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June 18, 1998

RICHARD T. KOPEC, Plaintiff,

The opinion of the court was delivered by: LEVIN


 Plaintiff, a prospective candidate for a full-time police officer position with Defendants, sues Defendants, alleging violation of the Age Discrimination and Employment Act, 29 U.S.C. § 621 et seq. Pending is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, this court grants Defendants' motion.


 Plaintiff Richard Kopec ("Kopec") was born on July 17, 1949. (Def. 12(m) P 1; Pl. 12(n) Resp. P 1.) In July of 1985, upon appointment by the Chief of Police of Defendant City of Elmhurst (the "City"), Kopec began working as a part-time or auxiliary police officer with the City. (Def. 12(m) P 10; Pl. 12(n) Resp. P 10; Pl. 12(n) Add. Facts P 41; Def. 12(n) Reply P 14.)

 On October 16, 1994, while still a part-time police officer, Kopec, then 45 years of age, began the process of applying for a position as a full-time Elmhurst police officer. (Def. 12(m) P 11; Pl. 12(n) Resp. P 11; Pl. 12(n) Add. Facts P 42; Def. 12(n) Reply P 42.) Elmhurst appoints eligible applicants to the police department through Defendant Board of Fire and Police Commissioners of the City of Elmhurst (the "Board"). (Def. 12(m) PP 6, 10; Pl. 12(n) Resp. PP 6, 10.) *fn1" The Board, an instrumentality of the City which derives its powers pursuant to the laws of the State of Illinois, consists of three individuals appointed by the Mayor. (Def. 12(m) PP 3, 6; Pl. 12(n) Resp. PP 3, 6.)

 Pursuant to the application process, Kopec successfully completed the minimum requirements for a physical agility and written tests. (Def. 12(m) PP 12-13; Pl. 12(n) Resp. PP 12-13; Pl. 12(n) Add. Facts PP 43-44; Def. 12(n) Reply PP 43-44.) After "veteran's preference points" were added, Kopec qualified on the "final" eligibility list to continue with the testing process. (Def. 12(m) P 13; Pl. 12(n) Resp. P 13.) By letter dated May 26, 1995, the Board advised Kopec that he had successfully completed the polygraph examination phase. (Pl. 12(n) Add. Facts P 45; Def. 12(n) Reply P 45.)

 Following the posting of the final eligibility list and the polygraph examination, candidates must successfully complete a background check and an individual oral interview prior to an offer of employment. (Def. 12(m) P 8; Pl. 12(n) P 8.) *fn2" It was at this point that Kopec's candidacy hit some snags. *fn3"

 On August 7, 1995, Kopec met with the Board. (Def. 12(m) P 14; Pl. 12(n) Resp. P 14; Pl. 12(n) Add. Facts P 55; Def. 12(n) Reply P 55.) At that time, Kopec was told that he had not provided sufficient proof of his college credit. (Id.)4 By letter dated August 24, 1995, the Board determined, after consulting with a City attorney, that Kopec had sufficiently demonstrated that he had met the minimum college credit requirements and that, therefore, Kopec could continue testing. (Def. 12(m) P 15; Pl. 12(n) Resp. P 15, Ex. 6; Pl. 12(n) Add. Facts P 70; Def. 12(n) Reply P 70.)

 After the background investigation was completed, Kopec appeared for an oral interview with the Board on September 5, 1995. (Def. 12(m) P 16; Pl. 12(n) Resp. P 16; Pl. 12(n) Add. Facts P 73; Def. 12(n) Reply P 73.) By letter dated September 6, 1995, the Board notified Kopec that he had not passed the oral interview and that his name would be removed from the eligibility list. (Def. 12(m) P 17; Pl. 12(n) Resp. P 17.)

 Kopec requested an opportunity to be heard and, on October 2, 1995, the Board reconvened and considered what Kopec offered in support of his conclusion that he should have passed the oral interview. (Def. 12(m) P 18; Pl. 12(n) Resp. P 18.) By letter dated October 4, 1995, the Board notified Kopec, then 46 years of age, that it declined to change its original decision to remove his name from the eligibility list. (Def. 12(m) P 19; Pl. 12(n) Resp. P 19.)

 By letter dated November 20, 1995, the City advised the United States Equal Employment Opportunity Commission of the various alleged grounds for the Board's refusal to hire Kopec. (Def. 12(m) P 22; Pl. 12(n) Resp. P 22; Pl. 12(n) Add. Facts P 75; Def. 12(n) Reply P 75; Pl. Ex. 12.)

 On April 30, 1996, Kopec filed his complaint in this action. Kopec alleges that Defendants violated the Age Discrimination and Employment Act, 29 U.S.C. § 621 et seq. (the "ADEA") in refusing to hire him. Presently pending before the court is Defendants' motion for summary judgment.


 Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party has produced evidence to show that it is entitled to summary judgment, the party seeking to avoid such judgment must affirmatively demonstrate that a genuine issue of material fact remains for trial. LINC Fin. Corp. v. Onwuteaka, 129 F.3d 917, 920 (7th Cir. 1997).

 In deciding a motion for summary judgment, a court must construe the evidence in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Nevertheless, the nonmovant may not rest upon mere allegations but "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). See also LINC, 129 F.3d at 920. A genuine issue of material fact is not shown by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252.


 In support of their motion for summary judgment, Defendants argue that Plaintiff cannot prove a prima facie case of discrimination under the ADEA and that, even if he could, Defendants had non-pretextual legitimate, nondiscriminatory reasons for not hiring him. Further, Defendants argue that an age ceiling provision in the ADEA regarding law enforcement officers exempts Plaintiff from protection under the ADEA. This court finds that Defendants' argument that the law enforcement officer provision of the ADEA exempts Plaintiff's claim is dispositive in Defendants favor. Accordingly, the court finds it unnecessary to address whether Plaintiff's ADEA claim is otherwise sufficient to survive summary judgment.


 The ADEA, originally enacted by Congress in 1967, generally prohibits the discharge of employees on the basis of age. See 29 U.S.C. § 623(a). In 1974, Congress amended the ADEA to include state and local governments within the definition of "employer." See 29 U.S.C. § 630(b), (f). In 1983, the Supreme Court upheld the constitutionality of this extension of federal regulation in EEOC v. Wyoming, 460 U.S. 226, 75 L. Ed. 2d 18, 103 S. Ct. 1054 (1983), and the EEOC began an enforcement effort targeting public employees mandatory retirement laws.

 In response to reaction from state and local governments, Congress, in 1986, enacted a seven year grace period in which bona fide age-restricted hiring and retiring of firefighters and law-enforcement officers would be exempted from ADEA coverage if carried out in accordance with applicable state or local age restrictions as of March 3, 1983 (the date of the Wyoming decision). See 29 U.S.C. § 623(j) (originally codified as 29 U.S.C. § 623(i)). This 1986 statutory firefighter and law-enforcement officer exemption expired by its own terms on December 31, 1993.

 In 1996, Congress re-enacted the firefighter and law-enforcement officer age exemption to the ADEA (the "1996 Amendment") retroactive to the prior expiration date, December 31, 1993. *fn5" As is pertinent here, the subject exemption entitled "Employment as ...

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