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Moore v. Muncie Police and Fire Merit Commission

December 05, 2002

RICHARD A. MOORE, PLAINTIFF-APPELLANT,
v.
MUNCIE POLICE AND FIRE MERIT COMMISSION, MIKE SZAKALY, DAVID EILER, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 00 C 177--Richard L. Young, Judge.

Before Coffey, Manion, and Evans, Circuit Judges.

The opinion of the court was delivered by: Coffey, Circuit Judge.

ARGUED MAY 14, 2002

In the spring of 1996, Richard A. Moore made application for employment with the Muncie, Indiana, Fire Department. On May 1 of that year, at the age of thirty-six years old, Moore completed his written application for employment with the Fire Department. He then surmounted the Department's first required hurdle, the agility test. He also passed the written aptitude test, and he was successful in his oral interview. On November 7, 1996, after Moore had completed those three initial steps in the application process, the Institute for Public Safety Personnel *fn1 sent an eligibility list containing Moore's name to the Muncie Police and Fire Merit Commission (Commission). The Commission is charged with overseeing the application process and nominating candidates for appointment to the Muncie Fire Department.

Two years later, on November 30, 1998, Moore received a written "Conditional Offer of Employment" from the Department, and the Commission forwarded his application for employment to the Muncie Firefighter's Pension Board for further review. The Pension Board reviews applications and certifies that the applicant meets the requirements for membership in the 1977 Pension and Disability Fund (the "Pension Fund"), which is a condition precedent for employment with the Muncie Fire Department pursuant to state law. See Indiana Code § 36-8-3-21(b).

Under Indiana law, an individual may not be hired by a municipal fire department as a firefighter (after May 31, 1985) unless he meets the conditions for membership in the Pension Fund. *fn2 See Indiana Code § 36-8-3-21(b). But Indiana law also provides that only individuals younger than thirty-six years old may become a member of the Pension Fund. See Indiana Code § 36-8-8-7(a)(2). Therefore, no individual making application after he has turned thirty-six years old may be hired as a Muncie firefighter. On December 1, 1998, the Pension Board determined that Moore--who was then beyond the age of thirtysix--was too old to become a member of the Pension Fund. Thus, the Commission could not appoint him as a Muncie firefighter under Indiana law.

On January 28, 2000, Moore filed suit in the Southern District of Indiana, alleging that the Commission's refusal to hire him violated 42 U.S.C. § 1983, depriving Moore of his constitutional right to due process. However, the court found that Moore did not have a property interest in securing a position as a firefighter for the City of Muncie, Indiana, and the judge granted Muncie's motion for summary judgment. Moore appealed that decision, and we affirm.

I. Factual Background

A.

The Muncie Police and Fire Merit Commission plays an integral role in the City of Muncie's public administration. The Commission is responsible for hiring, disciplining, and discharging police officers and firefighters, as well as for promulgating policies and procedures within the police and fire departments themselves. In fulfilling this responsibility, the Commission contracts with the Institute for Public Safety Personnel to administer and grade various tests in the firefighter application process and to compile an eligibility list for submission to the Commission. In turn, the Commission selects new firefighters from the Institute's list. When hiring a new employee, however, the Commission must also secure the approval of the Muncie Firefighter Pension Board, which is charged with voting on matters such as the acceptance of new employees into the Pension Fund.

Although Indiana law requires that applicants for the position of firefighter be under the age of thirty-six, from January 1, 1994 through September 30, 1996 the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA), forbade any employer from refusing to hire an individual because of the individual's age. Thus Indiana Code §§ 36-8-8-7(a)(2) and 36-8-3-21(b), which together dictate that only individuals who are less than thirtysix (36) years of age can apply to be firefighters, were preempted by federal legislation, and they were ineffective from January 1, 1994. However, on September 30, 1996 Congress amended the ADEA and removed the federal prohibition of the age limitations retroactive to December 31, 1993. See H.R. 3610, Pub. L. 104-208, Div. A, Title I, § 101(a), Sept. 30, 1996, 110 Stat. 3009-23. As a result, Indiana municipalities could comply with the age requirements of Indiana Code § 36-8-8-7(a)(2) when handling applications dating back to December 31, 1993 without violating the Federal ADEA requirements.

In light of the retroactive appeal, the Public Employees' Retirement Fund Board (PERF) *fn3 submitted a letter to the Muncie Pension Board on October 24, 1997, stating that PERF would follow a "temporary transition policy." The letter stated that active employees of the Department, or potential employees who had received a conditional offer of employment on or before September 30, 1996, would continue to be processed without regard to the age limitation. It also provided that applicants who had not received a conditional offer of employment on or before September 30, 1996, would be denied admission to the Pension Fund pursuant to Ind. Code § 36-8-8-7. Thus, the Board would not disqualify those applicants who had reached thirty-six years of age and over and who had completed all steps in the job application process and had received a conditional offer of employment prior to September 30, 1996. And since Moore had not yet received his conditional offer of employment prior to that date, *fn4 he failed to comply with the thirty-six year age limit reinstated by the transition policy.

B.

We now turn to the facts surrounding Moore's application to become a Muncie firefighter. As stated previously, Moore began the application process in May 1996, less than one year after he turned thirty-six years of age. Moore successfully completed the required agility test on June 19, 1996, and the written aptitude test on July 20, 1996. He sat for an oral interview on September 23, 1996, and ...


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