Petrelli v. City of Mount Vernon

• Decision Date: 12 November 1993
• Docket Number: D,Nos. 254,374,s. 254
• Citation: 9 F.3d 250
• Parties: 63 Fair Empl.Prac.Cas. (BNA) 426, 63 Empl. Prac. Dec. P 42,691 Robert PETRELLI, Plaintiff-Appellee-Cross-Appellant, v. CITY OF MOUNT VERNON, Defendant-Appellant-Cross-Appellee. ocket 93-7338, 93-7340 (XAP).
• Court: U.S. Court of Appeals — Second Circuit

Page 250

9 F.3d 250

63 Fair Empl.Prac.Cas. (BNA) 426,

63 Empl. Prac. Dec. P 42,691

Robert PETRELLI, Plaintiff-Appellee-Cross-Appellant, v. CITY OF MOUNT VERNON, Defendant-Appellant-Cross-Appellee.

Nos. 254, 374, Docket 93-7338, 93-7340 (XAP).

United States Court of Appeals, Second Circuit.

Argued Sept. 13, 1993.

Decided Nov. 12, 1993.

Terrence O'Neil, Rains & Pogrebin, P.C., Mineola, NY, for defendant-appellant-cross-appellee.

David J. Sutton, Garden City, NY, for plaintiff-appellee-cross-appellant.

Before: OAKES and MAHONEY, Circuit Judges, and MISHLER, District Judge. ^*

MISHLER, District Judge:

This case comes before us on appeal by defendant City of Mount Vernon and cross-appeal by plaintiff Robert Petrelli from a grant of summary judgment in favor of Petrelli by the United States District Court for the Southern District of New York (Duffy, J.). Petrelli v. City of Mount Vernon, 796 F.Supp. 748 (S.D.N.Y.1992). For the reasons stated in this opinion, we reverse the judgment below, dismiss the cross-appeal, and remand with instructions that summary judgment be entered in favor of the defendant.

BACKGROUND

This case arises out of Petrelli's claim under the Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec. 621 et seq. (the ADEA). Much of the factual setting of this case arose as a result of uncertainty in the state of the law. We will first lay out the legal background out of which this case grew, and then explain the factual setting, before proceeding to our analysis.

Legal Background

1. N.Y.Civ.Serv.L. Sec. 58(1)(a)

Section 58(1) of the New York Civil Service Law, the enforcement of which provides the basis for Petrelli's claim under the ADEA, states in pertinent part that:

Notwithstanding any other provision of this law or any general, special or local law to the contrary, no person shall be eligible for provisional or permanent appointment in the competitive class of the civil service ... as a police officer of any police force, or police department of any county, city, town ... or police district unless he shall satisfy the following basic requirements:

(a) he is not less than twenty nor more than twenty-nine years of age....

In McMahon v. Barclay, 510 F.Supp. 1114, 1117 (S.D.N.Y.1981), Judge Sand declared Sec. 58(1)(a) unconstitutional under the Equal Protection Clause of the Fourteenth Amendment, since the age requirement was not rationally related to a legitimate governmental interest. In response to McMahon, the New York State Civil Service Commission (the Commission) suspended enforcement of Sec. 58(1)(a) from September 1981 through January 1987. The City of Mount Vernon, following the Commission's lead, also suspended enforcement of Sec. 58(1)(a).

Soon after McMahon, two further cases concerning Sec. 58(1)(a) were decided. In Colon v. City of New York, 535 F.Supp. 1108, 1113 (S.D.N.Y.1982), Judge Leval found that Sec. 58(1) did not violate equal protection and awarded summary judgment to the defendant. And in Sica v. County of Nassau, 36 Fair Empl.Prac.Cas. (BNA) 369, 1982 WL 31011 (E.D.N.Y.1982), then-District Judge Pratt found that Sec. 58(1)(a) "is rationally related to a valid legislative goal", expressly disapproving Judge Sand's holding in McMahon. While the status of Sec. 58(1) was far from settled, it is clear that there was much confusion about its constitutional status.

2. The ADEA

The ADEA was enacted in 1967 to combat age discrimination in employment settings. 29 U.S.C. Sec. 621 (1988). During the period in question, it prohibited discrimination against those who had had a fortieth birthday but not a seventieth birthday. 29 U.S.C. Sec. 631(a) (1985). ¹ Since Sec. 58(1)(a) discriminated against anyone over the age of 29, it was unclear how the ADEA interacted with that section.

In 1985, this Court held in Hahn v. City of Buffalo, 770 F.2d 12 (2d Cir.1985), aff'g 596 On March 2, 1983, the Supreme Court had decided in EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), that the ADEA applied to state and local public safety officers. See H.R.Rep. No. 756, 99th Cong., 2d Sess. 6 (1986). In response, Congress amended the ADEA to allow the States to discriminate on the basis of age in the hiring of police officers and firefighters. 29 U.S.C. Sec. 623(j) (1988). Section 623(j) allowed a state or local government employer, as of January 1, 1987, to discriminate based on the age of an applicant for a public safety officer position if "the individual has attained the age of hiring ... in effect under applicable State or local law on March 3, 1983...." The amendment superseded this Court's decisions in Hahn and Doyle. Thus employers, including States and localities, that had a maximum age requirement in effect on March 3, 1983 could impose that requirement subsequent to January 1, 1987 and until December 31, 1993. ²

F.Supp. 939 (W.D.N.Y.1984), that the ADEA applied to invalidate application of Sec. 58(1)(a) to persons between 40 and 70 years old. In discussing the geographic scope of the opinion (it was to cover all of New York State), the panel was somewhat unclear as to whether New York was precluded from enforcing Sec. 58(1)(a) at all, or only with respect to those covered by the ADEA, i.e., those over 40 years old. Id. at 15. Finally, in Doyle v. Suffolk County, 786 F.2d 523 (2d Cir.), cert. denied, 479 U.S. 825, 107 S.Ct. 98, 93 L.Ed.2d 49 (1986), this Court held that the ADEA did not invalidate Sec. 58(1)(a) with respect to persons between 29 and 40 years old. Id. at 528. The court further held that the application of Sec. 58(1)(a) to persons between the ages of 29 and 40 did not violate the Equal Protection Clause of the Fourteenth Amendment. Id. at 528-29.

Factual Background

In July 1985, Petrelli sat for the civil service examination in response to an official recruitment announcement by the Municipal Civil Service Commission of the City of Mount Vernon (the MCSC). In its announcement, the MCSC stated under "Minimum Qualifications" that "[p]ursuant to the [ADEA], there is no maximum age limitation required by the City of Mount Vernon." (emphasis in original). At the time he took the exam, Petrelli was 40 years old. In May 1986, after passing the written and physical exams, Petrelli was placed on the civil service eligible list. He ranked 55 out of approximately 300 candidates.

On February 3, 1987, the MCSC advised Petrelli that, in response to both Doyle and the ADEA amendment (i.e., 29 U.S.C. Sec. 623(j)), his name was being removed from the eligible list for Police Officer. After learning of this development, Petrelli wrote several letters to the MCSC and the Commission. Among other things, he asked both the MCSC and the Commission whether Sec. 58(1) was in effect on March 3, 1983.

Petrelli received seemingly conflicting responses. In letters dated June 24 and September 22, 1987, the Commission stated that, although enforcement of Sec. 58(1) had been suspended in response to McMahon, the statute itself remained in effect. Mount Vernon responded in a letter to Petrelli dated September 14, 1988, that "[t]he City of Mount Vernon lifted its maximum age requirement in or about September, 1981," and that the "maximum age requirement was reinstated by the City of Mount Vernon on January 1, 1987." The City's letter also said that at the time of his application Mount Vernon "was not enforcing the maximum age requirement" but that in 1987 "State Law required that the maximum age requirement be reinstated." Id. In addition to communicating with the MCSC and the Commission, Petrelli also corresponded with the EEOC about his situation.

By letter from the City dated October 3, 1988, Petrelli learned that his appointment as a police officer had been passed over in favor of a younger candidate. On December 29, 1988, Petrelli filed a formal charge of age discrimination with the EEOC. On October 6, 1989, Petrelli filed the summons and complaint in this case. The case was originally before Judge Amon in the Eastern District of New York, but was transferred by stipulation of both parties to the Southern District,

where it was assigned to Judge Duffy, who granted summary judgment in favor of Petrelli on June 24, 1992. This appeal ensued.

DISCUSSION

On appeal from a grant of summary judgment, this Court determines de novo whether there is a genuine issue of material fact, and whether the moving party was entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Healy v. Rich Products Corp., 981 F.2d 68, 72 (2d Cir.1992); Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991); FED.R.CIV.PRO. 56(c). This case presents no disputed issues of fact. There is an issue with respect to the timeliness of Petrelli's claim. The main question presented, however, is whether Section 58(1)(a) of the New York Civil Service Law was in effect on March 3, 1983.

Was Petrelli's claim timely filed?

As a preliminary matter, Mount Vernon asserts that Petrelli's claim is time-barred, since he did not sue until more than two years after being notified on February 3, 1987, that his name was being removed from the eligible list. Petrelli responds by noting that it was not until October 3, 1989, that he was actually passed over in favor of a younger candidate, and that he filed suit with the EEOC on December 29, 1989, 87 days after he was first able to make out a prima facie case of discrimination. Neither position is wholly correct, but we hold that, under the circumstances of this case, Petrelli's claim is timely.

A complainant residing in New York State must file an age discrimination complaint with the EEOC "within 300 days after the alleged unlawful practice occurred". 29 U.S.C. Secs. 626(d)(2); 633(b). According to our decision in Economu v. Borg-Warner Corp., 829 F.2d 311 (2d Cir.1987), the 300-day period begins to run from the...