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March 25, 2002


The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge:


The plaintiffs in these cases are Chicago Police and Fire Department officers who were involuntarily retired under the City of Chicago's mandatory retirement ordinance, Chicago Municipal Code § 2-152-140. Donald Drnek sued the City of Chicago ("City") for violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and for due process violations under federal and Illinois law. James Minch, Richard Graf and Richard Cosentino filed a substantially identical claim on behalf of themselves and others similarly situated.*fn1 The City moves to dismiss both complaints. I deny the motion as to the ADEA claims in Count I, and grant them in part and deny them in part as to the due process claims in Counts II and III.


The plaintiffs, all former Chicago police officers and firefighters, were terminated on December 31, 2000, pursuant to the City's mandatory retirement ordinance (the "Ordinance"), which establishes sixty-three years as the maximum age for sworn members of the Police Department and for members of the uniformed service of the Fire Department. Chicago Municipal Code ("CMC") § 2-152- 140.*fn2 The City did not give the plaintiffs an opportunity to take physical fitness tests to demonstrate that they could still meet the fitness requirements of the job.

Ordinarily, under Fed. R. Civ. P. 23, class certification should be addressed before any consideration: of the merits, but the ADEA class action is not subject to Rule 23, see 29 U.S.C. § 626(b) (incorporating opt-in procedures under 29 U.S.C. § 216); Tice v. American Airlines, Inc., 162 F.3d 966, 973 (7th Cir. 1998) (holding that ADEA class actions are "opt-in" actions under § 216(b), not "opt-out" actions subject to Rule 23), so I may address the merits of these claims without resolving class certification. See Vanskike v. Peters, 974 F.2d 806, 812-13 (7th Cir. 1992) (addressing merits of § 216(b) action before resolving class issues); see also McCann v. City of Chicago, No. 89 C 2879, 1990 WL 70415, at *3 (N.D. Ill. May 3, 1990) (Grady, J.). On the due process claims, the plaintiffs have not moved for certification under Rule 23, and the City moved to dismiss on the merits without addressing the propriety of certification, so it has waived the Rule 23(c) protection of certification before a decision on the merits. See Williams v. Lane, 129 F.R.D. 636, 647 (N.D. Ill. 1990) (Shadur, J.) (Noting that certification prior to the merits protects against "one-way intervention" by class members, and holding that a defendant implicitly waived objection on this basis by seeking a favorable decision on the merits). To the extent that the City objects to the plaintiffs' standing to raise arguments on behalf of other class members, the class issues are not ripe. I therefore address only the claims of the individual plaintiffs. I

On a motion to dismiss, I take all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiffs. Szumny v. American Gen. Fin., Inc., 246 F.3d 1065, 1067 (7th Cir. 2001). I will not dismiss a complaint for failure to claim unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claims which would entitle them to relief. Id.

II. Age Discrimination

The ADEA makes unlawful the discharge off an individual because of his age, 29 U.S.C. § 623(a)(1), but it contains an exemption for firefighters and law enforcement officers, id. at § 623(j). The exemption applies if certain age requirements are met and if the employment action is taken pursuant to a bona fide retirement plan that is not a subterfuge to evade the purposes of the ADEA. To avoid dismissal, therefore, the plaintiffs need only demonstrate that they are entitled to proceed on one of the two theories: the propriety of the age requirements or subterfuge.

The ADEA was enacted in 1967, and at that time it did not apply to employees of state or local government. Kopec v. City of Elmhurst, 193 F.3d 894, 896 (7th Cir. 1999). On March 2, 1983, the Supreme Court held that the ADEA could be applied to state and local government, see EEOC in Wyoming, 460 U.S. 226 (1983), leaving many state and local laws establishing maximum hiring and retirement ages for firefighters and police officers open to challenge. See Kopec, 193 F.3d at 897. To preserve mandatory retirement ordinances, states and municipalities had to demonstrate that they fit into the narrow exception for bona fide occupational qualifications ("BFOQ"). Id. In 1986, however, Congress amended § 623 to allow states to enforce any age restrictions that were in place as of March 3, 1983 (the day after the Supreme Court decided EEOC v. Wyoming). Id. The amendment had sunset provision, providing for expiration on December 31, 1993. Id. The amendment expired, and Congress took no further action until 1996, when it retroactively reinstated the 1986 amendment with some modifications.

The 1996 amendments*fn3 say that a mandatory retirement provision does not violate the ADEA if "the employer has complied with section 3(d)(2) of the Age Discrimination in Employment Amendments of 1996 if the individual was discharged after the date described in such section." 29 U.S.C. § 623(j)(1). In addition, the employee must have reached either (A) the retirement age in effect on March 3, 1983, or, (B) if the law was enacted after September 30, 1996, the higher of the age provided in the law n age fifty-five. Id. Finally, the employment action must be taken "pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of [the ADEA]." Id. at (j)(2).

"Section 3(d)(2)" is not a part of the United States Code, but according to the Historical and Statutory Notes to § 623, section 3(d)(2) "probably means" Pub. L. 104-208, Title I, § 101(a), which sets forth a "Study and Guidelines for Performance Test" to be conducted by the Secretary of Health and Human Services ("HHS"). Under Pub. L. 104-208, HHS was to develop and issue, by September 30, 2000, "advisory guidelines for the administration and use of physical and mental fitness tests to measure the ability and competence of law enforcement officers and firefighters to perform the requirements of the[ir] jobs." Id. at (c). After issuing the advisory guidelines, HHS was directed to issue regulations identifying appropriate nondiscriminatory job performance tests, id. at (d)(1), and "[e]ffective on the date of the regulations described in [subparagraph (d)(1)], any employer seeking such exemption with respect to a firefighter or law enforcement officer who has attained such age shall provide to each firefighter or law enforcement officer who has attained such age an annual opportunity to demonstrate physical and mental fitness by passing a test described in [subparagraph (d)(1)], in order to continue employment." Id. at (d)(2). HHS never issued the advisory guidelines or regulations called for by § 3(c) and (d).

The City had a mandatory retirement ordinance as early as 1939, which provided for retirement of "policemen and firemen in the classified civil service." Pl's Ex. B. This version was in effect until 1983, when the Supreme Court decided that the ADEA applied to State and local governments. EEOC v. Wyoming, 460 U.S. 226 (1983). In response to the Supreme Court's decision, the City amended its mandatory retirement ordinance, raising the retirement age to 70 and applying to the "career service," which had replaced the classified civil service in 1976. Pl's Ex. C. This version was in effect until 1988, when the City again amended the ordinance in response to the first "public safety exemption" passed by Congress in 1986. The 1988 version provided that "[e]very sworn member of the police department and every member of the uniformed service of the fire department who has attained the age of 63 years prior to December 31, 1993, shall forthwith and immediately be retired from service." Pl's Ex. D. The ordinance thus mirrored the sunset provision of the 1986 public safety exemption. After December 31, 1993, there was no ordinance that provided for mandatory retirement of police and firefighters until, on May it 2000, the City enacted the Ordinance that is the subject of this suit, which sets sixty-three as the maximum age for employment of sworn members of the Police Department and for any member of the uniformed service of the Fire Department. CMC § 2-152-410(a), (k).'

A. Section 623(j)(1): Proper Age Requirements

1. Fitness Tests

The plaintiffs claim that the City violated the ADEA because it discharged them under the Ordinance without affording them an opportunity to prove their fitness for duty by taking the tests described in § 3(d)(2). Although no such tests were ever prescribed by HHS, the plaintiffs claim that the reference to § 3(d)(2) in § 623(j)(1) made performance testing a "first-tier prerequisite to mandatory retirement," and that "the spirit and the letter of Section 623(j)" require an opportunity to prove fitness before mandatory retirement. The plaintiffs cite Gately v. Massachusetts, No. CIV. A. 92-13018-MA, 1998 WL 518179 (D. Mass. June 8, 1998), in support of their argument that the City, like the defendants in Gately, ought to have retained an expert to develop tests in order to comply with the statute. But Gately was brought under § 623(f)(1) (the BFOQ provision), before the 1996 amendments, so the discussion of § 623(j)(1) as a Congressional endorsement of fitness tests is dictum. I cannot read Gately, a case arising under § 623(f)(1), to require employers to incur the cost of developing fitness tests to comply with § 623(j), particularly where Congress evidenced an intent in § 3(d)(2) to place t a burden on HHS.

Section 623(j)(1), as amended, contains no sunset provision, but it leaves a gap by requiring employers to comply with regulations that have not been promulgated. As a "general rule[,] exceptions to remedial statutes are to be narrowly construed." EEOC in Chicago Club, 86 F.3d 1423, 1433 (7th Cir. 1996). The plain language of the statute, the starting point in all statutory interpretation, United States v. Wagner, 29 F.3d 264, 266 (7th Cir. 1994), merely mandates compliance with § 3(d)(2), so it offers no guidance in discerning Congress' intent. Section 3(d)(2), however, requires an employer to offer a fitness test developed by HHS "[e]ffective on the date of issuance of the [HHS] regulation," and requires an employer to offer tests only after HHS develops them and issues regulations. Section 3(d)(1) says that an employer "shall" use the performance tests developed and issued by the Secretary. One interpretation of § 623, the one rejected in Glennon, is that the exemption was void ab initio because it required compliance with non-existent regulations. Put another way, § 623(j) says that an employer may discriminate based on age only if it complies with regulations promulgated by HHS, and if no regulations were promulgated, the employer could not comply and therefore could not meet the requirements of the public safety exemption. An alternative construction is that the fitness tests themselves were an exception to the exemption, with which the City had to comply only once regulations were promulgated. That is, because no regulations were ever promulgated. the effective date in § ...

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