just go and read the whole thing here.

We should note that this case has been in litigation for sometime. And HR, under the office of the Director General of the Foreign Service and Director of Human Resources, which in turn is under the Under Secretary for Management, Patrick Kennedy, picked August 4 just a couple or so weeks before her birthday to tell Dr. Colton that her service has been extended until September 2011. Never mind that the Director General, herself has said that “it will be several years before we are able to close the gap at the midlevels that resulted from restricted hiring in the 1990’s.”

Apparently, that fact has not kept State from chucking out their seasoned diplomats out the door.  Dr. Colton reportedly “will be ending her tour in Karachi on August 31, the end of the month in which she celebrated her 65th birthday.”

So wait, wait — don’t tell me, let’s see if we got this straight —

  • After serving in Karachi for a year and waiting for her fortune cookie, she was notified via email that she is allowed to take on a new assignment for a year. We must point out that Karachi, Pakistan is a 30% hardship post and a 35% danger assignment. It is fair to say that Karachi is not a walk in the park and there is a high possibility that somebody might just give you a deadly whack over there (or USG won’t give you the highest danger pay). Dr. Colton has not only served a year in Karachi, she apparently also requested to serve another year there.  
  • The limited extension granted to Dr. Colton was for the lowest possible tour of one year even if she is only going to Egypt. As far as we know Cairo, Egypt is not in a war zone and tours there are normally 2-3 year assignments. (Although as I read Mr. Mead’s article, I thought, wow, it’s a good thing they are not sending her on TDY assignments here and there from now until 2011!)
  • To “enjoy” her one year extension, she has to move to another country for a year, never mind her requested extension at her current position in Karachi. We note that she is currently serving as Public Affairs Officer; we don’t know if the Information Officer position at US Embassy Cairo is of comparable rank.
  • And she’s supposed to leave post on the last day of the month when she turned 65? State does make you leave at the end of the month in which you turned 65, that is, if you are subjected to MAR. But really — do they have to kick her off like a soccer ball to Cairo the same way, when she was granted a one-year extension from mandatory retirement anyway?  

Holy Molly Macaroni Crap!

Whose great idea was this? Please help me scratch my head, I’m having a hard time understanding this. Thank you!

Can’t they make this any more easy for her like say — have her walk backwards to the airport when she board her plane for Cairo?

I would love to see what her travel authorization looks like!
 
I can agree with Mr. Mead quite easily — this is just abosultely absolutely i-n-s-a-n-e!

Not only insane, it also smells just a tad petty and vindictive.
 
You know — one might get the wrong idea that the somebodies over there are mad as heck at her for taking the State Department to court.
 
Please HR fellas, whatever you do, do NOT/NOT make her pack her own HHE. That would not look good in the press.   

And before I forget — would somebody please tell the Director General that the provinces in Karachi’s consular district are drowning in a flood that has not been seen since 1929? And that putting a new public affairs officer on the ground no matter how talented just when you have an ongoing disaster is negative (-) 45 in the scale of best management practices?

Pardon me? Oh yes, the Director General absolutely wants to hear from you; in the latest issue of State Mag she writes: 

If you have any general comments or suggestions about how to improve management, you can send them to me via unclassified e-mail at dgdirect@state.gov

I hope  you all take up her invitation.

In Mr. Mead’s article, one reader asked “Isn’t an orchestrated campaign on Dr. Colton’s behalf that includes letters and e-mails to Secretary of State Clinton and members of Congress likely to infuriate the State Department bureaucracy even more and make Dr. Colton’s position worse not better?
Um, hey dude, she’s lucky she did not get her email notification within 48 hours of being ordered to decamp to Cairo.  But really, can you imagine Dr. Colton’s position as any worse than where it is right now? What? She lucky she got an extension, she should be grateful? Um, hey this is the government. What’s luck got to do with it?

At the end of the day, as we shake our heads in disbelief at how poorly this is handled, we are left with the regs (or the FAM) that the HR folks can wave at our faces, and a certainly that the bureaucracy has been taken over by artificial non-intelligence.  How else can you explain why a dedicated and talented diplomat who volunteered to hell holes and crappy places gets treated this badly by the State Department?

And the sad part is?  Somebody at the HR shop will probably get a Meritorious Honor Award for taking care of this case. 

 

 


When are you too old to represent the United States abroad?

We have written previously about the ongoing court challenge by American diplomat, Dr. Elizabeth Colton on the mandatory age retirement in the Foreign Service (see Colton v. Clinton, search Bradley v. Vance or “retirement” in this blog). 

Michele Kelemen has a piece yesterday in NPR News asking “when are you too old to represent the U.S. abroad?”  Excerpt below:

That question is on the minds of some Foreign Service officers who are bumping up against a mandatory retirement age.

The age rule doesn’t cover Secretary of State Hillary Clinton or ambassadors. Rather, it’s a cap for midranking officials, already in short supply.

From her post in Karachi, Pakistan, Elizabeth Colton has had a busy summer trying to improve America’s image and deal with devastating floods. She also has a more personal problem on her hands: Tuesday was her 65th birthday, something she would have liked to have celebrated. But in her case, it means the end of a career path she loves.

“It is not like the age [at which] one becomes decrepit,” she says. “In fact, maybe you have more energy, more focused energy.”

Colton seems to thrive on her seven-day-a-week job, having spent her birthday visiting flood victims in camps in Karachi. And, she’s not retiring without a fight. Last year, she filed a lawsuit calling the mandatory retirement age unconstitutional. And she’s been pushing from within — finally getting a one-year extension to work in Cairo.

Like many of the Foreign Service officers running up against this mandatory retirement age, Colton came to the job late in life after other careers, including a job as NPR’s diplomatic correspondent.
[…]
Another former journalist, Diana Page, works at the State Department assisting foreign reporters in Washington. Fluent in Spanish and Portuguese, she has served in — among other places — Guyana, Chile, Bosnia and northeastern Brazil. She’s ready to put in a few more years, but she’s 64.
[…]
Page is not suing but has been trying to get Clinton’s attention at town hall meetings. She has been rehearsing her question.

“My question is, ‘Madame Secretary, as you have said this is a great job, you are clearly enjoying being secretary of state. Do you think it is fair that I have to retire being your age and you don’t?’ ” she says. “You know, no. But I haven’t had a chance to raise it.”

State Department spokesman P.J. Crowley says the department is guided by the Foreign Service Act of 1980, which sets the retirement age but also allows the secretary to give limited extensions. He says the idea is to make sure younger Foreign Service officers have a chance to move up. Crowley says retirees can come back on temporary assignments.
[…]
“We look at creative ways of continuing to use these talented people,” he says. “We have lots of different programs to do that.”
[…]
The American Foreign Service Association, which represents the interests of Foreign Service employees, is calling on the State Department to be more transparent about all of that. Members are still split on the broader issue of retirement, says Susan Johnson, AFSA’s president.
[…]
While the professional association looks into the issue, Colton argues in her lawsuit that age discrimination shouldn’t be tolerated at all — that there should be no age limit. She calls it a matter of civil rights.

Read the whole thing here.

So according to this report, Dr. Colton received a one year extension beyond her 65th birthday, and she’s going to spend it in a marvelous place called Egypt.  Questions, please.  Was that because she has an ongoing litigation against the State Department, or was that extension granted in the public interest, ground for waiving the mandatory retirement?

If this is because of the ongoing litigation …. well, I supposed that would be understandable. No organization would like to be perceived as “unfair” in kicking out a litigant before a case is decided in court. On the other hand, when the original challenge to the MAR was mounted in the 1977 by Hopey Bradley, the case did not get a final decision until two years later. Does this mean that if this case still languishes in court in 2011 that Dr. Colton will get a second waiver from getting chuck out the airlock?

If this one-year extension for an assignment in Cairo is in the public interest –how is that so?

State is sending  a seasoned public diplomacy officer to Egypt for one year instead of the normal tour of duty of three years.  That means instead of relocation expense for one officer in the next three years, State will have relocation expenses for two officers between now and 2011, when Dr. Colton’s tour in Cairo concludes.  How is more expense for an already budget-strapped bureaucracy is really in the public interest?

My understanding of MAR is that the Foreign Service Act allows a waiver of up to five years past 65 but the individual will be locked into his/her current grade with no additional opportunities for career advancement or promotion. But given that there is a real experience gap in the mid-level staffing of the Foreign Service, especially in the Consular and Public Diplomacy career tracks, why is this such a hard nut to crack for HR and the Director General of the Foreign Service?
  
Isn’t there a sensible way of dealing with a case like this?

Is there fear out there that this would set a precedent for more MAR waiver requests from the retiring baby boomers currently in the Service?

Oh, I’d so like to understand the thought process that went into this decision.

We note that the State Department Spokesman, Mr. Crowley said “We have lots of different programs to do that.” “That is, “creative ways of continuing to use these talented people.”

Um, really? Return as an acronym?  As “WAEs” or as they are creatively named, “When Actually Employed” employees — capped at certain number of hours worked, sent on temporary assignments, and paid at lower rates?

So — to repeat the NPR question — when are you too old to represent the U.S. abroad?

It looks like at 6-5. Really! (Dudes, you better have good parachutes!) 

Unless, of course, you have the anti-age defense of dark arts device as Secretary of State, as Chiefs of Mission, as honored political appointees or as members of the Senior Foreign Service.

Or unless, you have taken the State Department to court.

Or unless your service is deemed in the national interest like say — you’re the only one that Hugo Chavez follows and directly messages in Twitter or you have the personal email of Dear Leader in Pyongyang and he routinely zaps you with questions about Hollywood movie stars. 

The Blog of Legal Times has more details about this case and the injunction filed and withdrawn:

“According to court records, on Aug. 4, the State Department told Colton via e-mail that her mandatory retirement had been postponed until Sept. 2011 and that she had approved to serve as the information officer for the U.S. Embassy in Cairo.”

In any case — in all seriousness because this is no laughing matter — here is a related item from the Stanford Center for Longevity on the New Reality of an Older America. Not to scare you but its key findings span economic, social and political implications for Americans of all ages (including you and me):

  • The number of older people (age 65 and over) will double over the next 30 years, from 40 million to 80 million, and the percentage of older people in the population will increase from 13% to 20%.
  • By 2032, there will be more people 65 or older than children under 15.
  • By the time the youngest baby boomers turn 65 in 2029, 1 in 5 Americans will be 65 or older. The percentage of 85-year-olds will grow even faster.
  • If retirement is not delayed there will be fewer and fewer potential workers per retiree. Longer working lives, in contrast, would make use of the most educated older population in the history of the country.
  • Without policy and behavioral changes, the fiscal burden on individual workers and taxpayers will skyrocket.
  • Unless people work longer, the personal financial burden also will increase as people reach older ages.

Read the whole report here.  Something to think about.