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.
Note: Depending on the browser you’re using, the FSGB cases may not be available to read online; each record may need to be downloaded to be accessible. With Firefox browser, however, you may select “open with Firefox” if you want to read the case file, or save the file to your computer. Please use the search button here to locate specific FSGB records.
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Permission to Speak Freely: End the Shame and Stigma

13 Going on 14 — GFM: https://gofund.me/32671a27

According to the CDC, suicide is the 10th leading cause of death in the United States. It was responsible for more than 47,500 deaths in 2019. In 2019, 12 million American adults seriously thought about suicide, 3.5 million made a plan, and 1.4 million attempted suicide.
Secretary Antony J. Blinken at a Virtual Town Hall with U.S. Mission Nigeria and U.S. Embassy Nairobi Employees and Family Members, April 9, 2021:

“We had the recent news of the death of a member of our State Department family on temporary assignment in Kenya, which is deeply saddening and distressing, and a reminder of how important it is for us to be there for each other and to seek help if we need it without shame.  The global authorized departure policy meant that many of you were separated and isolated from your family members as well as from each other, and Kenya is dealing with heightened security concerns.  In Lagos and Abuja, your movements outside the city centers are restricted, now even more so.”

This is the closest the secretary of state come to acknowledging the reported suicide of a State Department employee in Kenya (see US Embassy Kenya: USG Employee Found Deceased at a Nairobi Hotel). We understand that a diplomatic courier assigned at a post in Germany, temporarily stayed two weeks at the Tribe Hotel in Nairobi, Kenya, prior to his next permanent assignment in Nairobi. He was found deceased at the hotel on April 7, 2021.
We don’t know how people can “seek help if we need it without shame” if the top official could not even give what happened in Kenya a name. Somebody died. True. It was “saddening and distressing”.  True. But we can help by acknowledging what happened there has a name and it has its own realities. A struggle in a dark world of  despair and hopelessness that is as real to those who suffer as the great blue skies you and I live in.
The fight to make it every day, to keep going despite the pain is a valiant battle. We need to remember that the fight is often painful, solitary, and seemingly hopeless. To get rid of shame and end the stigma, we need to talk about this in the open, not in whispers, not by skirting its name. But it has to start at the top. Otherwise, as a blog pal once asked, What FSO is going to risk losing their security clearance by going to MED and saying they are thinking about suicide?” 
Read: 5 Common Myths About Suicide Debunked
Warning Signs and Risk Factors of Suicide
If you’re thinking about suicide, are worried about a friend or loved one, or would like emotional support, the Lifeline network is available 24/7 across the United States. Call 1-800-273-8255.
If you are overseas, please seek help by calling or visiting the health unit or call the Military Crisis Line  or a local Suicide Hotline .

 

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Officially In: John B. Emerson — From Capital Group to the Federal Republic of Germany

—By Domani Spero

 

On June 14, President Obama announced his intent to nominate John B. Emerson to be the next Ambassador to the Federal Republic of Germany. The WH released the following brief bio:

John B. Emerson is President of Private Client Services for the Capital Group Companies, a global investment management firm.  From 1994 to 1997, Mr. Emerson served as Deputy Assistant to the President and Deputy Director of Intergovernmental Affairs at the White House.  From 1993 to 1994, he was Deputy Assistant to the President and Deputy Director of Presidential Personnel at the White House.  From 1987 to 1992, he was the Los Angeles Chief Deputy City Attorney.  He began his career in 1978 as an attorney with Manatt, Phelps, Rothenberg, and Tunney in Los Angeles.  Mr. Emerson is a Member of the Advisory Committee for Trade Policy and Negotiations, a position he has held since his appointment in 2010.   He served as Chairman of the LA Mayor’s Council on the Arts from 2004 to 2005.

Mr. Emerson received an A.B. from Hamilton College and a J.D. from the University of Chicago.

OpenSecrets.org listed Mr. Emerson as one of President Obama’s bundlers who raiser over $500,000 in the 2012 campaign. According to Roll Call, Mr. Emerson was also the 2012 co-chairman of the DNC’s Southern California finance committee.  The couple’s bio via PCIP says that Mr. Emerson’s wife, Kimberly Marteau Emerson is an attorney and civic leader who served in the Clinton Administration as Director of Public Liaison for the U.S.  Information Agency (USIA), where she was the domestic spokesperson, and traveled as the senior USIA political liaison on President Clinton’s overseas trips to the Far East, Europe, Russia and the former Soviet Union.

If confirmed, Mr. Emerson would replace Philip D. Murphy, a former Goldman Sachs executive and former National Finance Chair of the Democratic National Committee who was appointed to the US Embassy Berlin in September 2009.  According to the AFSA statistics, non-career ambassadors make up 70.6% of all ambassadorial appointments to Germany since 1960

(‘_’)

 

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June 14, 2013 | President Obama Announces More Key Administration Posts