U.S. E.E.O.C. v. City of Independence, Mo.

• Decision Date: 22 December 2006
• Docket Number: No. 05-4490.,No. 05-4489.,05-4489.,05-4490.
• Parties: UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, Richard Hopkins, Intervenor Plaintiff, v. CITY OF INDEPENDENCE, MISSOURI, Defendant-Appellee. AARP Foundation Litigation, Amicus Curiae on Behalf of Appellant. United States Equal Employment Opportunity Commission, Plaintiff, Richard Hopkins, Intervenor Plaintiff-Appellant, v. City of Independence, Missouri, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

471 F.3d 891 UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant,
Richard Hopkins, Intervenor Plaintiff,
v.
CITY OF INDEPENDENCE, MISSOURI, Defendant-Appellee.
AARP Foundation Litigation, Amicus Curiae on Behalf of Appellant.
United States Equal Employment Opportunity Commission, Plaintiff,
Richard Hopkins, Intervenor Plaintiff-Appellant,
v.
City of Independence, Missouri, Defendant-Appellee. No. 05-4489. No. 05-4490. United States Court of Appeals, Eighth Circuit. Submitted: September 28, 2006. Filed: December 22, 2006.

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Elizabeth Theran, Washington, D.C., argued, for Appellant EEOC, Kevin Graham, Liberty, MO, for Appellant Hopkins.

Matthew J. Gist, argued, Kansas City, MO, for Appellee.

Before WOLLMAN, BOWMAN, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

The Equal Employment Opportunity Commission (EEOC) and Richard W. Hopkins sued the city of Independence, Missouri, alleging constructive discharge and a violation of the Age Discrimination in Employment Act (ADEA) and Missouri Human Rights Act (MHRA). The district court granted summary judgment to the city on all counts. Having jurisdiction under 28 U.S.C. § 1291, this court reverses as to the age discrimination claim, but affirms on the constructive discharge claim.

I.

Under the city's "Leave Donation Program," employees may donate up to 40 hours of vacation, personal-business, and sick leave to other employees who have a medical condition preventing them from working and exhaust all paid leave. Qualified employees may receive up to 1,040 hours of donated leave, equal to six months' work.

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To qualify for the Program, an employee must (1) be approved for extended medical leave of absence, (2) be able to earn and use accrued sick leave hours, (3) successfully have completed the initial six-month probation, (4) exhaust vacation, personal-business, and sick leave, accrued holidays, and compensatory time, (5) not be receiving or entitled to receive long-term-disability benefits, and (6) "not be eligible for regular retirement." The city's Personnel Policies and Procedures Manual defines regular retirement eligibility as "age sixty (60)" and "vested" in the city's pension plan (requiring five years of local-government service).

Before the adoption of the Program in 1998, the city's Administrative Specialist informed the Personnel Board:

I have the following concerns about restrictions included in Paragraph 1 of the Proposed Leave Donation Program. "The employee must not be eligible for regular retirement." Even though eligible for regular retirement, that may not be what would be in the best interests of the City or the employee, i.e., if the employee will only be off for a few months. Regular retirement age is young. Including this appears to be a form of age discrimination.

Hopkins began working for the city as a Code Compliance Officer in 1994, which entails driving a truck to inspect property and investigate complaints. On November 4, 2002, Hopkins was hospitalized and diagnosed with ventricular tachycardia, a form of heart disease involving rapid heartbeat. Hopkins's physician determined that he was unable to drive for six months following any episode of VT.

City employees became aware of Hopkins's medical condition and began donating leave to him pursuant to the Program. The city's Human Resources Administrator told Hopkins, "I didn't know that you were that old," and that he was ineligible for the Program. Hopkins asked, "What do you mean?" The administrator responded, "Well, you're of retirement age, Richard, you're over 60. You can't draw donated leave time." As a result, Hopkins was denied participation in the Program.

On November 21, 2002, Hopkins and his wife met with his supervisor, the Human Resources Administrator, and other city personnel to discuss his options. Hopkins's wife avers: "During the meeting the City's Donated Leave Program was discussed and Richard was informed that he was ineligible to utilize the Program due to his age." Unable to drive due to his condition, Hopkins's options included clerical work, retirement, or accommodation under the Americans with Disabilities Act. Hopkins did not resume working, but used unpaid leave under the Family Medical Leave Act (FMLA) until it expired in January 2003.

On February 3, Hopkins indicated that his doctor would not release him to drive before May. He then applied for long-term-disability and requested to extend his FMLA leave. The city approved his extension for unpaid leave. On March 14, Hopkins again informed the city that his doctor had continued his driving restriction. On March 24, city officials met with him to discuss his options. The city summarized the meeting in a letter to Hopkins: "In our opinion, these options include: 1) resignation; 2) an Accommodation Request form be completed by April 7th; 3) retirement; and 4) long-term-disability." Later, he submitted his retirement papers, noting the submission was "under coercion and threat of losing my benefits." The city responded: "It was not and is not our intention to suggest that you be required to choose the option of retiring. For that reason, the City is holding your LAGERS retirement

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paperwork until April 28, 2003 to allow you time to reconsider your options." The record shows no further developments until Hopkins's retirement took effect on June 1, 2003.

II.

This court reviews de novo the grant of summary judgment, viewing the record most favorably to the non-moving party. See McClure v. Career Sys. Dev. Corp., 447 F.3d 1133, 1135 (8th Cir.2006); Cremona v. R.S. Bacon Veneer Co., 433 F.3d 617, 619 (8th Cir.2006). Summary judgment is appropriate if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); Knowles v. Citicorp Mortgage, Inc., 142 F.3d 1082, 1085 (8th Cir. 1998).

A.

Hopkins alleges he was disqualified from the Leave Donation Program because of his age, in violation of the ADEA. Hopkins's MHRA claim is analyzed under the same analysis as the ADEA claim. See Mathes v. Furniture Brands Int'l, 266 F.3d 884, 885 (8th Cir.2001).

The ADEA provides: "It shall be unlawful for an employer to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). In a disparate treatment case, liability depends on whether age actually motivated the employer's decision....