UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

ELIZABETH COLTON, ) 

Plaintiff, 

v. 

) 

) 

) 

) Civil Case No. 09-1772 (RJL) 

) 

HILLARY RODHAM CLINTON, ) 

) 

Defendant. 

MEMORANDUM ~ OPINION 

(September 2# 2010) [#13, #19] 

Plaintiff, Elizabeth Colton ("Colton"), brings this action against Hillary Rodham 

Clinton in her official capacity of Secretary of State (the "defendant" or the "State 

Department"), alleging age discrimination and retaliation in violation of the Age 

Discrimination in Employment Act ("ADEA"), 29 U.S.C. 621 et seq., as well as an equal 

protection challenge under the Fifth and Fourteenth Amendments of the u.S. 

Constitution. Before the Court are defendant's Motion to Dismiss, or in the Alternative, 

for Summary Judgment and plaintiffs Rule 56(f) Motion for Discovery. For the 

following reasons, the defendant's Motion to Dismiss is GRANTED, and plaintiffs Rule 

56(f) Motion for Discovery is DENIED AS MOOT. 

BACKGROUND 

Plaintiff is a 65-year-old member of the Foreign Service. 1 st Am. Compi. 

("CompI.") ~ 11. The Foreign Service is the diplomatic corps of the u.S. government 

under the control of the State Department, whose employees represent the United States 

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abroad and assist U.S. citizens overseas. See id. ~ 2. Congress has provided certain 

personnel policies for the Foreign Service separate from the general Civil Service, 

including a mandatory retirement age. See id. ~~ 5, 13. Under the Foreign Service Act of 

1980, all Foreign Service officers "shall be retired from the Service" at the end of the 

month in which they reach age 65. 22 U.S.c. § 4052(a)(1); see Compi. ~ 5. That 

provision of the Foreign Service Act also confers discretion on the Secretary of State to 

make exceptions to the requirement in particular instances, if it is in the "public interest" 

to do so. 22 U.S.c. § 4052(b)(2); see Compi. ~ 21. 

Colton joined the Foreign Service in 2000, when she was 54 years old. Compi. 

~~ 28, 31. At that time, the State Department informed her that her mandatory retirement 

date was August 31, 2010. 1 Id. ~~ 34, 56. According to a State Department standard 

operating procedure quoted in plaintiffs First Amended Complaint, employees facing 

mandatory retirement may be assigned to serve overseas if those employees "can be 

expected to complete at least 24 months of such an assignment" unless the post carries a 

one-year tour of duty or has been designated "Historically Difficult to Staff." Id. ~ 57 

(quoting Foreign Service Standard Operating Procedure D-O 1 ("SOP D-O 1 ")). On or 

about October 17,2008, and despite knowing about this procedure and the mandatory 

retirement age, Colton submitted a bid for a two-year assignment with the U.S. Embassy 

in Algiers that began in Mayor June 2009. Id. ~~ 50-52. As a result, the Algiers post 

Colton turned 65 in August 2010 and, according to the terms of the Foreign Service Act, 

would have had to retire on August 31, 2010. See CompI. ~ 56; 22 U.S.c. § 4052(a)(1). On 

August 3, 2010, defendant granted plaintiff a one-year extension of service, allowing her to serve 

as Information Officer at the U.S Embassy in Cairo, Egypt. See Notice, Aug. 6, 2010 [#36]. 

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would have required her to serve until Mayor June 2011, several months past her 

mandatory retirement date of August 31,2010. Id. ~ 51. On November 3, 2008, plaintiff 

nevertheless accepted a "handshake offer" for the Algiers assignment, apparently without 

disclosing her mandatory retirement date. Id. ~~ 54-55. 

After officials within the State Department realized that Colton might not be 

available to serve the full two years in the Algerian post because of the mandatory 

retirement age, they notified her that there may be a problem with the assignment. Id. ~~ 

55-57. Plaintiff communicated her willingness to serve the full two-year tour of duty, 

"notwithstanding" the statutory requirement that she retire at age 65. Id. ~ 57. On 

November 20, 2008, Colton was told that the handshake offer had been withdrawn 

because the Algiers position was inconsistent with the mandatory retirement provision 

and SOP D-01. Id. ~~ 58-61. Plaintiff then made a number of requests for an extension 

of service that would allow her to serve beyond age 65. Id. ~~ 66, 69, 75. At that time, 

the Secretary of State did not exercise her discretion to grant Colton such an extension. 

See id. ~~ 72-75. Eventually, plaintiff instead obtained a one-year assignment at the U.S. 

Consulate in Karachi, Pakistan, beginning in July 2009. Id. ~ 82. 

On January 15,2009, plaintiff filed a Notice ofIntent to Sue with the EEOC, 

alleging that the State Department's enforcement of the mandatory retirement age 

amounted to age discrimination in violation of the ADEA. Id. ~ 68. She amended her 

notice on April 3, 2009. Id. ~ 71. Colton filed the instant action on September 18, 2009, 

asserting age discrimination (Count I) and retaliation (Count III) in violation of the 

ADEA and an equal protection challenge to the mandatory retirement provision under the 

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U.S. Constitution (Count II). On October 22,2009, plaintiff filed a First Amended 

Complaint, alleging further that the State Department had denied her a promotion in 

October 2009, and that it did so for discriminatory and retaliatory reasons. Id. ~ 88. 

Plaintiff seeks damages and injunctive relief. 

ANALYSIS 

I. Standard of Review 

Defendant moves to dismiss for "failure to state a claim upon which relief can be 

granted." Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a plaintiffs 

"[ f]actual allegations must be enough to raise a right to relief above the speculative level, 

on the assumption that all the allegations in the complaint are true (even if doubtful in 

fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted); see also 

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (stating that if a court has determined that 

a plaintiff has asserted "well-pleaded factual allegations," the court "should assume their 

veracity and then determine whether they plausibly give rise to an entitlement to relief'). 

When a Court is resolving a motion to dismiss, "the complaint is construed liberally in 

the plaintiff['s] favor," and the plaintiff is granted "the benefit of all inferences that can 

be derived from the facts alleged." Kowal v. MCI Commc 'ns Corp., 16 F.3d 1271, 1276 

(D.C. Cir. 1994)). At the same time, the Court need not accept the inferences drawn by a 

plaintiff "if such inferences are unsupported by the facts set out in the complaint," nor 

must it "accept legal conclusions cast in the form of factual allegations." Id. Defendant 

here moves alternatively for summary judgment, which need not be considered when the 

Court disposes of the case pursuant to a motion to dismiss. 

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II. ADEA Claims 

As an initial matter, the parties dispute whether plaintiff provided sufficient notice 

of her intent to sue with respect to: (1) her retaliation claim as a whole; and (2) her 

allegation that the State Department's failure to promote her in October 2009 was an 

additional act of discrimination and retaliation. The ADEA provides two avenues for 

federal employees to assert claims. See 29 U.S.C. § 633a. The first, which the plaintiff 

did not pursue, is through exhaustion of administrative remedies followed by civil suit, if 

the case is not resolved administratively. The second, which Colton does rely on, is 

accomplished by filing a notice of intent to sue with the EEOC within 180 days of the 

"alleged unlawful practice" and waiting thirty days before filing a civil action. 29 U.S.C. 

§ 633a(d); see also Rann v. Chao, 346 F.3d 192, 195 (D.C. Cir. 2003) (citing the "express 

prerequisites" in 29 U.S.C. § 633a(d)). 

Here, Colton failed to give notice of any intent to sue with respect to her 

retaliation claim. Plaintiff first filed a notice of intent to sue with the EEOC on January 

15,2009, and filed an amended notice on April 3, 2009. CompI. ~~ 68,71. Neither 

notice discloses any intent to bring a retaliation claim, or indicates that Colton was 

subjected to any retaliatory behavior for engaging in protected activity, even though some 

of the alleged retaliation occurred prior to the notices being filed. See, e.g., CompI. ~ 79. 

Rather, the notices focused entirely on plaintiff's failure to obtain positions as a result of 

the mandatory retirement age, decisions which plaintiff characterized as "based solely on 

her age" and as "age discrimination." See Notice of Intent to Sue, Def.'s Ex. A, ~~ 4,6, 

5 
9; Am. Notice of Intent to Sue, Def.'s Ex. A, ~~ 4,6,11. 2 Nor can Colton excuse the lack 

of notice by asserting that her retaliation claim grows out of, or is sufficiently related to, 

the allegations of discrimination in her April notice. See Hernandez v. Gutierrez, 656 F. 

Supp. 2d 101, 104-05 (D.D.C. 2009) (citing Nat 'I R.R. Passenger Corp. v. Morgan, 536 

u.S. 101 (2002)). Accordingly, Colton 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. 

Similarly, plaintiff has failed to file notice of intent to sue with respect to the 

allegedly discriminatory failure to promote, which plaintiff discovered on October 10, 

2009. See CompI. ~ 88. 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 

2 A court may consider documents incorporated into the complaint by reference and 

matters of which a court may take judicial notice without converting a motion to dismiss into one 

for summary judgment. See Tellabs, Inc. v. Makar Issues & Rights, Ltd., 551 U.S. 308, 322 

(2007). 

6 
the agency's decision not to promote her, it must also be dismissed. See Rann, 346 F.3d 

at 199; Macellaro v. Goldman, 643 F.2d 813,816 (D.C. Cir. 1980). 

As to the remainder of the allegations forming the basis of Colton's age 

discrimination claim, the parties disagree on what statute of limitations should apply in an 

ADEA case where, as here, a plaintiff chooses to bypass the administrative process and 

proceed directly in this Court following notice of intent to sue. Our Circuit has not 

specifically addressed this situation, and it is unnecessary for this Court to do so now. 

Regardless of which limitations period applies, Colton's ADEA claim of age 

discrimination fails as a matter of law and must be dismissed for that reason. How so? 

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). 

In Strawberry, the plaintiff attempted to avoid the mandatory retirement provision 

of the Foreign Service Act, in part by requesting a waiver from the Secretary of State of 

7 
the mandatory retirement age under § 4052(b). That request was denied, and the 

Strawberry plaintiff sued the Secretary of State for age discrimination under the ADEA. 

Id. at 945. The district court rejected his claim, finding that the "mandatory retirement of 

Foreign Service employees[] must be given full force and effect" and that "[t]he ADEA's 

general prohibition of age discrimination cannot be read to prevent the implementation of 

the mandatory retirement provisions of the Foreign Service Act." Id. (quoting the district 

court's memorandum opinion). In a summary affirmance, our Circuit agreed. Id. at 947. 

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 

8 
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. See Strawberry, 111 F.3d at 947. 

Colton's attempts to distinguish Strawberry are, to say the least, unpersuasive. 

Plaintiff argues that she "is not challenging that being forced to retire at age 65 years old 

constitutes per se age discrimination under the ADEA ... Rather, plaintiff asserts that 

Defendant's denial of the Algiers position simply because of her age constitutes 

actionable age discrimination under the ADEA." PI. 's Opp'n at 24. 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 

9 
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. See 22 U.S.c. § 4052(b )(2). In fact, the plaintiff in 

Strawberry was also denied such an extension, and our Circuit Court nonetheless rejected 

his claim of age discrimination. Strawberry, 111 F.3d at 945. Indeed, such a result 

makes good sense. If a plaintiff could successfully claim age discrimination based on the 

defendant's refusal to grant a discretionary waiver to the mandatory retirement age, the 

mandatory retirement provision would be rendered, in essence, unenforceable. Nor was 

it required of the State Department, as asserted for the first time in plaintiff s Opposition, 

to create a new assignment just to accommodate Colton's impending mandatory 

retirement. See Pl.'s Opp'n 26. In the end, plaintiffs allegations amount to nothing 

more than a blatant attempt to circumvent the mandatory retirement provision, 

enforcement of which is not actionable under the ADEA. Accordingly, the remainder of 

Count I must be dismissed. 

III. Equal Protection Claim 

Plaintiffs equal protection challenge to the mandatory retirement age fairs no 

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better than her ADEA claims. 3 In Vance v. Bradley, 440 U.S. 93 (1979), the Supreme 

Court held that the mandatory retirement provision of the Foreign Service Act, which at 

that time required retirement at age 60, was rationally related to a legitimate state interest: 

"to recruit and train and to assure the professional competence, as well as the mental and 

physical reliability, of the corps of public servants who hold positions critical to our 

foreign relations, who more often than not serve overseas, frequently under difficult and 

demanding conditions, and who must be ready for such assignments at any time." Id. at 

97. 4 As such, the Supreme Court accepted the Secretary of State's rationale for how the 

mandatory retirement provision was "an integral part of the personnel policies of the 

Service designed to create predictable promotion opportunities and thus spur morale and 

stimulate superior performance in the ranks" and to "remov[ e] from the Service those 

who are sufficiently old that they may be less equipped or less ready than younger 

persons to face the rigors of overseas duty in the Foreign Service." Id. at 98. 

Furthermore, Bradley is consistent with decades of equal protection jurisprudence 

rejecting similar age-related challenges, and it squarely forecloses plaintiffs challenge 

here. See Kimel, 528 U.S. at 84 (stating that the government "may rely on age as a proxy 

for other qualities, abilities, or characteristics that are relevant to the State's legitimate 

interests" and "[t]hat age proves to be an inaccurate proxy in any individual case is 

3 Although the Fifth Amendment does not contain an equal protection clause, the Supreme 

Court has held that the due process clause of the Fifth Amendment contains an equal protection 

component applying to the federal government. See Bolling v. Sharpe, 347 U.S. 497,499 

(1954); Brandon v. Dist. of Columbia Bd. of Parole, 823 F.2d 644,650 (D.C. Cir. 1987). 

4 The parties do not dispute that rational basis review applies in this case. See Bradley, 440 

U.S. at 109. 

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irrelevant"); Gregory v. Ashcroft, 501 U.S. 452, 471-72 (1991) (rejecting equal protection 

challenge to state law provision requiring state judges to retire at 70); Massachusetts Bd. 

ofRetirementv. Murgia, 427 U.S. 307, 313-14 (1979) (finding mandatory retirement of 

police officers at age 50 to meet the requirements of the equal protection clause). 

Colton's attempt to avoid Bradley by arguing that "conditions have changed" in 

the thirty years since that case was decided fails for several reasons. First, Congress, 

following the Bradley decision, has already taken into account the changed conditions 

plaintiff references, such as advancements in technology and medicine, and raised the 

mandatory retirement age from 60 in the Foreign Service Act of 1946 to 65 in the Foreign 

Service Act of 1980. Second, plaintiffs suggestion that the 1980 statute is outdated 

because it is thirty years old ignores the fact that the 1946 version upheld in Bradley was 

both more restrictive, in that it required retirement at 60 rather than 65, and itself thirtyfour years old at the time of that decision. Finally, 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. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). To that end, 

although the mandatory retirement provision has been amended since Bradley, the 

primary difference between the two versions is that the current version is less restrictive. 

Nothing about Congress's decision to raise the retirement age calls into question the 

holding in Bradley that having a mandatory retirement provision for Foreign Service 

12 
officers is rationally related to a legitimate state interest. 5 Therefore, as Colton has failed 

to state a claim upon which relief may be granted for her equal protection challenge, 

Count II must also be dismissed. 

CONCLUSION 

For the foregoing reasons, the defendant's Motion to Dismiss is GRANTED, and 

plaintiffs Rule 56(f) Motion for Discovery is DENIED AS MOOT. An Order consistent 

with this decision accompanies this Memorandum Opinion. 

, 

United States District Judge 

Plaintiffs remaining arguments are insufficient to establish a viable equal protection 

challenge. For example, Bradley forecloses Colton's argument that other employees performing 

similar functions, as well as temporary civil service appointments, are permitted to serve past 65. 

See Bradley, 440 U.S. at 101-102 ("Congress plainly intended to create a relatively small, 

homogeneous, and particularly able corps of Foreign Service officers. It was thought that the 

tasks performed by this corps were sufficiently demanding and important to the Nation that it 

was necessary to pursue more rigorous policies to ensure excellence then those generally 

applicable in the Government."). Similarly unavailing is plaintiffs argument that the provision, 

in conjunction with another earlier alleged policy, has had a "disparate impact" on her. See, e.g., 

Harris v. McRae, 448 U.S. 297, 323 & n.26 (1980) (stating that the Equal Protection Clause only 

guards against "purposeful discrimination," and not disparate impact). Finally, her argument that 

the defendant enforces the mandatory retirement provision in an unconstitutionally 

discriminatory manner does not even implicate rational basis review under the Equal Protection 

Clause. See, e.g., Engquist v. Oregon Dep '( of Agric., 128 S. Ct. 2146, 2155 (2008). 

13