Minch v. City of Chicago

• Decision Date: 09 April 2004
• Docket Number: No. 02-2587.,02-2587.
• Citation: 363 F.3d 615
• Parties: James D. MINCH, Richard A. Graf, and Richard Cosentino, Plaintiffs-Appellees, v. CITY OF CHICAGO, Defendant-Appellant. Donald Drnek, Plaintiff-Appellee, v. City of Chicago, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

363 F.3d 615

James D. MINCH, Richard A. Graf, and Richard Cosentino, Plaintiffs-Appellees, v. CITY OF CHICAGO, Defendant-Appellant.

Donald Drnek, Plaintiff-Appellee, v. City of Chicago, Defendant-Appellant.

No. 02-2587.

United States Court of Appeals, Seventh Circuit.

Argued February 28, 2003.

Decided April 9, 2004.

Rehearing and Suggestion for Rehearing En Banc Denied May 5, 2004.

Joan Matlack (Argued), Futterman & Howard, Chicago, IL, for Plaintiffs-Appellees.

Myriam Zreczny (Argued), Office of the Corporation Counsel, Chicago, IL, for Defendant-Appellant.

Laurie A. McCann, AARP Foundation Litigation, Washington, DC, for Amicus Curiae.

Before POSNER, MANION, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

In 1996, Congress restored to the Age Discrimination in Employment Act ("ADEA") an exemption permitting state and local governments to place age restrictions on the employment of police officers and firefighters. See 29 U.S.C. § 623(j) (1994 & Supp V 1999). Four years later, the Chicago City Council exercised its authority under this exemption to reestablish a mandatory retirement age of 63 for certain of the City's police and fire-fighting personnel. Police officers and firefighters who were subject to the age restriction filed two suits asserting in relevant part that the reinstated mandatory retirement program amounted to subterfuge to evade the purposes of the ADEA. See § 623(j)(2). Although the text of the City's ordinance indicated that the City was reestablishing a mandatory retirement age in furtherance of public safety, the plaintiffs asserted that in truth the City, as evidenced by the remarks of certain City Council members and City officials, acted out of bias against older workers and a desire to open positions on its police and firefighting forces for younger and more diverse individuals. The City moved to dismiss the complaints, contending that the plaintiffs had failed to state a claim of age discrimination on which the court could grant relief. The district court denied the motion, reasoning that if the plaintiffs could prove that the City reinstated a mandatory retirement age for discriminatory reasons, the mandatory retirement program would amount to a subterfuge to evade the purposes of the ADEA. Drnek v. City of Chicago, 192 F.Supp.2d 835 (N.D.Ill.2002) ("Drnek I"). The court subsequently certified for interlocutory appeal the question of whether there is any evidence through which a plaintiff might prove that a mandatory retirement program, so long as it satisfies the other criteria specified by the statutory exemption, see § 623(j)(1), constitutes a subterfuge to evade the purposes of the ADEA. Drnek v. City of Chicago, 205 F.Supp.2d 894, 900 (N.D.Ill.2002) ("Drnek II"). Although we answer that question in the affirmative, we conclude that the particular theory of subterfuge that the plaintiffs pursue in this case is not viable. We accordingly remand with directions to dismiss their ADEA claims.

I.

Historically, Chicago, like many other state and local governments, has placed age limits on the employment of its police and firefighting personnel. As early as 1939, for example, Chicago's municipal code required city firefighters to retire at the age of 63.

As it was originally enacted in 1967, the ADEA by its terms did not apply to the employees of state and local governments. Congress amended the statute to include those employees in 1974. P.L. 93-259 § 28(a)(2), 88 Stat. 55, 74 (April 8, 1974). However, in view of the Tenth Amendment jurisprudence of the day, see National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), the constitutional validity of the amendment remained in doubt until 1983, when the Supreme Court held in E.E.O.C. v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), that the Tenth Amendment posed no obstacle to banning age discrimination by state and local governments.¹ State and local rules establishing maximum hiring and retirement ages for police officers and firefighters were now vulnerable to challenge; only if it could be shown that age was a bona fide occupational qualification for these positions would the rules survive scrutiny under the ADEA. See Kopec v. City of Elmhurst, 193 F.3d 894, 897 (7th Cir.1999). The Equal Employment Opportunity Commission ("E.E.O.C.") began to challenge these age limits as discriminatory. Chicago, seeing the handwriting on the wall, raised the mandatory retirement age for its firefighters and police officers to 70, the maximum age at which employees enjoyed the protection of the ADEA at that time.²

Responding to the concerns expressed by state and local governments, Congress in 1986 amended the ADEA to exempt the mandatory retirement of state and local police and firefighting personnel from the statute's coverage. P.L. 99-592 §§ 3, 4, 100 Stat. 3342, 3342-43 (Oct. 31, 1986). As we noted in Kopec, Congress enacted the exemption in recognition that there was, as of that time, no consensus as to the propriety of age limits on employees working in the realm of public safety. 193 F.3d at 903-04. The exemption thus permitted any state or local government which, as of March 3, 1983 (the day after the Supreme Court decided E.E.O.C. v. Wyoming), had in place age restrictions on the employment of police officers and firefighters, to restore those restrictions.³ In 1988, Chicago took advantage of the exemption and reinstated a mandatory retirement age of 63 for its firefighters and police officers.

Pursuant to a sunset provision in the 1986 legislation, the exemption permitting the reinstatement of these age limits expired at the end of 1993. P.L. 99-592 § 3(b), 100 Stat. 3342, 3342. In the ensuing years, Chicago, along with other state and local governments, were again compelled to drop their age restrictions on the employment of police and firefighting personnel.

In 1996, however, Congress reinstated the exemption, this time without any sunset provision, and retroactively to the date that the prior exemption had expired in 1993. P.L. 104-208 §§ 119(1)(b), 119(3)(b), 110 Stat. 3009, 3009-23 — 3009-25 (Sept. 30, 1996); see Kopec, 193 F.3d at 898. The 1996 legislation also broadened the exemption, allowing cities and states which had not imposed age restrictions on their police and firefighters prior to the Wyoming decision to enact such limits. As relevant here, the exemption, codified at 29 U.S.C. § 623(j),⁴ permits a public employer to discharge a police officer or firefighter based on his age, subject to two principal conditions. First, section 623(j)(1) specifies that the employee must have attained either the age of retirement that the state or municipality had in place as of March 3, 1983 or, if the age limit was enacted after the date the 1996 exemption took effect, the higher of the retirement age specified in the post-1996 enactment or the age of 55. Second, section 623(j)(2) requires that the state or city discharge such an employee pursuant to a bona fide retirement plan that is not a subterfuge to evade the purposes of the statute.

Four years later, the Chicago City Council adopted a mandatory retirement ordinance ("MRO") reinstating a mandatory retirement age of 63 for its police officers and for its uniformed firefighting fire personnel.⁵ In the preamble to that ordinance the City Council indicated that its purpose in restoring the retirement age was to protect the safety of Chicago residents.⁶

The four plaintiffs were Chicago police officers and uniformed firefighters who were 63 or greater when the MRO took effect and thus were forced to take immediate retirement. They filed two actions against the City asserting, in relevant part, that the City was not actually motivated by public safety purposes in enacting the MRO. The cases were consolidated in the district court. Although the plaintiffs do not dispute at this juncture that the MRO and their involuntary retirement pursuant to the MRO satisfy the criteria set forth in section 623(j)(1), they allege that the MRO amounts to a subterfuge to evade the purposes of the ADEA and for that reason amounts to illegal age discrimination. Among other motives for enacting the MRO, the plaintiffs assert, the City wanted to get rid of what one city council member described as "old-timers" and "deadbeats" in the police and fire departments and to make room in those departments for younger, more racially and ethnically diverse individuals who would work harder and bring "fresh" ideas with them. This amounts to age discrimination in violation of the ADEA, in the plaintiffs' view.

The district court denied the City's motion to dismiss the plaintiffs' ADEA claims. Drnek I, 192 F.Supp.2d at 843-46. In the court's view, the question of whether the city reinstated a mandatory retirement age of 63 as a subterfuge for age discrimination was one of fact that necessitated inquiry beyond the statement of purpose set forth in the preamble to the MRO into the true motive or motives behind the legislation. Id. at 844-45. "Age-based retirement is tolerated in limited circumstances under § 623(j), but not for the wrong reasons, i.e. not for reasons that are merely a coverup for the type of ageism prohibited by the ADEA." Id. at 845. Here, the plaintiffs were able to point to the remarks of the sponsor of the MRO and of high-ranking city officials as proof that the City may have been motivated impermissibly by stereotypes and bias against older members of the police and fire departments when it enacted the MRO. The plaintiffs also represented that the City had delayed reinstating the retirement age of 63 until after a close friend of the Mayor (who otherwise would have been forced to retire) voluntarily retired at age 68. The district court found these allegations, suggesting that the City did not actually enact the...