United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
This matter is before the Court on Defendant City of Chicago's motion to dismiss Plaintiff Jermaine Ledbetter's complaint . For the reasons set forth below, the Court grants Defendant's motion to dismiss  and denies as moot Defendant's motion for leave to file supplemental authority .
Plaintiff Jermaine Ledbetter's one-count complaint against Defendant City of Chicago alleges violations of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (the "ADEA"), on the grounds that the City made out-of-rank eligibility preferences (which occurred before Plaintiff turned 40) and removed Plaintiff from the Chicago Police Department's ("CPD") hiring (or referral) eligibility list after he turned 40. Plaintiff states that he seeks to "recover damages against the City for the violation of his rights under the [ADEA]."
In his Complaint, Plaintiff alleges that "[i]n October 2010, the CPD published a Job Announcement for the position of police officers", that Plaintiff "answered the City's Job Announcement and took the 2010 Chicago Police Officer Examination ("Exam") offered by the City in December of 2010", and that"[s]hortly after taking the Exam, [plaintiff] received a letter from the City stating that he had passed the Exam and was an eligible candidate for hire." Plaintiff further alleges that "[t]he Announcement provided that Applicants who passed the written exam, met the minimum qualifications, and attached the appropriate required documentation to their application would be placed on a referral list in lottery order and be considered Candidates for hire." Plaintiff alleges that he was assigned lottery number 590 out of a total of 6, 428 eligible candidates. Plaintiff was "37 years of age when he took the Exam in December of 2010." He admits that "[t]he City stated in the Job Announcement that per municipal code of the City of Chicago, no person may be appointed as a Probationary Police Officer after their 40th birthday."
To support his age discrimination claim, Plaintiff alleges that "the City failed to ever refer [Plaintiff] as an eligible candidate for the CPD", that "the City bypassed [him] and referred candidates with higher lottery numbers while failing to refer [Plaintiff] despite his lower lottery number, " that "[o]n July 11, 2013, one day after having achieved his 40th birthday, [Plaintiff] received a letter from the City informing him that he reached the maximum proscribed age of 40 and was therefore being removed from the referral eligibility list", and that "the City purposefully violated their [sic] own Job Announcement and Hiring Plan * * * to extend employment opportunities to persons younger than [Plaintiff]."
II. Legal Standard
The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of the case; a Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). As previously noted, reviewing a motion to dismiss under Rule 12(b)(6), the Court takes as true all factual allegations in Plaintiff's complaint and draws all reasonable inferences in his favor. Killingsworth, 507 F.3d at 618. To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief above the "speculative level, " assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). However, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550 U.S. at 555) (ellipsis in original). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011); cf. Scott v. City of Chi., 195 F.3d 950, 952 (7th Cir. 1999) ("Whether a complaint provides notice, however, is determined by looking at the complaint as a whole.")
The ADEA prohibits discrimination on the basis of age; however, it has its limits, two of which are relevant here. First, the ADEA does not protect persons under 40. Second, under certain circumstances, the ADEA allows a local government to refuse to hire police officers on the basis of age. As set forth below, Plaintiff makes two fatal admissions in his opposition brief (which are consistent with his complaint). First, he admits that he was "not covered under the provisions of the [Age Discrimination in Employment Act ("ADEA")]" when he was under the age of 40. Pl. Resp. at 4. Second, Plaintiff also admits that he is "not contesting the validity of the City's municipal ordinance that prohibits the hiring of individuals over the age of 40, M.C.C. § 2-152-410(e)." Id. at 5. As set forth below, these admissions, along with the allegations in Plaintiff's complaint, bar Plaintiff's instant ADEA lawsuit against the City.
A. Persons Under 40
To establish a claim for age discrimination under the ADEA, a plaintiff must show that: (1) he was a member of the protected class (age 40 or over); (2) he was meeting his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) similarly situated, substantially younger employees were treated more favorably. Franzoni v. Hartmarx Corp., 300 F.3d 767, 771-72 (7th Cir. 2002). Here, Defendant contends that Plaintiff's ADEA claim fails because it relates to conduct which occurred before he turned 40 (and thus he was not a member of the age-protected class). See Hamilton v. Caterpillar Inc., 966 F.2d 1226, 1227 (7th Cir. 1992) (affirming the district court's dismissal of age discrimination suit because the "ADEA allows individuals only 40 years and older to sue."). Plaintiff contends that "[t]he City has offered no explanation nor cited any authority that grants the City the power to refuse to refer Plaintiff for hiring over a three year period." Pl. Resp. at 8-9.
Plaintiff's argument (and, in a sense, entire theory) misses the mark. The City has cited several cases which hold that the ADEA does not recognize a claim for reverse age discrimination. See General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 584 (2004) (holding that the ADEA does not provide a remedy for reverse age discrimination); Hamilton, 966 F.2d at 1227. This is the "authority" by which the City avoids liability for alleged age discrimination as to conduct which occurred during the three years preceding Plaintiff's fortieth birthday. The Hamilton court reasoned that "[i]f the [ADEA] were really meant to prevent reverse age discrimination, limiting the protected class to those 40 and above would make little sense." Id. Although Plaintiff alleges that the City purposefully failed to refer him as an eligible candidate for the CPD, and that the City instead referred younger candidates with higher lottery numbers, he admits that this alleged conduct took place before he turned 40, thereby pleading himself out of court. In ...