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Desris v. City of Kenosha

decided: September 9, 1982.

JOHN F. DESRIS AND LEO F. KONRAD, PLAINTIFFS-APPELLEES,
v.
THE CITY OF KENOSHA, WISCONSIN, ET AL., DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 78-C-832 -- Terence T. Evans, Judge.

Posner and Coffey, Circuit Judges, and Campbell, Senior District Judge.*fn*

Author: Coffey

COFFEY, Circuit Judge.

This is an appeal from a Decision and Order of the District Court for the Eastern District of Wisconsin, the Honorable Terence T. Evans, presiding. The decision appealed from granted the plaintiffs' motion for summary judgment holding that the Kenosha City Ordinance No. 39-74 requiring the plaintiff-firefighters to retire from their positions as firefighters at age sixty violated the plaintiffs' right to equal protection of the laws secured under the Fourteenth Amendment to the United States Constitution. We REVERSE.

The firefighters employed by the City of Kenosha participate in one of two separate and distinct pension plans of the City of Kenosha, Wisconsin. Each of the two pension plans was established under the mandates of state law and their provisions are governed by state statutes. One of the two pension plans applies to firefighters hired before January 1, 1948 and was established pursuant to § 62.13 Wis. Stats. (hereinafter " § 62.13 plan").*fn1 The other pension plan, created in 1947 by § 66.90 Wis. Stats. (now generally Chapter 41 1979-80 Wis. Stats.), covers firefighters hired after January 1, 1948 and is denominated the Wisconsin Retirement Fund ("WRF"). The WRF and the § 62.13 plans are separate and distinct pension plans each of which pay separate and distinctly different benefits. The date of hiring is the sole factor which determines which one of the two pension plans a Kenosha firefighter belongs to, except that at the time the WRF plan was created the firefighters participating in the § 62.13 plan were given the opportunity to join the WRF plan. No City of Kenosha firefighter participating in the § 62.13 plan made the election to join the WRF plan.

The § 62.13 plan, pursuant to state statute, was administered by a local board, known as the Kenosha Fireman's Pension Board (K.F.P.B.), whose membership was made up of the Mayor, the Fire Chief, the City Clerk, the City Comptroller, and three firefighters selected by the participating members of the pension plan.*fn2 The WRF plan is administered on a state-wide basis by the WRF board under Chapter 41 of the Wisconsin Statutes.

The § 62.13 plan initially had no mandatory retirement age but in 1967, the Kenosha Fire Pension Board fixed the mandatory retirement age for § 62.13 firefighters at age 65.

The WRF pension plan initially provided by state statute for compulsory retirement at age 65, and later was amended to reduce the age to 60, unless the employer or appointing authority extended the employee's term. In 1967 the Wisconsin Legislature changed the WRF plan to provide that the normal mandatory retirement age for Wisconsin firefighters would be age 55 unless the local government chose to extend that age. Chapter 355 Laws of Wisconsin 1967. On May 7, 1974, the Kenosha Common Council, exercised this statutory authority by enacting Ordinance No. 39-74, extending the mandatory retirement age for WRF firefighters from age 55 to age 60.

The plaintiffs were both hired by the City of Kenosha as firefighters on January 15, 1951 and thus are participants in the WRF plan. Pursuant to Kenosha City Ordinance No. 39-74, both plaintiffs were retired on January 1, 1977 as both had attained the age of 60. The plaintiffs subsequently commenced this action under 42 U.S.C. § 1983, the Age Discrimination in Employment Act ("ADEA"), and the Fourteenth Amendment of the United States Constitution against the City of Kenosha, the members of the Kenosha Common Council, and Mayor Wallace E. Burkee, alleging that the plaintiffs were unlawfully forced to retire from their jobs.

The parties to this action agreed to a partial stipulation of facts and subsequently the plaintiffs moved for summary judgment on the ground that their mandatory retirement by the city denied them equal protection of law in violation of the Fourteenth Amendment and 42 U.S.C. § 1983, in that firefighters under the § 62.13 plan were not subject to compulsory retirement by the city until age 65 while the plaintiffs were forced to retire at age 60.*fn3 The defendants also moved for summary judgment on the ground that the retirement of the plaintiffs was lawful under the terms of the ADEA, which permits an employer to retire employees pursuant to the terms of a bona fide pension plan.

The district court granted the plaintiffs' motion for summary judgment holding that the mandatory retirement provision of the WRF pension plan contravened the Equal Protection clause of the Constitution since (1) the action of the K.F.P.B. can be characterized as official city action, and (2) there was no rational basis for the difference in mandatory retirement age existing between the WRF and the § 62.13 pension plans. Based upon these holdings, the district court's order awarded the plaintiffs full backpay from the day of their forced retirement to the day of their 65th birthday.

The defendants raise three issues on appeal: (1) whether an equal protection issue can arise where two separate and distinct pension plans administered by separate bodies create disparate dates for mandatory retirement; (2) whether a rational basis exists for the disparate ages for mandatory retirement; and (3) whether there is a basis for an equal protection violation absent a showing of a purposeful and invidious denial of equal protection. We view the defendants' first issue as raising the question of whether the members of the WRF plan and members of the § 62.13 plan are in fact similarly situated within the purview of the Equal Protection clause. Our resolution of this issue disposes of this appeal.

Issue : Are the plaintiffs, as members of the WRF pension plan, similarly situated with firefighters governed by the § 62.13 pension plan and thus entitled to equal protection of the law?

It is axiomatic that the Equal Protection clause of the Fourteenth Amendment only guarantees like treatment to persons similarly situated. As most ...


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