Settino v. City of Chicago

• Decision Date: 15 August 1986
• Docket Number: No. 85C 6666.,85C 6666.
• Citation: 642 F. Supp. 755
• Parties: Louis J. SETTINO, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

642 F. Supp. 755

Louis J. SETTINO, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants.

No. 85C 6666.

United States District Court, N.D. Illinois, E.D.

August 5, 1986.

On Motion for Reconsideration August 15, 1986.

Jeffrey Taren, Kinoy, Taren, Geraghty & Potter, Chicago, Ill., for plaintiffs.

Judson Miner, Corp. Counsel, Robert Karmgard, Asst. Corp. Counsel, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Louis Settino ("Settino"), Robert Wesolowski ("Wesolowski") and Carol Parker ("Parker") originally sued the City of Chicago ("City") and other defendants under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634,¹ challenging City's prohibition against persons over 35 years of age qualifying to become police officers. City moved alternatively for dismissal or summary judgment.² For the reasons stated in this memorandum opinion and order, this action is dismissed.

Facts

Two of the three original plaintiffs, Wesolowski and Parker, were under 40 when suit was filed. One, Settino, was over 40 and thus literally within ADEA's protected class (ages 40 through 69, Section 631(a)).

On June 17, 1985³ City announced the holding of an August 17 examination for qualification as a patrol officer with its Police Department. On June 19 Settino and Wesolowski sought to apply to take the examination but were turned down because they were over age 35. On June 26 Settino filed an age-discrimination charge with Equal Employment Opportunity Commission ("EEOC"). Wesolowski tried to do so the same day, but EEOC refused to entertain his charge because he was under 40 (actually 39½) years old.

On July 26 (less than 60 days after Settino's EEOC filing) this action was brought, in part seeking injunctive relief. At the July 29 hearing on plaintiffs' motion for a temporary restraining order ("TRO"), involving no evidentiary presentation, the judge to whose calendar the case was then assigned denied the TRO for lack of irreparable injury—stating accurately that if plaintiffs won on the merits, a second examination could be ordered.

In fact City did allow each of the named plaintiffs and all others who had opted into this action as consenting plaintiffs (see Section 626(b) and its cross-reference to Fair Labor Standards Act, 29 U.S.C. § 216(b)) to take the August 17 examination. In the meantime EEOC filed its own action on August 16 challenging the same over-35 policy. EEOC's suit was thus filed within the 60-day period after Settino's charge was filed with it.⁴

As the final relevant development disclosed by the by-now-stale memoranda of the parties, City later posted a new examination to be held October 5 for all persons between the ages of 21 and 69. That examination's results were to be merged with the results of the August 17 examination to form a single hiring list. Though not vital to this decision, it may be assumed City did take that action.

Prematurity of Plaintiffs' Action

Section 626(d)'s first sentence is short and—from City's point of view—sweet:

No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission.

For plaintiffs to stay in court, they must therefore find a way around the statute's literal language.

Since Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) only one Court of Appeals appears to have dealt with the issue in terms directly applicable here. Vance v. Whirlpool Corp., 707 F.2d 483 (4th Cir.), supplemented on reh'g, 716 F.2d 1010 (4th Cir.1983) gives Section 626(d) not only a literal but a jurisdictional reading that, if followed here, would deprive this Court of power to take plaintiffs' case as filed. At the conclusion of its extended discussion, Vance, 707 F.2d at 489 said:

We note finally that other circuits which have considered the question have held that the 60-day period of § 626(d) is jurisdictional and that the failure of the employee to comply with this waiting period will result in the dismissal of his private civil action. Wright v. Tennessee, 628 F.2d 949, 953 (6 Cir.1980) (en banc); Reich v. Dow Badische Co., 575 F.2d 363, 367-68 (2 Cir.1978); Cannon v. University of Chicago, 559 F.2d 1063, 1077 (7 Cir.1976) rev'd in part and remanded on other grounds, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). We agree with these circuits that the language of § 626(d) indicates that the 60-day notice period is jurisdictional, Ewald v. Great Atlantic & Pacific Tea Co., Inc., 620 F.2d 1183, 1187-88 (6 Cir.1980), and that the 60-day requirement is designed to assure the primacy of conciliation managed by the Department of Labor in the remedial scheme of the ADEA. See Reich, 575 F.2d at 368. Accordingly, we hold that the district court erred in equitably modifying this requirement and entertaining Vance's suit.

Despite its earlier decision in Cannon, our own Court of Appeals — dealing with the EEOC aspect of the administrative filing requirement — has more recently taken a less stringent approach. Drawing on Zipes' treatment of the administrative requirements under Title VII as nonjurisdictional, Stearns v. Consolidated Management, Inc., 747 F.2d 1105, 1110-11 (7th Cir.1984) held the ADEA administrative filing requirement not truly jurisdictional but rather a condition precedent to suit.

That difference in characterization, however, does not help plaintiffs. They did not, after all, satisfy the condition precedent to suit either: They did not wait the prescribed 60 days. Whether under the strict Vance test or the more forgiving Stearns reading, they were out of court when they began.

Nor can plaintiffs take advantage of the group of cases that have sometimes upheld earlier filing in discrimination cases during the statutory 60-day period, while the EEOC investigatory process is under way (see, e.g., Bailey v. Delta Air Lines, Inc., 722 F.2d 942, 944 (1st Cir.1983) and cases cited there). All those cases involved the exercise of equitable jurisdiction to preserve the status quo, allowing already-employed persons to protect their jobs against retaliatory discharge while EEOC was looking into the matter. By contrast, no extraordinary equitable bypassing of the clear mandate of Section 626(d) was required in this case.⁵ By making their demand and going to EEOC, plaintiffs forced City to act at its peril if it continued to adhere to its over-35 rule: As the prior judge held at the end of the TRO hearing, if plaintiffs were right on the merits City could have been forced to give them the same rights they would have been provided under the August 17 examination. In fact City did just that and more:

1. It allowed plaintiffs to take the August 17 examination.

2. To deal with all persons who were in the same class as plaintiffs, it also announced a later examination open to all in the ADEA-protected class, with results of that exam to be merged with those in the August 17 examination.

Plaintiffs also advance a fallback position, urging their suit should be treated as alive, but in limbo, until the 60-day period had passed. They seek to analogize the situation to that in which like relief was granted in Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979). But Oscar Mayer does not really give plaintiffs much comfort in that respect, for it specifically contrasted the administrative requirement covering state proceedings with the explicit provisions of Section 626(d) (441 U.S. at 762-63, 99 S.Ct. at), with at least the implication that failure to satisfy the latter would not lead to the same result of permitting the prematurely-filed lawsuit to remain pending until the administrative time clock had run.

More importantly, and as a truly dispositive factor, it was within the statutory 60-day period that EEOC filed its own lawsuit, EEOC v. City of Chicago, 85 C 7281 (N.D.Ill.). Section 626(c)(1), the very provision that authorizes private rights of action under ADEA, goes on to state:

Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Equal Employment Opportunity Commission to enforce the right of such employee under this chapter.

Under plaintiffs' own theory that their action could come into being as a viable lawsuit when the 60 days were up (somewhat like a springing use in the common law of future interests), plaintiffs' right to sue would have terminated under Section 626(c)(1) before it arose. That would foreclose this action's deferred blossoming into life August 26 (60 days after Settino's filing). It is therefore unnecessary for this Court to determine whether it would choose to follow Jones v. City of Janesville, 488 F.Supp. 795, 797 (W.D.Wis.1980), which held an earlier-filed individual ADEA lawsuit preempted by EEOC's later filing of its own action (and would thus dictate the same result of dismissal here).

One final point bears mention. Plaintiffs advance the novel position Wesolowski could sue before the 60-day period expired because that period never began for him— because he was not allowed to file with EEOC. That is unpersuasive for more than one reason, but one compelling reason is the false premise on which the contention rests (Plaintiffs' Mem. 6) (emphasis of "after" in original, emphasis of "may" added; footnote omitted):

Defendants have asserted that because plaintiff Wesolowski was only 39¾ years old at the time he was barred from applying to take the police exam, he lacks standing to assert a violation of the Age Discrimination in Employment Act. They make this assertion despite the fact that it is uncontested that the decision whether to hire Wesolowski would not be made until after he turned 40. It is also beyond dispute that unless Wesolowski was allowed to take the 1985 police examination, he could not even be considered for employment at

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