Roche v. City of Chicago, 93-2737

• Decision Date: 06 May 1994
• Docket Number: No. 93-2737,93-2737
• Citation: 24 F.3d 882
• Parties: 64 Fair Empl.Prac.Cas. (BNA) 1077, 64 Empl. Prac. Dec. P 43,026 Thomas ROCHE, William Foley and Joseph Brichetto, Plaintiffs-Appellees, v. CITY OF CHICAGO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 882

24 F.3d 882

64 Fair Empl.Prac.Cas. (BNA) 1077,

64 Empl. Prac. Dec. P 43,026

Thomas ROCHE, William Foley and Joseph Brichetto, Plaintiffs-Appellees, v. CITY OF CHICAGO, Defendant-Appellant.

No. 93-2737.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 11, 1994.

Decided May 6, 1994.

Mary Stowell, Linda Friedman (argued), Leng, Stowell, Friedman & Vernon, Chicago, IL, for plaintiff-appellee.

Lawrence Rosenthal, Deputy County Counsel, Benna R. Solomon, Julian Henriques (argued), Susan S. Sher, Office of the Corp. Counsel, Appeals Div., Chicago, IL, for defendant-appellant.

Gwendolyn Young Reams, E.E.O.C., Washington, DC, James R. Neely, Jr., E.E.O.C., St. Louis, MO, Carolyn L. Wheeler, Dori K. Bernstein (argued), E.E.O.C., Office of Gen. Counsel, Washington, DC, for amicus curiae.

Before BAUER, FLAUM and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

Appellees were Deputy Fire Commissioners for the City of Chicago. They were mandatorily retired by the City under an amended retirement ordinance passed in March 1988 that set the maximum age for uniformed service in the fire department at sixty-three years. After an administrative charge was adequately pursued with the Equal Employment Opportunity Commission (EEOC), appellees brought suit against the City under the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621 et seq. (ADEA), which generally protects employees over the age of forty from age-based employment decisions. The City and appellees filed cross motions for summary judgment, the former claiming that its actions fell within an ADEA provision that excludes some forced retirement of firefighters from the statute's coverage, the latter arguing that the exemption was inapplicable. The district court agreed with the appellees and granted summary judgment in their favor. See Roche v. City of Chicago, 818 F.Supp. 233 (N.D.Ill.1993). After reviewing the matter de novo, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), we affirm.

The ADEA, originally enacted in 1967, was amended in 1974 to include state and local governments within the definition of "employer," thereby subjecting municipalities like Chicago to its strictures. See 29 U.S.C. Sec. 630(b). In 1983, the Supreme Court upheld the constitutionality of this extension of federal regulation in E.E.O.C. v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), and soon thereafter the EEOC embarked upon an enforcement effort targeting public employee mandatory retirement laws. In response to a spirited reaction from state and local governments, Congress, in 1986, enacted a grace period in which the hiring and retiring of firefighters and law-enforcement officers would be exempted from ADEA coverage if carried out in accordance with applicable state or local age restrictions on the books when the Wyoming decision was handed down. ¹ See Knight v. Georgia, 992 F.2d 1541, 1544 (11th Cir.1993). The exemption, originally codified as 29 U.S.C. Sec. 623(i) and subsequently recodified as 29 U.S.C. Sec. 623(j), reads 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 the age of hiring or retirement in effect under applicable State or local law on March 3, 1983....

It is undisputed that Chicago Deputy Fire Commissioners are "firefighters" within the meaning of the exemption and this dispute has therefore centered on whether the appellees had "attained the age of ... retirement in effect under applicable ... local law on March 3, 1983" when they were involuntarily retired in 1988 and 1989.

On March 3, 1983, Chicago Municipal Code Sec. 25-37 read Retirement age for policemen and firemen. The age of sixty-three years shall be the maximum age for legal employment of policemen and firemen in the classified career service of the city. Every policeman and every fireman in the classified career service of the city who has attained the age of sixty-three years shall forthwith and immediately be retired from service. ²

In the wake of Wyoming, Chicago amended the ordinance to raise the retirement age for "members of the uniformed service of the Fire Department in the classified career service of the City" to seventy. See Chicago Mun.Code Sec. 25-37 (1984). (Until 1986 the ADEA did not cover individuals over seventy). In 1988, after Congress had enacted the Sec. 623(j) exemption, Chicago amended the ordinance again, lowering the retirement age for "every member of the uniformed service of the fire department" back to sixty-three. See Chicago Mun.Code Sec. 26-37 (1988) (recodified as Sec. 2-152-410 (1990)). Appellees Foley and Roche, having already turned sixty-three, were retired upon passage of the 1988 amended ordinance. Appellee Brichetto was immediately retired when he turned sixty-three the following year.

Deputy Fire Commissioners are unquestionably members of the "uniformed service of the Fire Department" under the 1988 amended ordinance, see Chicago Mun.Code Sec. 2-36-020, and thus the forced retirement of appellees was carried out in accordance with municipal law. But was existing municipal law, and the actions taken thereunder, in accordance with federal law, which required that age-based mandatory retirement be measured against 1983 standards? That is, under the ordinance effective on March 3, 1983, did appellees qualify as "firemen in the classified career service," who could be mandatorily retired at age sixty-three? The City asserts that appellees were covered by this ordinance and therefore their forced retirement on the basis of having reached the age of sixty-three was legal. Appellees argue, and the district court concluded, that the 1983 ordinance did not extend to Deputy Fire Commissioners and therefore their age-based mandatory retirement is not saved from the ADEA's general prohibition against age-conscious employment decisions.

The City does not contest that according to Rule III of its Personnel Rules Deputy Fire Commissioner is considered to be a "Position[ ] Exempt from the Career Service." The Rule is consistent with Chicago Municipal Code Sec. 2-74-030(7) & (13) which establishes that "firefighters above the rank of battalion chief" (which Deputy Fire Commissioners are) are not "Career service employees." As the language is clear, one would think this case is simple: Deputy Fire Commissioners are not career service employees; they are not covered by the 1983 ordinance which allows the City to retire career service employees at sixty-three; because the City does not point to any other 1983 law that authorizes the involuntary retirement of sixty-three year-old Deputy Fire Commissioners, ³ the Sec. 623(j) exemption is not a safe harbor for the forced retirement of appellees.

The City, determined not to capitulate so easily, offers a (unpersuasive) rejoinder. In the City's preferred locution, appellees are "double-rank" officers, or in appellees' phrasing, they possess a "reversionary interest" in the career service. That is, appellees at one time held career service positions from which they were granted leaves of absence, pursuant to City Personnel Rule XI, Sec. 1(b), so that they could accept their Deputy Commissioner appointments. One need not rise from within the career service ranks of the fire department in order to be eligible for the post of Deputy Fire Commissioner, but one who does make the internal ascent must request a leave of absence without pay from his prior career service position or be subject to discharge. Significantly, in the City's eyes, an appointee may seek to return to the career service from leave and is entitled to reinstatement in his former position or a similar position, or, if no vacancy exists or if the department head does not desire to fill one, his name is placed on a reinstatement list according to his career service seniority. When a department head wishes to fill a vacancy, reinstatement lists are referred to after lay-off lists and before duty disability, promotional and general employment lists. See City Personnel Rule VIII. One's name is removed from a reinstatement list if one declines an offer of reinstatement or if no offer is made for twelve consecutive months. See City Personnel Rule VII, Sec. 6(b).

The City does not directly argue that these privileges indicate that the 1983 ordinance's reference to firemen in the "career service" encompasses firemen who are not in the career service (but once were and could be again). Rather, the City argues that such an interpretation is a reasonable one that the City had in fact followed and actual practice corresponding with a reasonable reading of 1983 local law is all that Sec. 623(j) demands. The City's creative reading of the exemption goes like this: the statute asks what retirement age was "in effect under applicable ... local law on March 3, 1983"; a particular retirement age is "in effect" if it is actually enforced; and it is in effect "under applicable ... law" if the actual enforcement is carried out, in the City's words, "under color of law." This is, in our opinion, a rather tortured construction, warranting little comment. "[T]he age of ... retirement in effect under applicable State or local law on March 3, 1983" plainly refers to the retirement age established, not merely arguable, under local law. The single, albeit somewhat inartful, phrase "in effect under applicable ... law" most obviously means "as provided by law" and does not denote a spongy, two-step inquiry of the sort the City suggests. Such is implicit in the cases applying the provision, see, e.g....