Kopec v. City of Elmhurst

• Decision Date: 05 October 1999
• Docket Number: No. 98-2858,98-2858
• Parties: (7th Cir. 1999) RICHARD T. KOPEC, Plaintiff-Appellant, v. CITY OF ELMHURST, a municipal corporation, and BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF ELMHURST, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 894

193 F.3d 894 (7th Cir. 1999)

RICHARD T. KOPEC, Plaintiff-Appellant, v. CITY OF ELMHURST, a municipal corporation, and BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF ELMHURST, Defendants-Appellees.

No. 98-2858

United States Court of Appeals, Seventh Circuit

Argued February 16, 1999

Decided October 5, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 2585--Ian H. Levin, Magistrate Judge. [Copyrighted Material Omitted] Before POSNER, Chief Judge, and FLAUM and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

At age 45, Richard Kopec sought to become a full-time police officer for the Chicago suburb of Elmhurst. The city declined to hire him, explaining that he had failed an oral interview. Kopec filed suit under the Age Discrimination in Employment Act of 1967, as amended (the "ADEA"), 29 U.S.C. sec. 621, et seq., contending that the real reason for the city's refusal to hire him was his age. The district court granted summary judgment in favor of Elmhurst, concluding that the express terms of 29 U.S.C. sec. 623(j) retroactively exempted the city from the ban on age discrimination with respect to firefighters and law enforcement officers. Kopec v. City of Elmhurst, 8 F. Supp. 2d 1082 (N.D. Ill. 1998). We agree and affirm.

I.

In July 1985, at the age of 36, Kopec began work for Elmhurst as a part-time or auxiliary police officer. In most respects, the responsibilities of that job are comparable to that of a full-time police officer. Kopec wore a badge and carried a gun, patrolled the streets, apprehended those engaged in criminal mischief, and maintained the same fitness level as his full-time colleagues. At the time of his hire, however, Illinois law as well as the employment criteria of the Elmhurst Board of Fire and Police Commissioners (the "Board") required applicants for full-time employment to be younger than 35.

In the years preceding Kopec's hire, federal age discrimination law had undergone significant evolution insofar as public safety workers were concerned. As enacted in 1967, the ADEA did not apply to anyone employed by a state or local government. In 1974, Congress eliminated that exemption, P.L. 93-259, 88 Stat. 55, 74, but the Supreme Court's subsequent holding in National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465 (1976) (declaring unconstitutional the extension of wage and hour provisions of the Fair Labor Standards Act to employees of state and local governments), raised some doubt as to whether the Tenth Amendment permitted Congress to bind state and local governments to federal age discrimination rules. See David A. Knight, Note, The Constitutionality of the ADEA after Usery, 30 Ark. L. Rev. 363 (1976); Ellen B. Spellman, Note, National League of Cities v. Usery: Its Implications for the Equal Pay Act and the Age Discrimination in Employment Act, 10 U. Mich. J. L. Ref. 239 (1977); but see E.E.O.C. v. County of Calumet, 686 F.2d 1249, 1251-53 & n.2 (7th Cir. 1982), and E.E.O.C. v. Elrod, 674 F.2d 601, 603- 12 (7th Cir. 1982) (concluding that Congress properly exercised its authority under section 5 of the 14th Amendment when it extended ADEA to state and local employees). The Supreme Court settled the question in E.E.O.C. v. Wyoming, 460 U.S. 226, 103 S. Ct. 1054 (1983), ruling that the ADEA could be applied to state law enforcement officers. That holding, of course, left open to challenge the many state and local laws which, like those of Illinois and Elmhurst, established maximum hiring and retirement ages for firefighters and police officers. States and municipalities wishing to preserve such limits would have to prove that age is a bona fide occupational qualification ("BFOQ") for public safety positions. See id. at 240, 103 S. Ct. at 1062; see also United Auto Workers v. Johnson Controls, Inc., 499 U.S. 187, 201, 111 S. Ct. 1196, 1204 (1991) ("[tlhe BFOQ defense is written narrowly, and this Court has read it narrowly"); Johnson v. Mayor & City Council of Baltimore, 472 U.S. 353, 105 S. Ct. 2717 (1985).

However, in 1986 (the year after Kopec was hired), Congress granted state and local governments a temporary exemption from the strictures of the ADEA for law enforcement and firefighting personnel. Pub. L. 99-592, 100 Stat. 3342; see 29 U.S.C. sec. 623(1) (1988) (later codified at sec. 623(j)); Roche v. City of Chicago, 24 F.3d 882, 883 (7th Cir. 1994); McCann v. City of Chicago, 968 F.2d 635, 636 (7th Cir. 1992), cert. denied, 506 U.S. 986, 113 S. Ct. 495 (1992). Essentially, the amendment permitted state and local governments which, as of March 3, 1983 (the day after the Supreme Court decided E.E.O.C. v. Wyoming), had in place age restrictions for firefighters and law enforcement officers, to continue to apply those restrictions. 29 U.S.C. sec. 623(i) (1988). By its terms, the amendment did not apply to pending cases and other causes of action arising prior to January 1, 1987, the effective date of the amendment. See 29 U.S.C. sec. 623 (1988), Note: Effective and Termination Dates of 1986 Amendments; 100 Stat. 3342, 3345. The amendment also included a sunset provision pursuant to which it would expire on December 31, 1993. 100 Stat. 3342.¹

At the conclusion of this grace period, the ADEA once again became applicable to state and local police officers and firefighters. Hewing to the change in federal law, the Elmhurst Board in September of 1994 dropped its under-35 restriction for new police officers, and effective June 30, 1995, the State of Illinois did the same.

With the door now open to him, Kopec applied in October 1994 for a full-time position on the Elmhurst police force. Initially, things went well for him--he was ranked number 5 on a list of 87 eligible candidates. Indeed, by the time the Board conducted an oral interview of Kopec in September 1995, he was first on the eligibility list. However, by letter dated September 6, 1995, the Board informed Kopec that he had failed the interview. His name was therefore removed from the eligibility list for full-time employment. The Board granted Kopec an opportunity to be heard on October 2, 1995, but it declined to change its decision. He subsequently obtained employment (at age 48) as a full-time officer with the Village of Addison.

On April 30, 1996, Kopec filed suit against the city after receiving his right-to-sue letter from the EEOC. He later added the Board as a defendant. The Board moved to dismiss his amended complaint as untimely, but the district court (which treated the motion as one for summary judgment) denied the request. Kopec v. City of Elmhurst, 966 F. Supp. 640 (N.D. Ill. 1997) (Denlow, M.J.).

Meanwhile, Congress tinkered once again with the ADEA. In 1996 (after Kopec had filed suit), Congress amended the statute to reinstate the expired 1986 provision, thereby restoring the exemption for state and local governments that had age-based restrictions in place for firefighters and law enforcement workers as of March 3, 1983. Pub. L. 104-208, 110 Stat. 3009- 23, presently codified at 29 U.S.C. 623(j). As amended, the statute provides, in relevant part:

It shall not be unlawful for an employer which is a State, a political subdivision of a State, an agency or instrumentality of a State, or a political subdivision of a State, or an interstate agency to fail or refuse to hire or to discharge any individual because of such individual's age if such action is taken--

(1) with respect to the employment of an individual as a firefighter or as a law enforcement officer, . . . and the individual has attained--

(A) the age of hiring or retirement, respectively, in effect under applicable State or local law on March 3, 1983; . . .

* * *

[and]

(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.

29 U.S.C.A. sec. 6230(j). The 1996 amendment was retroactive to December 31, 1993, the date on which the 1986 provision had expired. See 29 U.S.C. sec. 623 (1999), Note: Effective and Termination Dates, 1996 Acts; 100 Stat. 3009-25. In contrast to the 1986 amendment, the 1996 amendment contained no sunset provision. Nor did it contain any language exempting pending litigation from the amendment.²

Taking advantage of this revision in the ADEA, Illinois (but not Elmhurst) subsequently reimposed an age limit for the employment of law enforcement personnel and firefighters. Effective August 17, 1997, more than two years after Elmhurst rejected Kopec for full-time employment, Illinois reinstated the under-35 rule for hiring. P.A. 90-481; see 65 ILCS 5/10-2.1-6(a).³

Invoking the 1996 amendment, the defendants moved for summary judgment on Kopec's age- discrimination claim, arguing that even if their decision not to hire Kopec for full-time employment was based upon his age, the ADEA did not apply; and Judge Levin agreed.⁴ As of March 3, 1983 (the date referenced by the statute), Illinois law required full-time police hires to be under the age of 35. Kopec was ten years older than that when he applied for full-time employment in 1994. Consequently, the express terms of section 623(j) exempted Elmhurst from the ADEA's ban on age discrimination. 8 F. Supp. 2d at 1085.

Kopec posed two threshold arguments against application of the amendment, but the court found these unavailing. First, looking to the legislative history, Kopec argued that the 1996 amendment was merely an invitation for state and local governments to consider whether age-based restrictions were appropriate. The judge found it unnecessary to examine the history behind the amendment, however, given the absence of ambiguity in the statutory language. Id. at 1086. Kopec also emphasized that by 1994, both Illinois and Elmhurst had abandoned the under-35 rule; but the court found the status of state and local law at that time to be irrelevant.

Plaintiff's claim rests on federal law, the ADEA. As...