Stoner v. Young
| Decision Date | 11 August 1980 |
| Docket Number | Civ. No. 79-74739. |
| Citation | 533 F. Supp. 561 |
| Parties | Leo STONER, Plaintiff, v. Coleman A. YOUNG, Mayor of the City of Detroit, and the City of Detroit, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Lisa Wenger, Detroit, Mich., for plaintiff.
George G. Matish and Michael A. Hurvitz, City of Detroit Law Dept., Detroit, Mich., for defendants.
In this civil action, plaintiff, a former employee of the defendant City of Detroit, claims that defendants discriminated against him on the basis of his age by forcing him to retire solely because of his age. His complaint, as amended, charges that this alleged discrimination was in violation of the Age Discrimination in Employment Act of 1967 (ADEA) as amended, 29 U.S.C. § 621 et seq., the Charter of the City of Detroit, the Constitution of the State of Michigan and the equal protection and due process clauses of the fourteenth amendment to the United States Constitution. The Court's jurisdiction has been invoked under 29 U.S.C. § 626(c). This matter is currently before the Court on cross motions for summary judgment. Plaintiff seeks summary judgment on his claim under the ADEA; defendants contend that they are entitled to summary judgment on all plaintiff's claims.
The facts, as they appear from the pleadings, depositions and exhibits, are as follows. Chapter VI, Title IX of the City of Detroit Charter contains the General Employees Retirement Plan, which establishes a retirement system for all non-uniformed city employees, with exceptions not pertinent here. At all times relevant to this suit, article VI, Part A, section 1.3 of the retirement plan provided, in pertinent part:
Any member, except an elected official of the City, who has attained or attains age sixty-five years shall be separated from service on the first day of the calendar month next following the month in which he attains age sixty-five years. Any such member may be continued in service for periods not to extend beyond his attainment of age sixty-nine years; provided, that his said continuance or continuances in service are (1) requested by him in writing, and (2) approved by his Department Head, and (3) approved by the Board of Trustees.
The provisions of the General Employees Retirement Plan were incorporated into a collective bargaining agreement dated July 30, 1975 between the City and the Senior Accountants, Analysts and Appraisers Association (S-AAA), the union to which plaintiff belonged. The duration clause of this agreement provided:
Neither party to this agreement has ever given notice of intention to terminate it or modify it and it is still in effect.
Plaintiff was first employed by the City on December 18, 1972, as a Semi-Senior Accountant with the City's Municipal Parking Authority. Prior to his 65th birthday, which was on August 24, 1978, plaintiff requested that he be allowed to continue as an employee beyond this date. Plaintiff was granted an extension of employment until December 24, 1978. By a notice dated October 2, 1978, plaintiff was informed that unless a further extension of service was approved, he was "subject to retirement on" January 1, 1979. Plaintiff requested a further extension of service but this request was denied.
The parties disagree over when plaintiff should be considered to have actually ceased his employment with the City. Defendants, relying on the deposition of the principal accountant of the City's Finance Department and the affidavit of the Senior Personnel and Payroll Clerk in the Parking Department, contend that plaintiff's last day of work was October 16, 1978 and, due to his accumulation of paid vacation time, the last day for which he was paid was December 29, 1978. Plaintiff takes the position that he was mandatorily retired on January 1, 1979, relying on the October 2 notice and defendants' statement in their answer that plaintiff's "last day as a City of Detroit employee was December 31, 1978." Answer, para. 19.
Defendants concede that plaintiff's forced separation from service as a city employee occurred solely because of his age.
Section 4(a)(1) of the ADEA, 29 U.S.C. § 623(a)(1), states:
Section 4(f)(2), 29 U.S.C. § 623(f)(2), provides an exception to this general rule. As originally enacted in 1967, section 4(f)(2) reads as follows:
(f) It shall not be unlawful for an employer, employment agency, or labor organization — (2) to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no such employee benefit plan shall excuse the failure to hire any individual ....
Section 12 of the ADEA, 29 U.S.C. § 631, defines the class of persons protected by the Act. As originally enacted it stated:
The prohibitions in this chapter shall be limited to individuals who are at least forty years of age but less than sixty-five years of age.
In United Air Lines, Inc. v. McMann, 434 U.S. 192, 98 S.Ct. 444, 54 L.Ed.2d 402 (1977), the Supreme Court held that section 4(f)(2) of the ADEA did not prohibit employers from forcing employees to retire because of their age, even if the employees were within the protected age class, as long as the forced retirements were pursuant to a "bona fide seniority system or any bona fide employee benefit plan." In so holding, the Court reversed a decision by the fourth circuit court of appeals which had held to the contrary. In the instant case, plaintiff does not challenge the bona fides of the City of Detroit's General Employee Retirement Plan.
Partly in response to judicial interpretations given section 4(f)(2), Congress passed the Age Discrimination in Employment Act Amendments of 1978. Pub.L.No. 95-256, 92 Stat. 189 (1978). Section 2(a) of the amendments amended section 4(f)(2) of the ADEA to read as follows:
The Senate Committee that considered the amendments expressed approval of the result reached by the fourth circuit court of appeals in McMann and indicated that the amendment of section 4(f)(2) was intended to make clear that that section was not intended to allow forced retirement based solely on age. Sen.Rep.No. 95-493, reprinted in 1978 U.S.Code Cong. & Ad.News 504, 513. The 1978 amendments also increased the upper age limit of the class protected by the ADEA to age 70. 29 U.S.C. § 631(a); Pub.L.No. 95-256, § 3(a), 92 Stat. 189 (1978).
As is evident from the above discussion, the success of plaintiff's ADEA claim depends on whether it is decided under the Act as originally enacted or as amended. If decided under the Act as originally enacted, plaintiff's claim must fail because (1) since he was over 65 at the time he was involuntarily retired, he was not within the protected class at that time, and (2) under the Supreme Court's decision in McMann, supra, any forced retirement required by the terms of bona fide retirement plan did not violate the ADEA. If plaintiff's claim is decided under the Act as amended, then it clearly is meritorious, because (1) plaintiff was younger than 70 at the time he was forced to retire and thus within the protected class, and (2) under section 4(f)(2) any forced retirement based solely on age violates the Act regardless of whether it is required by the terms of a bona fide retirement plan. Thus, the effective dates of the amendments are determinative of plaintiff's ADEA claim.1 Unfortunately, the issue is complicated by the fact that different sections of the amendments have different effective dates. Moreover, the effective date of the amendment to section 4(f)(2) is different for different classes of employees.
Section 2(b) of the 1978 amendments prescribes the effective date of the amendment to section 4(f)(2) of the ADEA. Section 2(b) states:
The amendment made by subsection (a) of this section which amended section 4(f)(2) to prohibit forced retirement even where mandated by a bona fide retirement plan shall take effect on the date of enactment of this Act April 6, 1978, except that, in the case of employees covered by a collective bargaining agreement which is in effect on September 1, 1977, which was entered into by a labor organization ... and which would otherwise be prohibited by the amendment made by section 3(a) of this Act which amended section 12 of the ADEA to increase the upper age limit of the protected class to 70 the amendment made by subsection (a) of this section shall take effect upon the termination of such agreement or on January 1, 1980, whichever occurs first.
The effective date of section 3(a) of the amendments, which increased...
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