Heiar v. Crawford County, Wis.

• Decision Date: 25 October 1984
• Docket Number: 83-2149,Nos. 83-1872,83-2166 and 83-3139,s. 83-1872
• Citation: 746 F.2d 1190
• Parties: 35 Fair Empl.Prac.Cas. 1458, 36 Fair Empl.Prac.Cas. 112, 35 Empl. Prac. Dec. P 34,614 Wesley N. HEIAR, Kenneth I. Strauman, and Myrl E. Brown, Plaintiffs-Appellees, Cross-Appellants, v. CRAWFORD COUNTY, WISCONSIN, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1190

746 F.2d 1190

35 Fair Empl.Prac.Cas. 1458,

36 Fair Empl.Prac.Cas. 112,

35 Empl. Prac. Dec. P 34,614

Wesley N. HEIAR, Kenneth I. Strauman, and Myrl E. Brown, Plaintiffs-Appellees, Cross-Appellants, v. CRAWFORD COUNTY, WISCONSIN, Defendant-Appellant, Cross-Appellee.

Nos. 83-1872, 83-2149, 83-2166 and 83-3139.

United States Court of Appeals, Seventh Circuit.

Argued April 5, 1984.

Decided Aug. 20, 1984.

Rehearing and Rehearing En Banc

Denied Sept. 27, 1984.

As Amended Oct. 25, 1984.

Robert M. Hesslink, Jr., Dewitt, Sundby, Huggett & Schumacher, Madison, Wis., for plaintiffs-appellees, cross-appellants.

David Leo Uelmen, Goldberg, Previant, Uelmen, Grant, Miller & Brueggeman, Madison, Wis., for defendant-appellant, cross-appellee.

Before POSNER and COFFEY, Circuit Judges, and GIBSON, Senior Circuit Judge. ^*

POSNER, Circuit Judge.

Three deputy sheriffs (policemen) of Crawford County, Wisconsin brought suit against the County charging that its mandatory retirement age of 55 for policemen violated the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Secs. 621 et seq. 558 F.Supp. 1175 (W.D.Wis.1983). After a bench trial, the district judge gave judgment for the plaintiffs on their age discrimination claim (while dismissing their other claims and the other defendants), ordered the plaintiffs reinstated with back pay of $115,000 (after subtracting the other wages they had earned in this period, unemployment compensation they had received, and the extra retirement benefits they had gotten by being forced to retire at age 55), and awarded them attorney's fees of $29,000. The County has appealed, raising some novel questions, chiefly about the Act's two statutes of limitations; and the plaintiffs have cross-appealed, arguing that they should have received double damages because the defendants' violation of the Act was willful, that they are entitled to prejudgment interest on the back-pay awards, and that the award of attorney's fees was too small. Some of these arguments, too, raise difficult questions.

The County makes two significant challenges to the finding that it violated the Act: it argues that the suit is barred by either or both of the Act's statutes of limitations (unless both are satisfied, suit is barred), and that being under 55 is a bona fide occupational qualification for a Crawford County police officer. A third argument, that the Eleventh Amendment immunizes counties from having to pay federal money judgments, has no possible merit after Mackey v. Stanton, 586 F.2d 1126, 1130-31 (7th Cir.1978). The purpose of the Eleventh Amendment is to shield state treasuries from federal court judgments, and the financial interdependence between state and county government is not great enough to make the County an arm of the state for purposes of applying the Eleventh Amendment. Although Mackey dealt with counties in Indiana, not Wisconsin, Wisconsin counties appear to have a similar relationship to their state government. See Wis.Stat. Sec. 59.01(1). And all this assumes that the Eleventh Amendment is applicable to cases under the Age Discrimination in Employment Act. It is not, because the Act was an exercise of Congress's powers under section 5 of the Fourteenth Amendment. See EEOC v. Elrod, 674 F.2d 601, 609 (7th Cir.1982); Ramirez v. Puerto Rico Fire Service, 715 F.2d 694 (1st Cir.1983).

The Age Discrimination in Employment Act requires that charges be filed with the Equal Employment Opportunity Commission within 180 days after the alleged violation occurs. 29 U.S.C. Sec. 626(d). The plaintiffs filed charges within 180 days of the dates on which they were taken off the payroll because they had reached the mandatory retirement age, but (with the exception of plaintiff Brown) more than 180 days after they received individual notice that they would be let go upon reaching that age. After Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981) (per curiam), there can be very little doubt that the 180 days run from the date of notice, not discharge. Although Chardon involved a law of Puerto Rico rather than the Age Discrimination in Employment Act, all the Justices who wrote in Chardon, and all subsequent lower-court decisions, have assumed that its holding is applicable to the statutes of limitations in other federal employment-discrimination statutes. Mogley v. Chicago Title Ins. Co., 719 F.2d 289, 290 (8th Cir.1983), for example, cites Chardon en route to the conclusion that notice rather than discharge lights the 180-day fuse in the Age Discrimination in Employment Act. To the same effect see Price v. Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir.1982); Leite v. Kennecott Copper Corp., 558 F.Supp. 1170, 1172 (D.Mass.), aff'd without opinion, 720 F.2d 658 (1st Cir.1983), and Elliott v. Group Medical & Surgical Service, 714 F.2d 556, 563 (5th Cir.1983) (dictum).

Admittedly there is a paradox in applying a notice standard to a case challenging a mandatory retirement age. The defendants in such cases could argue that the statute of limitations began to run on the day the employee started work; for, as long as he is told then what the terms of his employment are, that is the day on which he receives "notice" that he will be unlawfully terminated. And maybe, on this view, if the employee learned of those terms before he signed on, the statute of limitations would begin to run before he began to work. Such arguments, if accepted, would unduly constrict employees' ability to enforce their rights under the Act. People do not want to begin their employment by suing their employer over a mandatory retirement age that is 30 years in the future for them; and in those few cases that were brought, the courts would be deciding disputes prematurely. And yet the argument is a plausible corollary to the idea that notice sets the statute of limitations running. But no court has pressed the logic of the notice approach so relentlessly, or is likely to do so; and we merely want to emphasize that, merely because a specific notice of termination, such as the plaintiffs in this case received, starts the 180-day statute of limitations running, it does not follow that the notice an employee receives when he is first hired would also set the statute to run; it surely would not.

Although two of the plaintiffs did receive specific notice of their impending termination more than 180 days before they filed their charges, they filed within 300 days, which was in time if Wisconsin is a "deferral" state, 29 U.S.C. Sec. 626(d)(2), defined as "a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice," 29 U.S.C. Sec. 633(b). Wisconsin does have an age discrimination law, Wis.Stat. Secs. 111.31 et seq., and an agency empowered to enforce it, see Wis.Stat. Secs. 111.33, 111.36 (now Secs. 111.375, 111.39). The problem is that the law as it read when the plaintiffs were forced to retire provided: "The prohibition against discrimination because of age shall not apply to hazardous occupations including, without limitation because of enumeration, law enforcement or fire fighting." Wis.Stat. Sec. 111.32(5)(e). This certainly appears to exempt the County, especially when the wording of the statute is compared to that of its successor (not involved in this case), which exempts "employment in which the employe is exposed to physical danger or hazard, including, without limitation because of enumeration, certain employment in law enforcement or fire fighting." Wis.Stat. Sec. 111.33(2)(f) (emphasis added). Since the reason for giving plaintiffs extra time to sue in deferral states is that the federal act requires anyone complaining about age discrimination in such states to begin state administrative proceedings as a precondition to bringing a federal suit, see 29 U.S.C. Sec. 633(b); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 753, 99 S.Ct. 2066, 2070, 60 L.Ed.2d 609 (1979), and since initiating such a proceeding would have been an act of utter futility here, the County has an argument that the 300-day limitation period does not apply.

But not a compelling argument. The bar of the statute of limitations ought not depend on something so uncertain as whether a particular type of age discrimination is within or without the state's age discrimination law; it should be enough that there is a law at least potentially applicable to the employer (as was not the case in Keitz v. Lever Bros. Co., 563 F.Supp. 230, 234 (N.D.Ind.1983) ), and an agency charged with enforcing it (as was not the case in Eklund v. Lubrizol Corp., 529 F.2d 247, 249 (6th Cir.1976) ). Otherwise, just to know how much time he had in which to bring a federal suit, a potential plaintiff would have to conduct research, sometimes in great depth, on the state law. True, a potential plaintiff may have to do some research just to know whether he is in a state that has an age discrimination law and an agency with enforcement powers, though state law may--Wisconsin law does, see Wis.Adm.Code Sec. Ind. 88.21--require employers to notify employees of their rights under the state's age discrimination law. But under the view pressed by the County the cautious plaintiff in any state would feel he had to file within 180 days, since he could not be positive whether his claim would come within the scope of his state's law and a mistake would be disastrous. The 300-day provision would be read out of the statute.

Moreover, the purpose of giving a state that has an age discrimination law a chance to respond to any age discrimination claim is to encourage the states to eliminate age discrimination without federal judicial intervention, and is served even in cases such as this where it is pretty clear that the state agency cannot help the claimant. The filing of a claim may alert the agency to an unintended gap or ambiguity...