FBI agents sue over 'up-or-out' policy on career choices

Washington Post Staff Writer
Thursday, December 30, 2010; 6:19 PM

A group of current and retired agents is suing the FBI, claiming that the agency forced them from their supervisory positions because of age.

Thirty-five agents filed a complaint earlier this month in D.C. federal court, alleging that the FBI intentionally removed them as squad supervisors because they were all older than 40, and the bureau wanted to replace them with younger workers.

At issue is a policy known as "up or out" that was made mandatory in 2004. Under the policy, squad supervisors in field offices can hold those jobs for only five years. When the time limit expires, the supervisors are given a choice: transfer to FBI headquarters in Washington at the same salary, compete for a handful of promotions, take a demotion from a GS-14 to a GS-13 on the federal pay scale to remain in their own field office, or retire.

Michael P. Kortan, an FBI spokesman, declined to comment on the lawsuit. But he said the "up-or-out" policy was designed to ease a bottleneck in middle management at the bureau. After Sept. 11, 2001, there were many new agents entering field offices as well as new positions at headquarters in Washington, he said. By encouraging supervisors to continue in their career paths, the policy created management opportunities for the newer agents and allowed the FBI to fill jobs at headquarters, he said.

"The term-limit program is designed to attract and develop leaders to meet FBI management needs today and into the future," Kortan said in a statement. "It is not an up-or-out, but, more accurately, up-or-down; they have a choice, which includes incentives."

"By any measure, the program is a success," Kortan wrote, adding that it enabled the FBI to fill critical positions while "strengthening the leadership ranks across the board for today and the future."

According to the FBI, about 1,000 field supervisors have reached their "term limit" since 2004. Of those, about 51 percent either transferred to FBI headquarters or received a promotion, 27 percent took a demotion to remain in their field offices, 20 percent retired and a handful resigned because they were not eligible for retirement, the bureau said.

Virtually all of the field supervisors affected by the policy are older than 40.

"Because the FBI knew that this policy would adversely affect only agents who were more than 40 years of age, the decision to implement it constitutes intentional discrimination," the complaint says.

Accepting a demotion means a significant cut in pay; GS-14 salaries start at $105,211 while GS-13 salaries begin at $89,033. And that, in turn, can affect pension payments, which usually are based on the three highest earning years in a federal employee's career.

Robert Swick, an attorney representing the plaintiffs, said the policy was highly disruptive to agents faced with the choice of uprooting families to move across the country, absorbing a financial blow or quitting. "This is not exactly a family friendly policy," he said.

In one instance, an agent whose child had a serious medical condition did not want to leave the field office because it would mean moving away from a physician who was successfully treating the child, Swick said. The agent took a demotion in order to stay, he said.

Swick said more agents are likely to join the lawsuit, which was filed against Attorney General Eric H. Holder Jr. under the Discrimination in Employment Act. The plaintiffs are seeking a court order restoring their pay grade status, unspecified damages and an injunction preventing the FBI from retaliating against them.

The FBI Agents Association, which represents current and retired agents, said in a statement that the "up-or-out" policy harms law enforcement because when an experienced supervisor leaves a field office, he also walks away from intelligence networks he developed as well as relationships with local and state law enforcement.

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