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ROCHE v. CITY OF CHICAGO

April 12, 1993

THOMAS ROCHE, WILLIAM FOLEY, and JOSEPH BRICHETTO, Plaintiffs,
v.
CITY OF CHICAGO, Defendant.


ALESIA


The opinion of the court was delivered by: JAMES H. ALESIA

Before the court are plaintiffs' and defendant's cross motions for summary judgment. *fn1" Also before the court is plaintiffs' motion to strike documents. For the reasons set forth below, plaintiffs' motion for summary judgment is granted and defendant's motion for summary judgment is denied. Furthermore, plaintiffs' motion to strike documents is denied as moot.

 I. FACTS

 Plaintiffs are former Deputy Fire Commissioners employed by the City of Chicago ("City"). Plaintiffs Foley and Roche, who reached the age of sixty-three in the years 1984 and 1987 respectively, were mandatorily retired upon the passage of the revised city ordinance in March of 1988. Plaintiff Brichetto was retired in 1989 upon reaching the age of sixty-three.

 From 1935 until 1983 the City required Chicago Fire Deparment employees in classified civil service positions to retire at the age of sixty-three. Based on the plain language of the ordinance, it applied only to employees in the classified civil service:

 
The age of sixty three years shall be the maximum age for legal employment of policemen and firemen in the classified civil service of the City. Every policeman and every fireman in the classified civil service of the City who has attained the age of sixty three years shall forthwith and immediately be retired from service.

 CHICAGO, ILL., MUNICIPAL CODE ch. 25, § 37 (1935). The ordinance remained in effect until March of 1983 when the United States Supreme Court held that the provisions of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., applied to municipal employers. EEOC v. Wyoming, 460 U.S. 226, 75 L. Ed. 2d 18, 103 S. Ct. 1054 (1983). The ADEA prohibits various forms of age discrimination in employment, including the discharge of workers on the basis of their age. 29 U.S.C. § 623 (a)(1992). To comply with the mandate of EEOC v. Wyoming, the City amended its ordinance by raising the mandatory retirement from sixty-three to seventy. CHICAGO, ILL., MUNICIPAL CODE ch. 25, § 37 (1983). *fn2"

 In 1986, Congress amended the ADEA to establish an exception in coverage for firefighters and police officers. 29 U.S.C. § 623(j)(1986). *fn3" The exemption provides in relevant part:

 
(1) with respect to the employment of an individual as a firefighter or a law enforcement officer and the individual has attained the age of . . . retirement in effect under the applicable State or local law on March 3, 1983 . . . .

 Id. The inquiry focuses on the applicable state or local law on March 3, 1983, the day after the Supreme Court decided EEOC v. Wyoming, 460 U.S. 226, 75 L. Ed. 2d 18, 103 S. Ct. 1054 (1983). The exemption expires on December 31, 1993. 29 U.S.C. § 623 note (Supp. 1986). *fn4"

 The City in turn amended its retirement ordinance again to reflect the new ADEA exemption. The City's 1988 ordinance, as amended, applies to a broader class of firefighters than the 1983 ordinance:

 
The age of sixty three years shall be the maximum age for legal employment of sworn members of the Police Department and members of the uniformed service of the Fire Department.

 CHICAGO, ILL., MUNICIPAL CODE, ch. 25, § 37 (1988) (emphasis added). The new ordinance deletes the words "classified civil service" and inserts "members of the uniformed Service." Plaintiffs were mandatorily ...


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