Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75-C-3048 - John F. Grady, Judge.
Fairchild, Chief Judge, Swygert, and Pell, Circuit Judges.
This appeal is before us because a 69 year old federal employee, who has served with distinction for over thirty years and who, by law, is entitled to continue in his employment until at least age 70,*fn1 has been told that, regardless of the validity of his claim to be suffering on-the-job age discrimination, he is "too old" to seek relief under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (hereinafter, "ADEA"). We have found no evidence that Congress intended such illogic, nor that any purpose would be served by it, and so, we decide that, at the very least, federal employees must be allowed to pursue ADEA claims until reaching the retirement age of 70.*fn2
Appellant, C. McChord Christie, is a 69 year old Senior Field Examiner with the Federal Home Loan Bank Board (hereinafter, "FHLBB") in Chicago. He has been a federal employee for over thirty years, and throughout that time has been cited for distinguished service.*fn3 Beginning in 1971, Mr. Christie found himself being urged to take early retirement from his job with the FHLBB.*fn4 At first, this involved nothing more than two conversations with named defendant, Victor S. Meller, asking if Mr. Christie had considered early retirement. But, according to Mr. Christie, as his decision not to take early retirement became apparent, his superiors retaliated by ignoring him for promotions because of his age, denying him training for better jobs because of his age, and generally treating him less favorably than younger Board employees.
By the summer of 1975, Mr. Christie's dissatisfaction with his treatment was such as to prompt him to file informal, and then formal, complaints of age discrimination with the FHLBB. On August 11, 1975, the FHLBB's Director of Equal Employment Opportunity rejected the complaint, explaining that because Mr. Christie's age was over 65, the complaint was "outside the coverage of the regulations against age discrimination."*fn5 The Director went on to advise Mr. Christie that, while his formal complaint did not fall within the coverage of the official complaint system, he could still pursue the particular problem of his treatment through either the agency's grievance procedure or that of the American Federation of Government Employees. In any case, Mr. Christie was told, rejection of his formal complaint did represent "a final agency decision on this matter" which he was entitled to appeal to the Appeals Review Board of the Civil Service Commission or, in the alternative, by filing a civil action in federal court.
Accordingly, on September 10, 1975, Mr. Christie filed this class action with the district court. In his complaint, Mr. Christie alleges that he and other federal employees similarly situated*fn6 have been subject to discriminatory treatment based on their age in an attempt by defendants to force their early retirement. Such action, it is alleged, violates the Due Process Clause of the Fifth Amendment and other federal laws, rules and regulations. Monetary damages are sought as well as such equitable relief as is necessary to end "harrassment" of the plaintiff class and to restore to them the employment benefits they have lost.
On June 16, 1976, the district court dismissed the complaint (1) because Mr. Christie, then being 68 years of age, was found too old to claim ADEA protection from age discrimination, the court ruling that only individuals between the ages of 40 and 65 were meant by Congress to be protected by the ADEA, and (2) because, by not pursuing the Civil Service or union grievance procedures outlined in the Director of Equal Employment Opportunity's letter, Mr. Christie had failed to exhaust administrative remedies as to his constitutional and other statutory claims. Mr. Christie appeals from this dismissal.
Section 15 of the ADEA, 29 U.S.C. § 633a, in language that is broad, but seemingly self-contained, provides the basis for Mr. Christie's claim.
All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of title 5, United States Code, in executive agencies as defined in section 105 of title 5, United States Code (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Rate Commission, in those units in the government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on age.
In reviewing the district court's dismissal of the claim, the principal issue for this court to decide is whether the age limitations of section 12 of the ADEA, 29 U.S.C. § 631, which provides that,
The prohibitions in this Act shall be limited to individuals who are at least forty years of age but less ...