[Redacted], Kirby S., 1 Complainant,v.Antony J. Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Feb 23, 2021

Appeal No. 2021001072 (E.E.O.C. Feb. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kirby S.,1 Complainant, v. Antony J. Blinken, Secretary, Department of State, Agency. Appeal No. 2021001072 Agency No. DOS-0283-20 DECISION On November 11, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an October 13, 2020 final Agency decision (FAD) dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND When he was hired by the Agency effective July 11, 2015, as a Security Investigator, Pay Plan 01, Grade 7 (PP-01-07), Complainant, a U.S. citizen, was age 48 or 49. Thereafter, he was competitively selected for reassignment effective May 11, 2008, to Visa Assistant, PP-01-07, reassigned effective October 1, 2008, to Visa Assistant (Developmental Level 1), PP-01-07, promoted to Visa Assistant, PP-01-08 effective July 5, 2009, and reassigned effective May 6, 2012, to Security Investigator, PP-01-08. He was in this position when he filed his equal employment opportunity (EEO) complaint. 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 27, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his age because throughout his employment he was ineligible, due to being 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021001072 2 hired after his 45th birthday, to participate in Part A of the Mission Germany Retirement Benefit Plan/Defined Benefit Plan (DBP) for LE Staff. DBP Part A provided old age, disability, and survivor annuities for non-temporary LE Staff in the plan. All costs were borne by the U.S. Government. Non-temporary LE Staff automatically became participants of DBP Part A following five years of credible Agency service, so long in relevant part that they did not enter U.S. Government service after their 45th birthday. While benefits are paid by a private German insurance company, the legal entitlement to them remained with the U.S. Government. Effective March 31, 2019, Mission Germany replaced DBP with a Defined Contribution Plan (DCP) for LE Staff. With DCP, the U.S. Government contributed 3%, and the employee could contribute up to the legal limit under German law. DCP had no exclusion on participation based on hire age. Eligible participants included those hired after January 25, 2015 (the date, according to Complainant, that Mission Germany suspended DBP for newly hired LE Staff) and those hired before January 25, 2015, who were not eligible to participate in DBP because of insurance underwriting restrictions. LE Staff already in DBP, and those who both had not completed their five-year waiting period to enter DBP and were hired prior to January 25, 2015, were grandfathered into DBP with no changes to its provisions, unless they waived their entitlement to participate in DBP. The Agency dismissed the EEO complaint because Complainant did not initiate EEO counseling within the 45-day time limit of when he reasonably should have suspected discrimination. The Agency found Complainant should have reasonably suspected discrimination upon his employment on July 11, 2005, and again by February 26, 2020. Specifically, the Agency found that after a LE Staff advocacy group raised age discrimination and requested retroactive participation in DBP in meetings with the Deputy Chief of Mission and a Human Resources Officer, post leadership on February 26, 2020, via cable 20 STATE 21066, denied the request. Complainant initiated EEO counseling on July 21, 2020. The Agency dismissed the complaint for failure to state a claim because: (i) as Complainant was ineligible for DPB upon starting his employment on July 11, 2005, his continued ineligibility does not constitute a loss of a term, condition, or privilege of employment, (ii) his EEO complaint arises under the Foreign Service Act, which gives the Agency authority at 22 U.S.C. § 3968 to make payments for LE Staff to a financial institution to finance benefits for them and the EEOC has no jurisdiction over this statute, and (iii) the EEO complaint constitutes a collateral attack on an internal grievance process Complainant used that concluded with the denial referenced above via cable 20 STATE 21066. The instant appeal followed. On appeal, Complainant argues that the FAD should be reversed. 2021001072 3 ANALYSIS AND FINDINGS Timeliness An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). The Agency did not analyze the complaint under the Lilly Ledbetter Fair Pay Act, of 2009, Pub. L. No. 111-2, 123 Stat 5. The Act has a retroactive effective date of May 28, 2007, and applies to all claims of compensation discrimination pending on or after the effective date under Title VII of the Civil Rights Act, the Rehabilitation Act, and the ADEA. With respect to Title VII claims, Section 3 of the Act provides that: ...an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or part from such a decision or other practice.2 The Ledbetter Act covers “wages, benefits, or other compensation” which includes contributions to a pension plan. Tomlinson v. El Paso Corp., 107 Fair Empl. Prac. Cas. (BNA) 194, 2009 WL 2766718 (D. Colo. 2009). Complainant’s EEO complaint regards wages and benefits in the form of accrual of pension benefits, not pension distribution payments. Id. Accordingly, the Ledbetter Act applies, and Complainant’s claim is timely from May 28, 2007, onward.3 2 The EEOC has explained this language also applies to compensation discrimination claims brought under the ADEA. See EEOC Compliance Manual, Vol. 2, Sec. 2, Chap. IV (Threshold Issues) at C.4, OLC Control No. EEOC-CVG-2000-2 (May 12, 2000). We have applied this language to cases solely alleging a violation of the ADEA. See, e.g., Hubbard v. Veterans Affairs, EEOC Appeal No. 0120121012 (May 15, 2012). 3 Section 2(4) of the Ledbetter Act provides that “[n]othing in this Act is intended to change current law treatment of when pension distributions are considered paid.” Accordingly, while the Act applies to wage based claims, it does not apply to pension distribution payments. Brakeall v. EPA, EEOC Appeal No. 0120093805 (Nov. 30, 2010). Given that Complainant filed his EEO complaint when he was still in active service, this case does not regard pension distributions. Tomlinson. Since contributions to a pension plan for benefit accrual is a form of wages, the Ledbetter Act applies. When Complainant should have formed a reasonable suspicion of discrimination is not determinative. 2021001072 4 Failure to state a claim EEOC Compliance Manual, Vol. 2, Sec. 3 - Employee Benefits, at Chap. V (Pensions) at A, OLC Control No. EEOC-CVG-2001-1 (Oct. 3, 2000) explains as follows: An employer may not exclude an employee from participation in a pension plan because the employee is close to the plan's normal retirement age when hired. EXAMPLE - Employer D's pension plan has a normal retirement age of 55 but excludes those hired within five years of the plan's normal retirement age or beyond that age - that is, those hired when they are 50 or above - from participation in the plan. CP, who was hired at age 51 and was denied the opportunity to participate in the plan, files an age discrimination charge. Employer D's exclusion violates the ADEA. Because normal retirement age is, by definition, age-based, any exclusion of those who are five years away from normal retirement age is also age-based. Such an exclusion thus constitutes facial age discrimination…. [Footnote] 47. See Quinones v. City of Evanston, 58 F.3d 275 (7th Cir. 1995) (invalidating plan that denied those hired after age 35 the opportunity to participate in the pension plan)…. We disagree with the Agency’s finding that because Complainant was ineligible for DPB upon starting his employment on July 11, 2005, his continued ineligibility does not constitute a loss of a term, condition, or privilege of employment so his complaint fails to state a claim. Complainant alleged that but for the Agency’s violation of the ADEA, he would have been eligible, resulting in a loss of a term, condition, or privilege of employment. Likewise, we disagree with the Agency’s premise that Complainant’s EEO complaint arises under the Foreign Service Act, and hence fails to state a claim. Complainant’s EEO complaint arises under the ADEA, not the Foreign Services Act. While the EEOC does not have jurisdiction over the Federal Services Act, we do over the ADEA. In Miller v. Clinton [Dep’t of State], 687 F.3d 1332, at 1345 (D.C. Cir. 2011) the Court ruled that the Foreign Services Act, at 22 U.S.C. § 3968 did not remove the protections of the ADEA from LE Staff employees of the federal government in Paris, France, who are U.S. citizens. We also disagree with the Agency’s finding that Complainant’s EEO complaint fails to state a claim because it constitutes a collateral attack on a grievance process. As an initial matter, the Agency’s finding that Complainant participated in the grievance process is based on his writing in his EEO complaint that an advocacy group for LE Staff began meeting in November 2019 with the Deputy Chief of Mission and a Human Resources Officer to request retroactive membership in DBP, and the request was denied by cable on February 26, 2020. 2021001072 5 There is no documentation in the record substantiating that Complainant participated in this process and that it was a grievance process. Even assuming this was so, the record does not show that it was the type of proceeding or process for which the collateral attack doctrine applies. The FAD is REVERSED. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). 2021001072 6 If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 2021001072 7 Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 23, 2021 Date