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UNITED STATES EEOC v. CITY OF EVANSTON

June 7, 1994

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
CITY OF EVANSTON, BOARD OF TRUSTEES OF EVANSTON FIREFIGHTERS PENSION FUND, and STATE OF ILLINOIS, Defendants.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the motion of defendant State of Illinois to dismiss the complaint to the extent it is directed against the State of Illinois pursuant to Fed. R. Civ. P. 12(b)(1). For the following reasons, the motion is denied.

 FACTS1

 Individuals Tony Quinones ("Quinones") and George Dwyer ("Dwyer") are firefighters for the City of Evanston ("City"). They were hired by the City after their thirty-fifth birthday. *fn2"

 The City has established and maintains a firefighters' pension fund in accordance with Illinois law. The relevant Illinois statute provides that:

 
In each municipality as defined in Section 4-103 [40 ILCS 5/4-103], *fn3" the city council or the board of trustees, as the case may be shall establish and administer a firefighters' pension fund as prescribed in this Article, for the benefit of its firefighters and of their surviving spouses, children and certain other dependents.

 40 ILCS 5/4-101 (1993) (brackets in original). Illinois law not only mandates certain municipalities to create a firefighters' pension fund, but also prescribes the qualifications necessary for firefighters to participate in the pension plan. See 40 ILCS 5/4-107 (1993). Section 4-107 states as follows:

 
Any person appointed as a firefighter in a municipality shall, within 3 months after receiving his or her first appointment and within 3 months after any reappointment make written application to the board to come under the provisions of this Article. Such person shall be eligible to participate provided (1) he or she has attained age 18 but not age 35 at the time of first appointment. . . .

 40 ILCS 5/4-107(b) (1993) (emphasis added). By the operation of § 4-107(b), Quinones and Dwyer have been unable to participate in the firefighters' pension fund established and administered by the City because they were both hired after their thirty-fifth birthday.

 On November 2, 1993, the United States Equal Employment Opportunity Commission ("EEOC") initiated an employment discrimination action against the named defendants on behalf of Quinones, Dwyer and other firefighters who are at least forty years of age adversely affected by § 4-107(b) under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. The complaint seeks both injunctive and monetary relief from the named defendants.

 DISCUSSION

 Lack of subject matter jurisdiction is appropriately raised in a motion to dismiss under Fed. R. Civ. P. 12(b)(1). Barnhart v. United States, 884 F.2d 295, 296 (7th Cir. 1989), cert. denied, 495 U.S. 957, 109 L. Ed. 2d 743, 110 S. Ct. 2561 (1990). Once questioned, it is the plaintiff's burden to establish that all jurisdictional requirements have been satisfied. Kontos v. U.S. Dept. of Labor, 826 F.2d 573, 576 (7th Cir. 1987). In this context, it is proper for the court to look beyond the jurisdictional allegations in the complaint and to view whatever evidence has been submitted in response to the motion. Roman v. United States Postal Serv., 821 F.2d 382, 385 (7th Cir. 1987).

 The EEOC does not offer any extrinsic evidence other than the allegations made in its complaint in response to the State of Illinois' motion. Nonetheless, the court finds that the complaint contains enough allegations to establish the court's subject matter jurisdiction over the action. To begin the court's analysis in reaching that conclusion, the court will briefly discuss the purpose and the operative language of the ADEA. Congress enacted the ADEA in 1967 to promote employment practices that are based on an individual's ability to perform, rather than on his or her age. 29 U.S.C. § 621(b). The ADEA was thus designed to prohibit employers from arbitrarily discriminating against individuals based on their age. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 120, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985). The ADEA makes it unlawful for employers "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age . . . ." 29 U.S.C. § 623(a). Any person who is at least ...


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