Minch v. City of Chicago

Decision Date14 May 2007
Docket NumberNo. 05-2702.,05-2702.
Citation486 F.3d 294
PartiesJames D. MINCH and Richard A. Graf, Plaintiffs-Appellants, v. CITY OF CHICAGO, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Michael R. Karnuth (argued), Krislov & Associates, Chicago, IL, for Plaintiffs-Appellants.

Julian Henriques (argued), Office of the Corporation Counsel, Appeals Division, Chicago, IL, for Defendant-Appellee.

Before CUDAHY, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

More than two years after the City of Chicago (the "City" or "Chicago") agreed to discipline and discharge its firefighters solely for cause, the City adopted a Mandatory Retirement Ordinance ("MRO") compelling firefighters to retire at age 63. Two of the firefighters who were forced to retire under the MRO filed suit on behalf of themselves and others similarly situated, contending that mandatory retirement amounted to age discrimination prohibited by the Age Discrimination in Employment Act ("ADEA") as well as a deprivation of procedural due process. We concluded in Minch v. City of Chicago, 363 F.3d 615 (7th Cir.2004), that mandatory retirement of firefighters was not contrary to the ADEA. Today we conclude that mandatory retirement did not deprive the plaintiffs of their due process rights, because the collective bargaining agreement did not preclude the City from compelling its firefighters to retire at a particular age.


On January 14, 1998, the City and its firefighters entered into a collective bargaining agreement effective for the four-year term beginning July 1, 1995 and ending on June 30, 1999. More than five years later, on July 9, 2003, the parties entered into a successive agreement governing the period from July 1, 1999 through June 30, 2007. In each instance, following the execution of the agreement, the Chicago City Council enacted the agreement into law. In all material respects, these two agreements were identical, and for ease of discussion we shall henceforth treat them as a single agreement (the "CBA" or the "agreement"). We set forth the relevant terms of the agreement below.



Section 9.1 Seniority
A. Seniority is defined as an employee's length of continuous service since his last date of hire. . . .

. . .

C. An employee's continuous service and the employment relationship shall be terminated when an employee:

1. Resigns or quits . . . [;]

2. Is discharged for just cause;

3. Retires or is retired;

4. Is absent for three (3) consecutive days (workdays) without notifying the Employer's authorized representative;

5. Is laid off and fails to report for work within ten (10) calendar days after mailing . . . a notification of recall . . .;

6. Does not report to work after the termination of an authorized leave of absence, . . . .



Section 13.1 No Discrimination

. . . In accordance with applicable law, neither the Employer nor the Union shall discriminate against any employee covered by this Agreement because of race, creed, color, national origin, sex, age, religion or political affiliation.

. . .



. . .

Section 16.2 Discipline and Discharge

. . .

B. The Employer agrees that employees shall be disciplined and discharged only for just cause. . . .

. . .



The Employer agrees that this Agreement shall be immediately submitted to the City Council of the City of Chicago for ratification and concurrent adoption in ordinance form pursuant to the City's Home Rule authority. Such action by the Council shall commit the City of Chicago to enact no subsequent ordinances, executive orders or rules and regulations having the force and effect of law which would impair the binding effect of or make unenforceable the terms of this Agreement.

R. 112 Ex. A.

In the years preceding the parties' negotiation and adoption of the Agreement, federal age discrimination law had been in a state of flux with respect to age limits on public safety personnel. A more complete history is set forth in our opinion in Kopec v. City of Elmhurst, 193 F.3d 894, 896-98 (7th Cir.1999). Briefly, when Congress extended the ADEA to state and local governments in 1974, no exception was made for individuals employed as police officers and firefighters; consequently, age limits were permitted only to the extent that employers could establish that age was a bona fide occupational qualification for the job. See id. at 896. For a time, doubts remained as to whether the Tenth Amendment permitted Congress to subject state and local employees to federal anti-discrimination law. See id. at 896-97. Those doubts were put to rest by the Supreme Court's decision in E.E.O.C. v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983). In 1986, however, Congress amended the ADEA to exempt from the statutory ban on age discrimination any state or local age limits on public safety personnel which were in place as of March 3, 1983, the day after the Wyoming case was decided. Id. at 897. That exception expired by its terms on December 31, 1993, with the result that age limits for such personnel were once again presumptively invalid under the ADEA. Id. Then, in 1996, Congress reinstated the exemption retroactive to December 31, 1993 and with no expiration date. Id. at 898.

Seventy years ago, Chicago for the first time enacted an ordinance requiring those of its police and fire personnel holding civil service positions to retire at the age of 63. See Malloy v. City of Chicago, 369 Ill. 97, 15 N.E.2d 861, 863 (1938) (per curiam). After the ADEA was extended to state and local governments, and once the Supreme Court in E.E.O.C. v. Wyoming sustained that extension, Chicago raised the mandatory retirement age for its police officers and firefighters to 70, beyond which age the ADEA did not apply at that time. See Minch I, 363 F.3d at 618. After the 1986 exemption was adopted, Chicago in 1988 reinstated a mandatory retirement age of 63 for these personnel. Id. at 619. Following the expiration of the statutory exemption in 1993, the City again lifted the age cap in order to comply with the ADEA. Id. When the City and the firefighters' union came to terms on the CBA in 1998, the City had not yet restored a mandatory retirement age for its police and fire personnel, although Congress had again authorized such age caps in 1996. Not until May 2000 did the City finally take advantage of the exemption to put the mandatory retirement age of 63 back into place. Id. at 620; see Chicago, Ill. Municipal Code § 2-152-410.

On December 31, 2000, the effective date of the reinstated age limit, the two named plaintiffs in this action, James D. Minch and Richard A. Graf, were required to retire from the Chicago Fire Department against their wishes. Minch was 64 at that time; Graf was 63.

Minch and Graf1 then filed suit against the City on behalf of a class of similarly situated firefighters contending, among other things, that enforcement of the City's MRO violated the ADEA and deprived them of their Fourteenth Amendment right to due process.2 After the district court (Hon. Elaine E. Bucklo) denied the City's motion to dismiss these claims, Drnek v. City of Chicago, 192 F.Supp.2d 835 (N.D.Ill.2002) ("Drnek I"), the court certified for interlocutory appeal the question of whether a state or local ordinance compelling the retirement of public safety personnel at a particular age which otherwise meets the criteria of the statutory exemption set forth in 29 U.S. § 623(j)(1) could be proven to constitute a subterfuge to evade the purposes of the ADEA and thus be actionable under section 623(j)(2), Drnek v. City of Chicago, 205 F.Supp.2d 894 (N.D.Ill.2002) ("Drnek II"). We concluded in Minch I that the answer to that question was yes, but that the facts alleged in this case did not support a viable subterfuge claim. 363 F.3d at 628-30. When the City reinstated a mandatory retirement age for its firefighters, we reasoned, it took action that was expressly authorized by the ADEA. Even if, as the plaintiffs alleged, City officials adopted the MRO based on outdated, inaccurate, and biased assumptions about the abilities of older workers, their motives were not sufficient to establish an actionable subterfuge, given the express Congressional authority they had been given to impose age limits on the employment of public safety personnel. Id. at 628-29. Rather, to establish subterfuge, the plaintiffs would have to show that the City enacted and enforced the MRO as a means of evading a separate, substantive provision of the ADEA. See id. at 630 (discussing hypothetical scenarios that might show subterfuge). This was a showing that the plaintiffs, on the facts alleged in this case, were unable to make. Id. Accordingly, we remanded the case to the district court with directions to dismiss Minch and Graf's ADEA claim and to conduct further proceedings consistent with this court's opinion. Id. at 631.

With the ADEA claim out of the case, what remained was the plaintiffs' Fourteenth Amendment due process claim. The due process claim is premised on the notion that the terms of the CBA, to which the City had contractually and legislatively bound itself, precluded the City from summarily forcing any firefighter to retire based solely on his or her age and gave the firefighters a protected property interest in continued employment absent good cause to discharge them. Section 16.2(B) of the CBA reflected the City's agreement "that employees shall be disciplined and discharged only for just cause." (Emphasis ours.) In the plaintiffs' view, involuntary retirement amounts to a discharge, and as such was an action the City could only take with just cause — age alone would not suffice. The plaintiffs also construe two additional provisions of the CBA to have precluded the City from adopting the MRO: Section 13. 1, which prohibited the City and the...

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