### UNITED STATES DISTRICT COURT FORTHE 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 ofSecretary ofState (the "defendant" or the "State Department"), alleging age discrimination and retaliation in violation ofthe Age Discrimination in EmploymentAct ("ADEA"), 29 U.S.C. 621 

### etseq., as well as an equal protection challenge under the Fifth and Fourteenth Amendments ofthe 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. Forthe following reasons, the defendant's Motion to Dismiss is GRANTED, and plaintiffs Rule 56(f) Motion for Discovery is DENIED AS MOOT. 

### BACKGROUND Plaintiffis a 65-year-old member ofthe Foreign Service. 1 st Am. Compi. ("CompI.")**~** 

### 11. The Foreign Service is the diplomatic corps ofthe u.S. government under the control ofthe State Department, whose employees represent the United States

1abroad and assist U.S. citizens overseas. See id.**~** 2. Congress hasprovided certain personnel policies for the Foreign Service separate from the general Civil Service, including a mandatory retirement age. See id.**~~** 5, 13. Underthe Foreign Service Act of 1980, all Foreign Service officers "shall be retired from the Service" at the end ofthe month in whichthey reach age 65. 22 U.S.c. § 4052(a)(1); see Compi.**~** 5. That provision ofthe Foreign Service Act also confers discretion onthe Secretary ofState to make exceptions to the requirement in particular instances, ifit is in the "public interest" to do so. 22 U.S.c. § 4052(b)(2); see Compi.**~** 21. Coltonjoinedthe Foreign Service in 2000, when she was 54 years old. Compi.**~~** 28, 31. Atthattime, the State Department informedherthathermandatoryretirement date was August 31, 2010. 1 Id.

### ~~ 34, 56. According to a State Department standard operating procedure quoted in plaintiffsFirst Amended Complaint, employees facing mandatory retirement may be assigned to serve overseas ifthose employees "canbe expected to complete at least 24 months ofsuch an assignment" unless the post carries a one-yeartourofduty orhas been designated "Historically Difficultto Staff." Id.**~** 57 (quoting Foreign Service Standard OperatingProcedure 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 MayorJune 2009. Id.**~~** 50-52. As a result, the Algiers post

Coltonturned 65 in August 2010 and, according to the terms ofthe 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 plaintiffa one-year extension ofservice, allowing her to serve as Information Officer at the U.S Embassy in Cairo, Egypt. See Notice, Aug. 6, 2010 [#36]. 2would have required herto serve until MayorJune 2011, several months pasther mandatory retirement date ofAugust 31,2010. Id.**~** 51. OnNovember 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 Departmentrealized that Colton might not be available to serve the full two years in the Algerian post because ofthe mandatory retirement age, they notified her that there may be a problem withthe assignment. Id.**~~** 55-57. Plaintiffcommunicatedherwillingness to serve the full two-year tour ofduty, "notwithstanding" the statutory requirement that she retire at age 65. 

### Id.**~** 57. On November 20, 2008, Colton was told that the handshake offerhad been withdrawn because the Algiers position was inconsistent with the mandatory retirement provision and SOP D-01. Id.**~~** 58-61. Plaintiffthen made a number ofrequests for an extension ofservice that would allow herto serve beyond age 65. Id.**~~** 66, 69, 75. Atthattime, the Secretary ofState did not exercise her discretion to grant Colton such an extension. See id.**~~** 72-75. Eventually, plaintiffinstead obtained a one-year assignment at the U.S. Consulate in Karachi, Pakistan, beginning in July 2009. Id.**~** 82. On January 15,2009,plaintifffiled a Notice ofIntentto Sue with the EEOC, alleging thatthe State Department's enforcement ofthe mandatory retirement age amounted to age discrimination in violation ofthe 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 ofthe ADEA and an equal protection challenge to the mandatory retirementprovision underthe

3

### U.S. Constitution (Count II). On October 22,2009, plaintifffiled a First Amended Complaint, alleging further that the State Departmenthad denied her a promotion in October 2009, and that it did so for discriminatory and retaliatory reasons. Id.**~** 

### 88. Plaintiffseeks damages and injunctive relief. ANALYSIS I. 

### Standard ofReview Defendant moves to dismiss for "failureto state a claim upon which reliefcan 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 reliefabove the speculative level,

on the assumption that all the allegations in the complaint are true (even ifdoubtful in fact)." BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted); see also Ashcroftv. Iqbal, 129 S. Ct. 1937, 1950 (2009) (stating that ifa court has determined that

a plaintiffhas 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 plaintiffis granted "the benefit ofall 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 acceptthe inferences drawn by a plaintiff"ifsuch inferences are unsupported by the facts set out in the complaint," nor must it "accept legal conclusions cast in the form offactual allegations." Id. 

### Defendant here moves alternatively for summaryjudgment, which need not be considered when the Court disposes ofthe case pursuant to a motion to dismiss.

4II. ADEA Claims As an initial matter, the parties dispute whetherplaintiffprovided sufficient notice ofher intentto 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 ofdiscrimination and retaliation. The ADEAprovides 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 ofadministrative 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 ofintentto sue withthe EEOC within 180 days ofthe "allegedunlawful 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 ofany intentto sue with respect to her retaliation claim. Plaintifffirst filed a notice ofintentto 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 ofthe allegedretaliation occurredpriorto the notices being filed. See, e.g., CompI.**~** 79. Rather, the notices focused entirely on plaintiff's failure to obtainpositions as a result of the mandatory retirement age, decisions which plaintiffcharacterized as "based solely on her age" and as "age discrimination." See Notice ofIntent to Sue, Def.'s Ex. A,**~~** 4,6,

59; Am. Notice ofIntent to Sue, Def.'sEx. A,**~~** 4,6,11. 2 Norcan Colton excuse the lack ofnotice by asserting that her retaliation claim grows out of, or is sufficiently related to, the allegations ofdiscrimination in herApril notice. 

### See Hernandez v. 

### Gutierrez, 656 F. Supp. 2d 101, 104-05 (D.D.C. 2009) (citing

### Nat 'IR.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, herretaliation claim in Count III ofthe Complaint must be dismissed in its entirety. Similarly, plaintiffhas failed to file notice ofintentto sue with respect to the allegedly discriminatory failure to promote, which plaintiffdiscovered on October 10, 

### 2009. See CompI.**~** 88. The failure to promote was included as an additional act of discrimination and retaliation in herFirstAmended Complaint filed on October 22, 2009. 

### See id. As discussed above, the plain language of§ 633a(d) requires plaintiffto have filed notice ofher 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 ofthe purported failure topromote 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 Acourt may consider documents incorporated into the complaint by reference and matters ofwhich a court may takejudicial notice without converting amotion to dismiss into one for summaryjudgment. See Tellabs, Inc. v. Makar Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). 6the 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 ofthe allegations forming the basis ofColton's age discrimination claim, the parties disagree on what statute oflimitations should apply in an ADEA case where, as here, a plaintiffchooses tobypass the administrative process and proceed directly in this Court following notice ofintentto sue. Our Circuithas not specifically addressed this situation, and it is unnecessary for this Court to do so now. Regardless ofwhich limitations period applies, Colton's ADEA claim ofage discrimination fails as a matter oflaw and mustbe dismissed for that reason. How so? In Count I, plaintiffclaims thatthe State Department discriminated against her on the basis ofage by: (1) denying herthe two-yearposition in Algiers; (2) failing to assign herto a position "equivalent" to the Algiers position; (3) denying her requests for an extension ofservice under 22 U.S.C. § 4052(b)(2); and (4) failing to promote her in October 2009. 

### See CompI.**~** 91. With the exception ofthe failure to promote allegation, which is notproperly before this Court as explained above, plaintiffis, in effect, asserting that the State Department discriminated against herby complying with and enforcing the statutorily mandated age of65. This claim must fail as a matter oflaw, however, because

our Circuithas already held that the mandatory retirementprovision Colton is challenginghere is a valid exceptionto the ADEA. 

### See Strawberry v. 

### Albright, 111 F.3d 943,947 (D.C. Cir. 1997). In 

### Strawberry, the plaintiffattempted to avoid the mandatory retirement provision ofthe Foreign Service Act, in part by requesting a waiver from the Secretary ofState of

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

### Strawberryplaintiffsued the Secretary ofState for age discrimination underthe ADEA. 

### Id. at 945. The district court rejected his claim, finding that the "mandatoryretirement of Foreign Service employees[] must be given full force and effect" and that "[t]heADEA's general prohibition ofage discrimination cannot be readto preventthe implementation of the mandatory retirementprovisions ofthe 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 ofthe mandatory retirement age in the Foreign Service Act of 1980-whichraised the mandatory retirement age from 60 to 65-afterthe ADEA was made applicable to federal employees reflected Congressional judgmentthat "the ADEA's general provision on age discrimination does not prohibit enforcement ofthe mandatory retirementprovisions." 

### Id.; see also Kimel v. 

### Florida Bd. of Regents, 528 U.S. 62, 68-69 (2000) ("Underthe current ADEA, mandatory age limits for law enforcement officers and firefighters-at federal, state, and local levels-are exempted from the statute's coverage"); 

### Stewartv. 

### Smith, 673 F.2d485,492 (D.C. Cir. 1982) (finding maximum age rule for federal law enforcement officers to be an exception to the ADEA). 

### In light ofthis controlling authority, plaintiff's challenge to the enforcement ofthe mandatory retirementprovision must be dismissed. Her allegations ofdiscrimination based upon the failure to assign herto the Algiers position simply reflecther disagreementwith the defendant's implementation and enforcement ofthe mandatory retirementprovision. Plaintiffadmits that the Algiers position or, for that matter, any 8

### other two-yeartour ofduty beginning in MayorJune 2009 would have required her to

serve nine orten months past her mandatory retirement age. See Compl.**~** 

### 51. Colton also admits that she did not view any ofthe 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 ofthe mandatory retirement provision ofthe Foreign Service Act and, therefore, is not actionable underthe ADEA. See Strawberry, 111 F.3d at 947. Colton's attempts to distinguish Strawberry are, to say the least, unpersuasive. Plaintiffargues that she "is not challenging that being forced to retire at age 65 years old constitutesperse age discrimination under the ADEA

... Rather, plaintiffasserts that Defendant's denial ofthe Algiers position simply because ofher 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/themandatory retirementprovision, which our Circuit has already heldto 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, ifaccepted, would subject the defendant to suit for all actions taken prior to the actual date that an employee must retire underthe Foreign Service Act, even whenthe challenged acts are taken to implement or enforce the requirements ofthe mandatory retirementprovision. Such a result is, ofcourse, nonsensical. Simply put, it is irrelevant whetherthe challenged acts occurred before or after plaintiffs mandatory retirement, and it is ofno
9

### moment when the suit is brought. The only pertinent question is whether a challenged act

was undertaken to implement or enforce the provision. Ifso, 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 ofState's refusal to grant her an extension pursuant to § 4052(d) was a discriminatory act is unavailing. Although the mandatory retirementprovision grants the Secretary the discretion to retain aperson for up to five years pastthe mandatory retirement age ifin the "public interest," there is no requirement that the Secretary do so. See 22 U.S.c. § 4052(b)(2). In fact, the plaintiffin Strawberry was also denied such an extension, and our Circuit Court nonetheless rejected his claim ofage discrimination. Strawberry, 111 F.3d at 945. Indeed, such a result makes good sense. Ifaplaintiffcould successfully claim age discrimination based on the defendant's refusal to grant a discretionary waiverto the mandatory retirement age, the mandatory retirement provision would be rendered, in essence, unenforceable. Norwas it required ofthe State Department, as asserted for the first time in plaintiffs Opposition, to create a new assignmentjustto accommodate Colton's impending mandatory retirement. See Pl.'s Opp'n26. In the end, plaintiffs allegations amount to nothing

more than a blatant attempt to circumventthe mandatory retirementprovision, enforcement ofwhich 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

10betterthan herADEA claims. 3 In Vance v. Bradley, 440 U.S. 93 (1979), the Supreme Court held that the mandatory retirement provision ofthe Foreign Service Act, which at thattime required retirement at age 60, was rationally related to a legitimate state interest: "torecruit andtrain and to assure the professional competence, as well as the mental and physical reliability, ofthe corps ofpublic servants whoholdpositions 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 ofState'srationale for howthe mandatory retirementprovision was "an integral part ofthe personnel policies ofthe Service designed to create predictablepromotion 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 ofoverseas duty in the Foreign Service." Id. at 98. Furthermore, Bradleyis consistentwith decades ofequal protectionjurisprudence 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 ofthe 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. 

### 11

### irrelevant"); 

### Gregory v. 

### Ashcroft, 501 U.S. 452, 471-72 (1991) (rejecting equal protection challenge to state law provision requiring statejudges 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 meetthe requirements ofthe equal protection clause). Colton's attempt to avoid 

### Bradleyby 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 plaintiffreferences, 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 

### Bradleywas both more restrictive, in that it requiredretirement at 60 ratherthan 65, and itselfthirtyfour years old at the time ofthat decision. Finally, Colton is woefully misguided to imply that this Court can and should disregard Supreme Court precedent ifit 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 insufficientto revisit a settled issue. 

### See State Oil Co. v. 

### Khan, 522 U.S. 3, 20 (1997). To that end, although the mandatory retirementprovision 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 

### Bradleythat having a mandatory retirementprovision 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 reliefmay be granted for her equal protection challenge, Count II must also be dismissed. CONCLUSION 

### Forthe foregoing reasons, the defendant's Motion to Dismiss is GRANTED, and plaintiffsRule 56(f) Motion for Discovery is DENIED AS MOOT. An Order consistent with this decision accompanies this Memorandum Opinion.



## ,

United States DistrictJudge

Plaintiffsremaining arguments are insufficient to establish a viable equal protection challenge. For example, Bradley forecloses Colton's argumentthat other employees performing similar functions, as well as temporary civil service appointments, are permittedto serve past 65. See Bradley, 440 U.S. at 101-102 ("Congress plainly intended to create a relatively small, homogeneous, and particularly able corps ofForeign Service officers. Itwas 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 argumentthat the provision, in conjunction with another earlier allegedpolicy, 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