Case 1:01-cv-00840 Document 1 Filed 02/06/01 Page 1 of 13

:, "~,,,"1 Cl ~1 IN THE UNITED STATES DISTRICT COURT FOR THE -

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
l'l'-;
'- j

DONALD DRNEK,

)

)

Plaintiff

)

)

v.

)

No.

)

CITY OF CHICAGO,

)

JUDGE BUCKLO

an Illinois Municipal Corporation,

)

)

Trial by Jnry Demanded

Defendant

)

MAGliTRATE JUDGE ASHMAN

COMPLAINT

The plaintiff, Donald Dmek, by and through his attomeys, for his complaint agafJl~Kfrm

of Chicago, an Illinois Municipal Corporation, states as follows:

FEB 0 "{ 200I

THE PARTIES

1. Plaintiff Donald Dmek ("Dmek") is a citizen of the United States and a resident of

Chicago, Illinois. Dmek is a former police officer and former employee ofthe City ofChicago who

was wrongfully terminated or "involuntarily retired" on December 31, 2000 because of his age.

Plaintiff Dmek was age 65 at the time of his termination. PlaintiffDmek is an "employee" for the

purposes of the Age Discrimination in Employment Act ("ADEN'), 29 U.S.C. §630(f).

2. Defendant City of Chicago is an Illinois Municipal Corporation located within this

judicial district which maintains its own police force. The City of Chicago is an "employer" under

the ADEA, 29 U.S.C. §630(b).

JURISDICTION AND VENUE

3. This cause of action lies pursuant to Section 7 of the ADEA, 29 U.S.C. § 626.

4. Jurisdiction is based upon 28 U.S.C. § 1331 and 29 U.S.C. § 626.

Case 1:01-cv-00840 Document 1 Filed 02/06/01 Page 2 of 13
5. Venue is proper in this Court pursuantto 28 U.S.C. 1391(b) because the claim arose in this judicial district.
SUBSTANTIVE ALLEGATIONS A. Conditions Precedent Met 6. All conditions precedent to this action have been fulfilled. On September 19, 2000, Plaintiff timely filed a charge with the Equal Employment Opportunity Commission alleging age discrimination in termination (attached as Exhibit 1) and received his right to sue letter within the last ninety days (attached as Exhibit 2). B. Background 7. Plaintiff was born on May 22, 1935 and is 65 years old. 8. On or about July 1, 1957, plaintiff was hired by the City of Chicago as a police officer. 9. At all times pertinent hereto, plaintiffperformed his job duties as a police officer in a satisfactory manner. 10. Nevertheless, sometime in December 2000, plaintiff was informed that pursuant to an ordinance adopted by the City of Chicago on May 17, 2000, plaintiff was to be terminated or "involuntarily retired" because he was over the age of 63 years. 11. Beginning on or around September 30, 1996 and continuing to the present, there existed and continues to exist a legislatively-created "public safety" exception to the ADEA, 29 U.S.C. 623(j), which provides in relevant part:
(j) Employment as firefighter or law enforcement officer
2

Case 1:01-cv-00840 Document 1 Filed 02/06/01 Page 3 of 13
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, the employer has complied with section 3(d)(2) of the Age Discrimination in Employment Amendments of 1996 if the individual was discharged after the date described in such section, and the individual has attained-
(A) the age of hiring or retirement, respectively, in effect under applicable State or local law on March 3, 1983; or
(B) (i) if the individual was not hired, the age of hiring in effect on the date of such failure or refusal to hire under applicable State or local law enacted after September 30, 1996; or
(ii) if applicable State or local law was enacted after September 30, 1996, and the individual was discharged, the higher of-
en the age of retirement in effect on the date of such
discharge under such law; and
(II) age 55; and
(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.
12. On May 17,2000, the City ofChicago adopted an ordinance which amended Chapter
2-152-140 of the Municipal Code to read as follows:
(a) Effective December 31, 2000, the age of63 shall be the maximum age for employment of sworn members of the police department, including a sworn member who is transferred or appointed to a supervisory or administrative position.
***
3

Case 1:01-cv-00840 Document 1 Filed 02/06/01 Page 4 of 13
(d) All persons to whom this ordinance applies shall be retired upon attainment of age 63. Any person to whom this ordinance applies whose age is 63 or more on December 31, 2000 shall be retired upon that date.
Chicago Municipal Code 2-152-140 (hereinafter, the "Ordinance" or "Municipal Code"). 13. Following enactment of the Ordinance, plaintiff was tenninated by the City of
Chicago on December 31, 2000, the effective date of the Ordinance, for exceeding the mandatory retirement age.
C. The Real Purpose in Enacting the Ordinance 14. The purpose of Section 2-152-410 of the Municipal Code was not to promote the interests ofpublic safety. Rather, the Ordinance was enacted as a subterfuge to evade the purposes ofthe ADEA. The Ordinance was passed to accomplish objectives which were unrelated to public safety, through the mandatory retirement of police officers over the age of 63. 15. The enactment of Section 2-152-410 ofthe Municipal Code was for the purpose of eliminating from the ranks of the Police Department plaintiff and other police officers who had surpassed 63 years of age, among other reasons, to allow the City of Chicago to hire and promote younger officers within the City of Chicago Police Department.
COUNT I
AGE DISCRIMINATION IN TERMINATION 16. Plaintiff adopts and realleges paragraphs 1 through 15. 17. By enacting Municipal Code 2-152-410 and tenninating plaintiffs employment, defendant and its agents have willfully and intentionally discriminated against plaintiffon the basis of his age in a manner that acts as a subterfuge of the ADEA.
4

Case 1:01-cv-00840 Document 1 Filed 02/06/01 Page 5 of 13
18. Section 2-152-410 of the Municipal Code was not part of a bona fide hiring or retirement plan as required by Section 623(j) of the ADEA.
19. By tenninating plaintiffs employment, defendant knew and/or showed a reckless disregard for the matter of whether its conduct violated the ADEA.
20. As a result of the unlawful and willful acts complained of herein, Plaintiff has suffered loss ofemployment, wages, benefits, and other compensation, as well as emotional distress, embarrassment, humiliation, and other mental anguish.
COUNT II AGE DISCRIMINATION IN TERMINATION 21. Plaintiff adopts and realleges paragraphs 16-20. 22. In 1996, at the same time as it enacted the current provisions of29 U.S.C. Section
623 G) ofthe ADEA, Congress also enacted regulations requiring development and implementation
ofperfonnance tests for police officers attaining mandatory retirement age to detennine whether they are fit to continue their employment despite their age. The regulation, Public Law 104-208, 110 Stat. 3009-24 (Sept. 30, 1996), provides in relevant part:
***
(c) ADVISORY GUIDELINES.--Not later than 4 years after the date of enactment ofthis Act, the Secretary shall develop and issue, based on the results of the study required by subsection (a), advisory guidelines for the administration and use of physical and mental fitness tests to measure the ability and competency of law enforcement officers and firefighters to perfonn the requirements ofthe jobs of the officers and firefighters.
5

Case 1:01-cv-00840 Document 1 Filed 02/06/01 Page 6 of 13
(d) JOB PERFORMANCE TESTS. -(1) IDENTIFICATION OF TESTS.--After issuance of the advisory guidelines described in subsection (c), the Secretary shall issue regulations identifYing valid, nondiscriminatory job perfonnance tests that shall be used by employers seeking the exemption described in section 4(j) of the Age Discrimination in Employment Act of 1967 with respect to firefighters or law enforcement officers who have attained an age of retirement described in such section 4(j). (2) USE OF TESTS.--Effective on the date of issuance of the regulations described in paragraph (1), any employer seeking such exemption with respect to a firefighter or law enforcement officer who has attained such age shall provide to each frrefighter or law enforcement officer who has attained such age an annual opportunity to demonstrate physical and mental fitness by passing a test described in paragraph (1), in order to continue employment.
23. When read in conjunction with the above regulations, the spirit and letter of Section 423(j) provides an exception to the ADEA for mandatory retirement laws only when the officer can no longer meet the fitness requirements of his job.
24. Muuicipal Code §2-152-410, as written and as currently interpreted by the City of Chicago, is in direct contravention to Section 423(j) in that it fails to provide any officer, including plaintiff, with an opportunity to prove his fitness for duty. This is not the result intended or contemplated by Section 423(j).
6

Case 1:01-cv-00840 Document 1 Filed 02/06/01 Page 7 of 13
25. Consequently, Municipal Code §2-152-410 violates the ADEA and is void and unenforceable since the Federal law, in this case, preempts the Ordinance.
26. At no time was plaintiff ever offered the opportunity to prove his "physical and mental" fitness to remain on the job.
27. In the absence ofdetermining plaintiffs' mental and physical fitness for duty, the City of Chicago's termination of the plaintiff pursuant to Municipal Code Section 2-152-410 is in violation of the ADEA.
28. By terminating plaintiffs employment, defendant and its agents have willfully and intentionally discriminated against plaintiff on the basis of his age.
29. As a result of the unlawful and willful acts complained of herein, Plaintiff has suffered loss ofemployment, wages, benefits, and other compensation, as well as emotional distress, embarrassment, humiliation, and other mental anguish.
COUNT III FEDERAL DUE PROCESS - DECLARATORY AND INJUNCTIVE RELIEF 30. Plaintiff adopts and realleges paragraphs 21-29. 31. Section 2-152-410 ofthe Municipal Code is unconstitutionally vague in that it does not provide an opportunity for City of Chicago police officers, like plaintiff, who reach the age of 63, to demonstrate their fitness for duty. 32. Section 2-152-41 0 is unenforceable and void as written in violation ofthe Fourteenth Amendment of the Constitution of the United States (U.S.C.A. Const. Amend. 14). 33. Plaintiffhas no adequate remedy at law as he is currently 65 years old and every day that passes shortens his useful working life, which cannot be replaced. For the same reason, he has
7

Case 1:01-cv-00840 Document 1 Filed 02/06/01 Page 8 of 13
and continues to suffer irreparable injury due to his inability to work as a police officer, including not only the inability to earn the same type of living as before his tennination, but the inability to finish his career in his chosen profession.
34. As a result of the unlawful and willful acts complained of herein, Plaintiff has suffered loss ofemployment, wages, benefits, and other compensation, as well as emotional distress, embarrassment, humiliation, and other mental angnish, and loss ofhis useful working life as a police officer.
COUNT IV
ILLINOIS DUE PROCESS - DECLARATORY AND INJUNCTIVE RELIEF 35. Plaintiff adopts and realleges paragraphs 30-34. 36. Section 2-152-410 is unenforceable and void as written in violation of Article I, Section 2 of the Illinois Constitution. 37. Plaintiffhas no adequate remedy at law as he is currently 65 years old and every day that passes shortens his useful working life, which cannot be replaced. For the same reason, he has and continues to suffer irreparable injury due to his inability to work as a police officer, including not only the inability to earn the same type of living as before his tennination, but the inability to finish his career in his chosen profession. 38. As a result of the unlawful and willful acts complained of herein, Plaintiff has suffered loss ofemployment, wages, benefits, and other compensation, as well as emotional distress, embarrassment, humiliation, and other mental angnish, and loss ofhis useful working life as a police officer.
8

Case 1:01-cv-00840 Document 1 Filed 02/06/01 Page 9 of 13

PRAYER FOR RELIEF

WHEREFORE, PlaintiffDonald Drnek respectfully requests that this Court enter an order:

a. Declaring that Municipal Code Section 2-152-410 is in violation of, and superceded by, the ADEA, and is void and unenforceable;

b. Declaring that the conduct ofthe defendant as described herein is in violation of Section 7 of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et.seq.;

c. Awarding plaintiff the salary, with interest, that he has lost as a result of defendant's conduct;

d. Awarding plaintiff compensatory damages;

e. Awarding plaintiff reasonable attorneys' fees and costs;

f.

Declaring that City of Chicago Municipal Code Section 2-152-410 IS

unconstitutionally void and unenforceable on its face;

g. Issuing a mandatory injunction against Defendant requiring that plaintiffbe reinstated to his position as police officer with full back pay, salary, benefits, and seniority applicable to him on the date oftermination and subsequently as ifhe had remained employed today; and

h. Awarding plaintiff such other and further relief as this Court deems proper and just.

Date: February 6, 2001

Respectfully submitted,
" 1----One~e Attorneys for Plaintiffs

Clint Krislov Michael R. Karnuth KRISLOV & ASSOCIATES, LTD. Civic Opera Building, Suite 1350 20 North Wacker Drive Chicago, IL 60606 (312) 606-0500

9

Case 1:01-cv-00840 Document 1 Filed 02/06/01 Page 10 of 13
Ronald L. Futterman Joan Matlack FUTTERMAN & HOWARD, CHTD. 122 S. Michigan Ave., Suite 1850 Chicago, IL 60603 (312) 427-3600

[da C:\WPDOCS\Drnek\Complaint.wpd}

10

Case 1:01-cv-00840 Document 1 Filed 02/06/01 Page 11 of 13

JS 44 {Rev.

,t"l~61

CIVIL COVER SHEET

The JS-44 civil cover sheet and the Information contained herein neither replace nor supplement the filing and service of pleadings or other oaoers as I"9QUr

by law, except as provIded by local rules 01 court. This form, apprOVed by ltIe Judicial Conference 01 the United States in september, 974. lS required tor tne u

of the Cieri< of Court for the purpose of initiating the CIVil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM I

.

I. (8) PLAINTIFFS

DEFENDANTS

Donald Drnek

City of CWhAicaaJgSoTRATEJUU "r!.T:U ~ " ' -

(b) couNTY OF RESIDENCE OF FIRST USTED PLAINTIFF -::=C':--'o_o'-'-k'--
(EXCEPT IN U.S PLAINTIFF CASES)
(c) A'ITQRNEYS (FlI:jM NAME"ACOFlESS AND TELEPHONE NUMBER)
See Attachment

_

COUNTY OF RESLOENCE OF FIRST USTED DEFENDANT

Cook 7~

NOTE:

(IN U.S. PLAINnFF CA$S,ONL-Y'j

'-'

IN LAND TFl

CONDEMNATOILOvNeoCASES.

USt';,:,::-.T-;HE

-I;::O:CATIQN~THE ~~'.'; 0

t.::ir:;;;

II. BASIS OF JURISDICTION

(PLACE AN T IN ONE BOX ONl.Y)

o 1 U.S. Govemment P1ain1iff

M 3 Federal Question
(U.s. Govemment Not a Party)

Ill. CITIZENSHIP OF PRINCIPAL PARTIES ,PlACE AN -x- IN ON' BOX FaA PlAl"'"

(For Diversity Cases Only)

AND ONE BOX FOR DEFENDANT)

Citizen of This State

PTF DEF

PTF DE

o 1 0 , Incorporated or Principal Place 0 .. 0 ..

of Business In This State

0 ' U.S. Govemment Defendant

04 Diversity (Indicate CitizenshIp of Parties in Item III)

Citizen of Another State 0' 0,
Citizen or SUbject of a 0 3 CJ 3 Foreign Countiy

Incorporated and Principal F'tace 0 5 of Business In Another Slate

Foreign Nation

O. O'

IV. ORIGIN
m1 Originai .Proceeding

0 , Removed from State Court

(PLACE AN "X" IN ONE BOX ONLY)

0 • Remanded from 0·' Reinstated or

.Appellate Court

Reopened

Transferred from o 5another district
(specify)

o • MuttidiS'bict
litigation

~lDDisn
Judge from
o 7 MagIStrate
JUdgment

V. NATURE OF SUIT (PLACE AN "X" IN ONE BOX ONLY)

CONTRACT

TORTS

FORFEITURE/PENALTYI BANKRUPTCY

o 110 Insurance o 120 Mar1ne o 130 Miller Act o 1CO Negotiable Instrument o 150 Recovery of Overpayment
& Enforcement o! Judgmem
o 151 Mecllcare Aa o 152 Recovery of Defaulted
SllKlent Loans rExcl Veterans)
0153 Recovery of Overpayment of Veteran s Benefits
o 110 Stockhclders'Suits
C 110 Otner Contract
o 115 Comract ProduC1 LiabIlity

PERSONAL INJURY
o 310 Airplane o 315 Airplane PrOCluet
Llaolltty
o 320 Assault, Libel & Slander
o 330 Federal Employers uabllitY
o 34tl Marine o 345 Marine Product
LiaDll1ly
o 3SO Motor Vehicle
o 355 Motor VehIcle
PrOduC1 liability
W 360 Clner Personal InjUry

REAL PROPERTY
o 210 Land conoemnallon o 220 Foreclosure i:J 230 Rent LeaSe & Ejectment o 2010 Tons to LMICl
oo 245 Ton PrtXluet LiabilitY 210 All Otn&r Aeal PropeFTy

CIVIL RIGHTS

i'1ia::;m~

o

IYi

AccommOdatIons

~welfate
Qlher CIVIl Rights

PERSONAL INJURY
o 312 Pe1sonallnjUry Mecl Malpractice
o 315 F'ersonallnjury -

o .,0 Agrlcunure o 120 Ot~r Fooa & Drug o 125 Drug Related -Sel2lJre
01' Property 21 USC 881

o '22 Appeal 28 USC 158 o 423 Wltr'ldrawal
28 USC 157

Proouct LlabjJ~
o 311 Asbestos Perwnal

oo 130 UQuor Laws 140 R R & TruCk

PROPERTY RIGHTS

Injury Product LJablllly
PERSONAL PROPERTY o 370 Other FrauCl

o 150 Airline Regs o 110 OCcupational
5a1ety/He.allh
0810 Otner

o .20 Copyrigrus
0130 Patent o .40 Trademark

oo 371 Truth In LenOlng 310 Clher ~rsonal

LABOR

I SOCIAL SECURITY

Property Damage
o 315 ProPerry Damage
Product LlaOllllY

::3 710 Fair laoor Standards I 01$1 HIA i1395ff)

o >Ol
o 720 Labor/Mgml RelatIons

o 112 Black Lung {9231 .13 DJWC/DIINW (405(gll

PRISONER PETITIONS

o 1M SSIO Tille XVI

_0....N"..'."l.n_ o 610 Mo1IaJtoV.cate
o Habe.. Corp.: 530
0536 0640 Mandam.a & O!her
oo 5S0 Civi RJgrt:s 566 Pnson Coration

o 730 Labor/Mgml Repa,nmg
&. DISClosure Act
i o 740 Railway Labor Act
o 710 Other LaDer Uligatlon
o 711 Empl Ret Inc Security Act

o 185 RSI l405lgll
FEDERAL TAX SUITS
o .70 Taxes {U S Pialntil'f or Defendant}
o .11 IRS - Third Party
26 USC 7609

OTHER STATUTES
o .&00 Slate ReaptlOrtlonmem o 410 Antnrust o 430 BankS and Bankmg o 4SO CommercencC AatllSl«C o 410 Deportat:lOn
o 470 Aackeleer Influenced and
Corrupt organizatIons
o 110 S8tec:t1\le 5eMCe
o 'SO S8curlliesiCommodltleSl exChange
o .75 Customer Cl'Iallenge 12 uSC 3410
o 111 Agncultural Acts 018-2 EconomiC StaolllZallOI'1 Ad o 113 En.....ronmental Maners o 'N Energy AllocatIon Act o 115 Freedom o!
InformatIon Act
o toO Apppl o! Fee DetermlnilUor Under EQual Access 10 Justl
o 150 ConstitutIOnality of State Statllles
o 110 OIhel Statutory Acl:1onS

VI. CAUSE OF ACTION (CITE THE u.s. CML STATUTE UNDER WHICH YOU ARE FlUNG AND WRITE BRIEF STATEMENT OF CAUSE
DO NOT CITE JURISDICTIONAl STATUTES UNLESS DIVERSITY.)

Age Discrimination In Employment, Federal Due Process, Illinois State Due Process

VII. REQUESTED IN COMPLAINT

CHECK IF THIS IS A CLASS ACTION o UNDER F.R.C.P 23

DEMAND $

CHECK YES only ff demanded in complain

JURY DEMAND:

0 YES

0 NO

VIII.

This case

o~ is not a refiling of a previously dismissed action.

is a refiling of case number

,previously dismissed by Judge

_

I ~. SIGNATURE OF ATIORNEY OF RECORD

\)

Case 1:01-cv-00840 Document 1 Filed 02/06/01 Page 12 of 13
Attachment to Civil Cover Sheet
1.(c). ATTORNEYS (FIRM NAME ADDRESS AND TELEPHONE NUMBER) Clint Krislov Michael R. Kamuth KRISLOV & ASSOCIATES, LTD. Civic Opera Building, Suite 1350 20 North Wacker Drive Chicago, IL 60606 (312) 606-0500 Ronald L. Futterman Joan Matlack FUTTERMAN & HOWARD, CHTD. 122 S. Michigan Ave. Suite 1850 Chicago, IL 60603 312-427-3600
[da C:\WPDOCS\Drnek\CiviICover.Attachmnt.wpdj

Case 1:01-cv-00840 Document 1 Filed 02/06/01 Page 13 of 13

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

In the Matter of

Donald Dmek,

Plaintiff, v. City of Chicago, an Illinois Municipal Corporation,

Ole 0840

Defendant.

JUDGE BUCKLO

Case Number:

APPEARANCES ARE HEREBY FILED BY THE UNDERSIGNED AS ATTORNEY(S) FOR:

Donald Dmek, Plaintiff

MAGISTRATE JUDGE ASHMAN

(A)
? ? P ~;~ SIGNATURE

n .. <001

- U ; . J . /po 7 7

SIGNATURE

(B)
cmk/t7~/L -/r

NAME

Clint Krislov

NAME

L Michael R. Kanf"uth

FIRM

Krislov & Associates, Ltd.

FIRM

Krislov & Associates, Ltd.

STREET ADDRESS 20 North Wacker Drive, Suite 1350

STREET ADDRESS 20 North Wacker Drive, Suite 1350

OTY/STATE/ZIP

Chicago, IL 60606

CITY/STATE/ZIP

Chicago, IL 60606

TELEPHONE NUMBER 312-606-0500

TELEPHONE NUMBER 312-606-0500

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)

1531433

MEMBER OF TRIAL BAR?

YES [x] NO 0

TRIAL ATIORNEY?

YES [x] NO 0

(C) .

--------
SlGNF'r<.

()

IJ

J

'1-WX.:.v-

~

~ NAME

Ronald L. Futterman

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE) MEMBER OF TRIAL BAR? TRIAL ATTORNEY? DESIGNATED AS LOCAL COUNSEL?

(D)

SIGNATURE <...

J-

----

6257807

, YES .• ,

[~j-

NO ?.:~x]

- " YES:~"·,
Dc:: ":Jx] ;;'c\

N~ .. •.• "' ~" . ,-~

YES).'',-,,","'

[l.G

N,qCfx]

"' c

,.. ~""._
. -c",.,

-"

;:;
.~,.-

.c:J
"

0

NAME

Joan Matlack

FIRM

Futterman & Howard, Chtd.

FIRM

Futterman & Howard, Chtd.

STREET ADDRESS 122 S. Michigan Ave., Suite 1850

STREET ADDRESS 122 S. Michigan Ave., Suite 1850

CITYfSTATEIZIP

Chicago, IL 60603

CITY/STATE/ZIP

Chicago, IL 60603

TELEPHONE NUMBER 312-427-3600

00898937 IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)

:MEMBER OF TRIAL BAR? TRIAL ATTORNEY? DESIGNATED AS LOCAL COUNSEL?

YES [x] NO 0 YES [x] NO 0 YES 0 NO [x]

TELEPHONE l'<,JMBER 312-427-3600

06197420 IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)

MEMBER OF TRIAL BAR? TRIAL ATIORNEY? DESIGNATED AS LOCAL COUNSEL?

YES 0 NO [xy

YES

0

~

YES \DjNo [~

~

 
 Donald DRNEK, Plaintiff, v. CITY OF CHICAGO, an Illinois..., 2001 WL 34483995...

2001 WL 34483995 (N.D.Ill.) (Trial Pleading) United States District Court, N.D. Illinois. Donald DRNEK, Plaintiff, v.
CITY OF CHICAGO, an Illinois Municipal Corporation, Defendant. No. 01 C 0840. May 8, 2001.
Trial by Jury Demanded
Amended Complaint
Judge Bucklo, Magistrate Judge Ashman. Clinton A. Krislov, Michael R. Karnuth, Krislov & Associates, Ltd., Chicago, IL
Ronald L. Futterman, Joan Matlack, Futterman & Howard, Chtd., Chicago, IL The plaintiff, Donald Drnek, by and through his attorneys, for his complaint against the City of Chicago, an Illinois Municipal Corporation, states as follows:

THE PARTIES
1. Plaintiff Donald Drnek (“Drnek”) is a citizen of the United States and a resident of Chicago, Illinois. Drnek is a former police officer and former employee of the City of Chicago who was wrongfully terminated or “involuntarily retired” on December 3 I, 2000 because of his age. Plaintiff Drnek was age 65 at the time of his termination. Plaintiff Drnek is an “employee” for the purposes of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §630(f).
2. Defendant City of Chicago is an Illinois Municipal Corporation located within this judicial district which maintains its own police force. The City of Chicago is an “employer” under the ADEA, 29 U.S.C. §630(b).

JURISDICTION AND VENUE 3. This cause of action arises under the ADEA, 29 U.S.C. § 621 et seq., the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section 2 of the Illinois Constitution.
4. Jurisdiction isbased upon 28 U.S.C. § 1331,28 U.S.C. § 1367 and 29 U.S.C. § 626.
5. Venue is proper in this Court pursuant to 28 U.S.C. 1391 (b) because the claim arose in this judicial district.

6. Plaintiff demands a trial by jury.

JURY DEMAND

1

Donald DRNEK, Plaintiff, v. CITY OF CHICAGO, an Illinois..., 2001 WL 34483995...
SUBSTANTIVE ALLEGATIONS
A. Conditions Precedent Met 7. All conditions precedent to this action have been fulfilled. On September 19, 2000, Plaintiff timely filed a charge with the Equal Employment Opportunity Commission alleging age discrimination in termination (attached as Exhibit A) and received his right to sue letter within ninety days of commencement of this case (attached as Exhibit B).
B. Background 8. Plaintiff was bom on May 22, 1935 and is 65 years old.
9. On or about July 1, 1957, plaintiff was hired by the City of Chicago as a police officer.
10. At ali times pertinent hereto, plaintiffperformed his job duties as a police officer in a satisfactory manner.
11. Nevertheless, sometime in December 2000, plaintiff was informed that pursuant to an ordinance adopted by the City of Chicago on May 17, 2000, plaintiff was to be terminated or “involuntarily retired” solely because he was over the age of 63 years.
12. The Age Discrimination in Employment Act (29 U.S.C. §621, et. seq.) prohibits discrimination on the basis of age in employment. Section 623(a) of the ADEA provides that it is unlawful for any employer: a. to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;
b. to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or
c. to reduce the wage rate of any employee in order to comply with this chapter.
13. Beginning on or around September 30, 1996 and continuing to the present, there existed and continues to exist a legislatively-created “public safety” exception to the ADEA, 29 U.S.C. 6230), which provides in relevant part: (j) Employment as firefighter or law enforcement officer
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, the employer has complied with section 3(d)(2) of the Age Discrimination in Employment Amendments of 1996 if the individual was discharged after the date described in such section, and the individuaI has attained-
(A) the age of hiring or retirement, respectively, in effect under applicable State or local law on March 3, 1983; or
(B)
(i) if the individual was not hired, the age of hiring in effect on the date of such failure or refusal to hire under applicable State or local law enacted after September 30, 1996; or
(ii) if applicable State or local law was enacted after September 30, 1996, and the individual was discharged, the higher of-
2

Donald DRNEK, Plaintiff, v. CITY OF CHICAGO, an Illinois..., 2001 WL 34483995...
(I) the age of retirement in effect on the date of’such discharge under such law; and (II) age 55; and (2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter..
(emphasis added). 14. On May 17, 2000, the City of Chicago adopted an ordinance which amended Chapter 2-152-140 of the Municipal Code to read as follows: (a) Effective December 3 I, 2000, the age of 63 shall be the maximum age for employment of sworn members of the police department, including a sworn member who is transferred or appointed to a supervisory or administrative position.
* * * (d) All persons to whom this ordinance applies shall be retired upon attainment of age 63. Any person to whom this ordinance applies whose age is 63 or more on December 31, 2000 shall be retired upon that date. Chicago Municipal Code 2-152-140 (hereinafter, the “Ordinance” or “Mandatory Retirement Ordinance”). 15. Following enactment of the Ordinance, plaintiff was terminated by the City of Chicago on December 31, 2000, the effective date of the Ordinance, for exceeding the mandatory retirement age.
C. The Real Purpose in Enacting the Ordinance 16. The Ordinance was enacted as a subterfuge to evade the purposes of the ADEA. The purpose of the Mandatory Retirement Ordinance was not to promote the interests of public safety; the Ordinance was passed to accomplish other objectives through the mandatory retirement of police officers over the age of 63. 17. The Mandatory Retirement Ordinance was enacted for the purpose of eliminating from the ranks of the Police Department plaintiff and other police officers who had surpassed 63 years of age so that, among other reasons, the City could hire and promote younger police officers within its Police Department.
COUNT I
AGE DISCRIMINATION IN TERMINATION 18. Plaintiff adopts and realleges paragraphs 1 through 17.
A. Subterfuge of the ADEA’s Purposes 19. By enacting and enforcing the Mandatory Retirement Ordinance and terminating plaintiff’s employment for reasons other than the promotion of public safety, defendant and its agents have willfully and intentionally discriminated against plaintiff on the basis of his age in a manner that acts as a subterfuge to evade the purposes of the ADEA. Such conduct violates the ADEA. 29 U.S.C. §§ 623(a) and 623(j)(2).
3

Donald DRNEK, Plaintiff, v. CITY OF CHICAGO, an Illinois..., 2001 WL 34483995...
B. Failure to Afford Plaintiff an Opportunity to Prove Fitness for Duty 20. In 1996, at the same time as it enacted the current provisions of 29 U.S.C. Section 623 (j) of the ADEA, Congress also enacted regulations requiring development and implementation of performance tests for police officers attaining mandatory retirement age to determine whether they are fit to continue their employment despite their age. Theregulation, Public Law 104-208, 110 Stat. 3009-24 (Sept. 30, 1996), provides in relevant part:
* * * (c) ADVISORY GUIDELINES.--Not later than 4 years after the date of enactment of this Act, the Secretary shall develop and issue, based on the results of the study required by subsection (a), advisory guidelines for the administration and use of physical and mental fitness tests to measure the ability and competency of law enforcement officers and firefighters to perform the requirements of the jobs of the officers and firefighters. (d) JOB PERFORMANCE TESTS. --
(1) IDENTIFICATION OF TESTS.--After issuance of the advisory guidelines described in subsection (c), the Secretary shall issue regulations identifying valid, nondiscriminatory job performance tests that shall be used by employers seeking the exemption described in section 4(j) of the Age Discrimination in Employment Act of 1967 with respect to firefighters or law enforcement officers who have attained an age of retirement described in such section 4(j).
(2) USE OF TESTS.--Effective on the date of issuance of the regulations described in paragraph (1), any employer seeking such exemption with respect to a firefighter or law enforcement officer who has attained such age shall provide to each firefighter or law enforcement officer who has attained such age an annual opportunity to demonstrate physical and mental fitness by passing a test described in paragraph (1), in order to continue employment.
21. When read in conjunction with the above regulations, the spirit and letter of Section 4230) of the ADEA provides an exception to the ADEA for mandatory retirement laws only when the officer can no longer meet the fitness requirements of his job.
22. Municipal Code §2-152-410, as written and as currently interpreted and implemented by the City of Chicago, is in direct contravention to Section 4230) of the ADEA in that it fails to provide any officer, including plaintiff, with an opportunity to prove his fitness for duty. This is not the result intended or contemplated by Section 4230).
23. At no time was plaintiff ever offered the opportunity to prove his “physical and mental” fitness to remain on the job.
24. In the absence of determining plaintiffs’ mental and physical fitness for duty, the City of Chicago’s termination of the plaintiff pursuant to Municipal Code Section 2-152-410 is in violation of the ADEA.
C. The City’s Violation of the ADEA 25. The City’s Mandatory Retirement Ordinance violates the ADEA and is void and unenforceable.
26. By terminating plaintiff’s employment, defendant and its agents have willfully and intentionally discriminated against plaintiff on the basis of his age.
27. In enacting and enforcing the Mandatory Retirement Ordinance and in terminating plaintiff Drnek, defendant knew, or should have known, that its conduct violated the ADEA.
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Donald DRNEK, Plaintiff, v. CITY OF CHICAGO, an Illinois..., 2001 WL 34483995...
28. As a result of the unlawful and willful acts complained of herein, Plaintiff has suffered loss of employment, wages, benefits, and other compensation, as well as emotional distress, embarrassment, humiliation, and other mental anguish, and loss of his useful working life as a police officer.
COUNT II
VIOLATION OF PLAINTIFF’S DUE PROCESS RIGHTS UNDER THE UNITED STATES CONSTITUTION 29. Plaintiff adopts and realleges paragraphs 18-28. 30. Plaintiff has a property interest in his employment as a police officer, and the wages, benefits and other compensation related to that employment. 31. Defendant’s mandatory retirement of plaintiff has deprived him of his property interest without due process, in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States (U.S.C. Amends. 5 and 14). 32. The Mandatory Retirement Ordinance is unenforceable and void as written and as applied, and violates the Fifth and Fourteenth Amendments to the Constitution of the United States. 33. As a result of the unlawful and willful acts complained of herein, plaintiff has suffered loss of employment, wages, benefits, and other compensation, as well as emotional distress, embarrassment, humiliation, and other mental anguish, and loss of his useful working life as a police officer.
COUNT III
VIOLATION OF PLAINTIFF’S DUE PROCESS RIGHTS UNDER THE ILLINOIS CONSTITUTION 34. Plaintiff adopts and realleges paragraphs 18-28. 35. Plaintiffhas a property interest in his employment as a police officer, and the wages, benefits and other compensation related to that employment. 36. Defendant’s mandatory retirement of plaintiff has deprived him of his property interest without due process, in violation of Article I, Section 2 of the Illinois Constitution. 37. The Mandatory Retirement Ordinance is unenforceable and void as written and as applied, and violates Article I, Section 2 of the Illinois Constitution. 38. As a result of the unlawful and willful acts complained of herein, plaintiff has suffered loss of employment, wages, benefits, and other compensation, as well as emotional distress, embarrassment, humiliation, and other mental anguish, and loss of his useful working life as a police officer.
PRAYER FOR RELIEF WHEREFORE, Plaintiff Donald Drnek respectfully requests that this Court enter an order: a. Adjudging and decreeing that the conduct of the defendant as described herein is in violation of Section 7 of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et.seq.;
5

Donald DRNEK, Plaintiff, v. CITY OF CHICAGO, an Illinois..., 2001 WL 34483995...
b. Declaring that Chicago Municipal Code Section 2-152-410 is in violation of, and superceded by, the ADEA, and is void and unenforceable;
c. Declaring that City of Chicago Municipal Code Section 2-152-410 is unenforceable and void as written and applied, in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States (U.S.C. Amends. 5 and 14);
d. Declaring that City of Chicago Municipal Code Section 2-152-410 is unenforceable and void as written and applied, in violation of Article I, Section 2 of the Illinois Constitution;
e. Awarding plaintiff the salary, with interest, that he has lost as a result of defendant’s conduct;
f. Awarding plaintiff liquidated damages, lost benefits (including, but not limited to pension benefits) and other compensatory damages, full restoration of seniority tights and pension credits, and such other relief as may be necessary to restore plaintiff to the position he would have had if not for defendant’s unlawful and discriminatory conduct;
g. Issuing a mandatory injunction against Defendant requiring that plaintiff be reinstated to his position as police officer with full back pay, salary, benefits, and seniority applicable to him on the date of termination and subsequently as if he had remained employed today;
h. Awarding plaintiff reasonable attorneys’ fees and costs; and
i. Awarding plaintiff such other and further relief as this Court deems proper and just.

End of Document

Appendix not available.

6

 
 Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307758...

2002 WL 32307758 (C.A.7) (Appellate Brief) United States Court of Appeals, Seventh Circuit.
Donald DRNEK, James D. Minch, Richard A. Graf and Richard Cosentino, Plaintiffs-Appellees, v.
CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellant.
Nos. 02-2587, 02-2588 (consolidated). 2002.
Appeal Pursuant to 28 U.S.C. 1292(b) from the Northern District of Illinois, Eastern Division Nos. 01 C 0840 & 01 C 2586 The Honorable Elaine E. Bucklo, Judge Presiding

Brief of Defendant-Appellant City of Chicago

Mara S. Georges, Corporation Counsel of the City of Chicago, 30 North LaSalle Street, Suite 800, Chicago, Illinois 60602, (312) 744-3564.

Lawrence Rosenthal, Deputy Corporation Counsel, Benna Ruth Solomon, Chief Assistant Corporation Counsel, Myriam Zreczny, Assistant Corporation Counsel, Of Counsel.
*i TABLE OF CONTENTS

Table of Authorities .......................................................................................................................................................................

iii

Jurisdictional Statement ...............................................................................................................................................................

1

Issue Presented For Review ........................................................................................................................................................

3

Statute and Ordinance Involved ................................................................................................................................................

4

Statement of the Case ....................................................................................................................................................................

7

Statement of Facts ..........................................................................................................................................................................

9

Summary of Argument .................................................................................................................................................................

18

Argument ...........................................................................................................................................................................................

21

I. MANDATORY RETIREMENT OF POLICE AND FIRE PERSONNEL IS PERMISSIBLE

25

UNDER THE ADEA. ...................................................................................................................................................................

A. Mandatory Retirement Of Police And Fire Personnel Is Permissible For Any Reason Except As A

26

Subterfuge To Evade The ADEA’s Purposes. .....................................................................................................................

B. A Claim of Subterfuge Requires Allegations That A Mandatory Retirement Ordinance Is A Scheme

27

To Evade A Substantive Prohibition Of The ADEA. .......................................................................................................

C. Evidence Of Allegedly Illicit Motives For Establishing A Retirement Plan Is Irrelevant Where A

31

Plan Does Not Evade A Statutory Prohibition. ...................................................................................................................

II. THIS LAWSUIT RESTS ON NO PROPER THEORY OF LIABILITY UNDER THE ADEA. .............

34

1

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307758...

A. Allegations That A Mandatory Retirement Plan For Police And Fire Personnel Was Not Motivated

36

By Public Safety Considerations Do Not State A Claim Of Subterfuge. ..................................................................

B. A Mandatory Retirement Plan That Creates Employment Opportunities For Younger Workers At

42

The Expense Of Older Workers Is Not A Subterfuge To Evade The Purposes Of The ADEA. .....................

*ii C. The Private Motivations Of Individual Legislators And City Officials For Supporting The

46

Mandatory Retirement Ordinance Cannot Invalidate An Otherwise Valid Ordinance. ......................................

D. Section 623(j)(2)’s “Subterfuge” Provision Is Not Superfluous. ...........................................................................

52

E. The Controlling Question Should Be Answered In The Negative And Judgment Should Be Entered

54

For The City On The ADEA Claims. .....................................................................................................................................

Conclusion .........................................................................................................................................................................................

57

Statement Concerning Oral Argument ...................................................................................................................................

58

*iii TABLE OF AUTHORITIES CASES Ahrenholz v. Board of Trustees, 219 F.3d 674 (7th Cir. 2000) ........................ Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977)................................................................................................................... Bates v. United States, 522 U.S. 23 (1997) .............................................................. Bell v. Purdue University, 975 F.2d 422 (7th Cir. 1992).................................... Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)................. Conley v. Gibson, 355 U.S. 41 (1957) ....................................................................... Conroy v. Aniskoff, 507 U.S. 511 (1993) .................................................................. EEOC v. Home Insurance Co., 672 F.2d 252 (2d Cir. 1982) ........................... EEOC v. Wyoming, 460 U.S. 226 (1983) ................................................................. Fraternal Order of Police v. City of Hobart, 864 F.2d 551 (7th Cir. 1988) ....................................................................................................................................... Frederick v. Simmons Airlines, Inc., 144 F.3d 500 (7th Cir. 1998)................ Grossbaum v. Indianapolis-Marion County Building Authority, 100 F.3d 1287 (7th Cir. 1996), cert. denied,520 U.S. 1230 (1997)......................... Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987) .....................................................................................................................

21 47
39 32-34, 46, 47
47 23 48 33 11 48-49
23 47-48
26

2

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307758...
Henn v. National Geographic Society, 819 F.2d 824 (7th Cir.), cert. denied,484 U.S. 964 (1987) ........................................................................................... *ivHillman v. Resolution Trust Corp., 66 F.3d 141 (7th Cir. 1995) .............. International Brotherhood of Teamsters v. Philip Morris, Inc., 196 F.3d 818 (7th Cir. 1999) ............................................................................................................ Kier v. Commercial Union Insurance Cos., 808 F.2d 1254 (7th Cir.), cert. denied,481 U.S. 1029 (1987) .............................................................................. Knight v. Georgia, 992 F.2d 1541 (11th Cir. 1993) ............................................. Kopec v. City of Elmhurst, 193 F.3d 894 (7th Cir. 1999)................................... Looper Maintenance Service, Inc. v. City of Indianapolis, 197 F.3d 908 (7th Cir. 1999) ..................................................................................................................... Mason v. Village of El Portal, 240 F.3d 1337 (11th Cir. 2001)....................... Massey Ferguson v. Gurley, 51 F.3d 102 (7th Cir. 1995).................................. Matthews v. Columbia County, 2002 WL 1337303 (11th Cir. June 19, 2002) ....................................................................................................................................... Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983) ................................................... Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158 (1989) ..................................................................................................................................... Stevens v. Umsted, 131 F.3d 697 (7th Cir. 1997) .................................................. Thompson v. Illinois Department of Professional Regulation, 300 F.3d 750 (7th Cir. 2002) ............................................................................................................ United Air Lines, Inc. v. McMann, 434 U.S. 192 (1977).................................... United Air Lines v. Mesa, 219 F.3d 605 (7th Cir.), cert. denied,531 U.S. 1036 (2000) .......................................................................................................................... *v STATUTES, ORDINANCES, AND RULES 28 U.S.C. § 1292(b) (2000)............................................................................................ 28 U.S.C. § 1331 (2000) ................................................................................................. 28 U.S.C. § 1367 (2000) ................................................................................................. 29 U.S.C. §§ 621-634 (1994 & Supp. V 1999) ...................................................... 29 U.S.C. § 623(a) (1994) .............................................................................................. 29 U.S.C. § 623(d) (1994) ..............................................................................................
3

32, 33
55 56
43
28, 39 passim
23
49 2
49-50
48
passim
23 34
29 56
2, 16, 17 1 1 1
4, 29, 31, 44 4, 31, 52

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307758...
29 U.S.C. § 623(f) (1982 & Supp. V 1987) ............................................................. 29 U.S.C. § 623(j) (1994 & Supp. V 1999) ............................................................. 29 U.S.C. § 630(b) (1970) .............................................................................................. Fair Labor Standards Act Amendments of 1974, Pub. L. No. 93-259, § 28(a)(2), 88 Stat. 55 (1974) ........................................................................................... Age Discrimination in Employment Amendments of 1986, Pub. L. 99592, § 3, 100 Stat. 3342(1986) .................................................................................... Age Discrimination in Employment Amendments of 1996, Pub. L. No. 104-208, § 1, 110 Stat. 3009-23 to 3009-25 (1990) (codified at 29 U.S.C. § 623(j) (1994 & Supp. V (1999)) ................................................................ Older Workers Benefit Protection Act, Pub. L. No. 101-433, § 103, 104 Stat. 978 (1990) ................................................................................................................. Municipal Code of Chicago, Ill. § 25-37 (1939) .................................................. Municipal Code of Chicago, Ill. § 25-37 (1984) .................................................. Municipal Code of Chicago, Ill. § 25-37 (1988) (recodified at Municipal Code of Chicago, Ill. § 2-36-020 (1990)) ................................................................ Municipal Code of Chicago, Ill. § 2-36-020 (1990) ............................................ Municipal Code of Chicago, Ill. § 2-152-140 (rev. 2000) ................................ Fed. R. App. P. 5 ................................................................................................................ *viFed. R. Civ. P. 8(a) ..................................................................................................... Fed. R. Civ. P. 12(b)(6) ................................................................................................... LEGISLATIVE HISTORY 132 Cong. Rec. S16850-02 (Oct. 16, 1986) (statement of Sen. Ford) .......... 141 Cong. Rec. E283-01 (Feb. 7, 1995) (extension of remarks of Rep. Fawell) .................................................................................................................................. 141 Cong. Rec. S3891-02 (Mar. 14, 1995) (statement of Sen. MosleyBraun) .................................................................................................................................... 141 Cong. Rec. H3822-01 (Mar. 28, 1995) (statements of Reps. Owens, Fawell, and Weldon) .......................................................................................................
JURISDICTIONAL STATEMENT
4

passim passim
9 9 10, 11 12
39 9
10 11 11 1, 5-6, 12
2 34 23
40-41 41 41
41, 42

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307758...
The plaintiffs, Donald Drnek, James Minch, Richard Graf, and Richard Cosentino [hereafter referred to collectively as “plaintiffs”], are Chicago police officers and uniformed Chicago Fire Department personnel who were retired under the City’s mandatory retirement ordinance, Municipal Code of Chicago, Ill. 2-152-140 (rev. 2000).1 In two separate but virtually identical complaints, they sued the City of Chicago, alleging that the mandatory retirement ordinance violates the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634 (1994 & Supp. V 1999) (“ADEA”), and their due process rights under the United States and Illinois Constitutions. Minch R. 1-1 (class action complaint); Drnek R. 6 (amended complaint). The district court did not formally consolidate the two cases, but considered them together because they raised the same claims. See App. A3, A43; Drnek R. 9. The district court had jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 (2000), and had supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367 (2000).
On June 8, 2001, the City moved to dismiss the complaints. Minch R. 7; Drnek R. 10. On March 25, 2002, the district court denied that motion as to the plaintiffs’ ADEA claims. App. A6- *1 a27.2*2 On April 4, 2002, the City moved for an order amending the March 25, 2002, order to include certification of the ADEA claims for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (2000). Drnek R. 33. The court elected to construe the City’s motion as a motion for certification and as a motion to reconsider. App. A43-A44; Drnek R. 51-2 at 3-4. On May 22, 2002, the court denied the motion to reconsider, but granted the motion to amend the March 25, 2002, order, to certify an immediate interlocutory appeal. App. A41-A55.
On May 31, 2002, pursuant to 28 U.S.C. 1292(b) (2000) and Fed. R. App. P. 5, the City petitioned this court for permission to appeal. Minch R. 56; Drnek R. 46 (attaching petitions) . This court granted the petition on June 11, 2002, and also consolidated the two cases for purposes of disposition and briefing. Minch R. 56; Drnek R. 46. The court has jurisdiction over this appeal pursuant to 28 U.S.C. 1292(b) (2000).
*3 ISSUE PRESENTED FOR REVIEW
As framed by the district court, the issue certified for review is “whether a plaintiff can demonstrate subterfuge under [section] 623(j)(2) [of the ADEA] with any kind of evidence if there is no violation of [section] 623(j)(1).” App. A54 (emphasis in original).
*4 STATUTE AND ORDINANCE INVOLVED
Section 623(a) of the ADEA provides, in pertinent part: (a) Employer practices. It shall be unlawful for an employer --
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;
(2) to limit, segregate, or classify his employees in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or
(3) to reduce the wage rate of any employee in order to comply with this Act.
29 U.S.C. § 623(a) (1994).
Section 623(d) of the ADEA provides, in pertinent part:
(d) Opposition to unlawful practices; participation in investigations, proceedings, or litigation. It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment ... because such individual ... has opposed any practice made unlawful by this section, or because such individual ... has made a charge, testified, assisted, or participated in any manner in an investigation,
5

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307758...
proceeding, or litigation under this Act.
29 U.S.C. § 623(d) (1994). Section 623(j) of the ADEA provides, in pertinent part: (j) Employment as firefighter or law enforcement officer. It shall not be unlawful for an employer which is a ... political subdivision of a State ... to discharge any individual because of such individual’s age if such action is taken -*5 (1) with respect to the empicyment of an individual as a firefighter ar as a law enforcement officer, the empicyer has complied with section 3(d) (2) of the [ADEAJ Amendments of 1996 if the individual was discharged after the date described in such section, and the individual has attained -(A) the age of ... retirement ... in effect under applicable State or local law on March 3, 1983; or
ZL (B) (ii) if applicable State or local law was enacted after September 30, 1996, and the individual was discharged, the higher of -(I) the age of retirement in effect on the date of such discharge under such law; and (II) age 55; and (2) pursuant to a bona fide ... retirement plan that is not a subterfuge to evade the purposes of this chapter.
29 U.S.C. § 623(j) (1994 & Supp. V 1999). The Municipal Code of Chicago, Ill. § 2-152-140 (rev. 2000), provides, in pertinent part: (a) Effective December 31, 2000, the age of 63 shall be the maximum age for employment of sworn members of the police department, including a sworn member who is transferred or appointed to a supervisory or administrative position. (b) Effective December 31, 2000, the age of sixty-three shall be the maximum age for employment of any member of the uniformed service of the Fire Department, the duties of whose position are primarily to perform work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and *6 equipment, including an employee engaged in this activity who is transferred or appointed to a supervisory ar administrative position. (c) .... (d) All persons to whom this ordinance applies shall be retired upon attainment of age 63. Any person to whom this ordinance applies whose age is 63 or more on December 31, 2000 shall be retired upon that date. ....
Municipal Code of Chicago, Ill. § 2-152-140 (rev. 2000).
*7 STATEMENT OF THE CASE The plaintiffs in these consolidated appeals have alleged that the City’s mandatory retirement ordinance violates the ADEA. Chicago’s mandatory retirement ordinance for police officers and firefighters requires police officers and uniformed fire
6

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307758...
department personnel to retire at age 63. The plaintiffs allege, among other things, that the ordinance was enacted not for its stated purpose of protecting the public safety, but for the purpose of eliminating older police and fire personnel in favor of younger workers, and was therefore an illegal “subterfuge to evade the purposes of the ADEA,” within the meaning of section 623(j)(2) of that statute, 29 U.S.C. § 623(j)(2) (1994 & Supp. V 1999). Minch R. 1-1 at 8-9; Drnek R. 6 at 5; Drnek R. 41.3
On March 25, 2002, the district court denied the City’s motion to dismiss the plaintiffs’ ADEA claims. App. Al-A27, A40. The City subsequently moved for an order amending the March 25, 2002, order to include certification of the district court’s March 25 ruling for interlocutor appeal. Drnek R. 33. The court elected to construe the City’s motion as both a motion for certification and as a motion to reconsider. App. A43-A44; Drnek R. 51-2 at 3-4. On May 22, 2002, the court denied the motion to *8 reconsider, but granted the motion for certification. App. A41-A55. On May 31, 2002, the City petitioned this court for permission to appeal. Minch R. 56; Drnek R. 46. This court granted the petition on June 11, 2002, and consolidated the cases for briefing and disposition. Minch R. 56; Drnek R. 46.
*9 STATEMENT OF FACTS
As early as 1939, the City had in effect an ordinance establishing a mandatory retirement age of 63 for certain Chicago police and fire personnel. See Municipal Code of Chicago, Ill. § 25-37 (1939).4 In 1974, however, Congress extended the ADEA -which prohibited, among other things, discharge from employment on the basis of age -- to state and local governments, which had been expressly excluded from the original act, see29 U.S.C. § 630 (b) (1970). See Fair Labor Standards Act Amendments of 1974, Pub. L. No. 93-259, § 28(a) (2), 88 Stat. 55, 74 (1974) . Under the ADEA, state and local governments could enforce mandatory retirement laws for police and fire personnel, but were required to demonstrate that age was a bona fide occupational qualification for those positions. See Ko-pec v. City of Elmhurst, 193 F.3d 894, 897-99 (7th Cir. 1999) . The City’s mandatory retirement ordinance was subsequently amended to reflect these changes in federal law.5
*10 In 1986, Congress amended the ADEA to include an exemption for state and local governments regarding mandatory retirement of police and fire personnel. See Age Discrimination in Employment Amendments of 1986, Pub. L. 99-592, § 3, 100 Stat. 3342, 3343 (1986). See also Kopec, 193 F.3d at 897. The exemption permitted state and local governments with age restrictions for *11 police and fire personnel in place an March 3, 1983, to resume application of those age restrictions. See 100 Stat. 3342, 3343; Kopec, 193 F.3d at 897.6 The 1986 amendments also directed the Secretary of Health and Human Services to conduct a study regarding the feasibility of testing police officers and firefighters for physical and mental fitness. See 100 Stat. at 3343; Kopec, 193 F.3d at 897 n.l. The study was conducted, but no guidelines were ever proposed. See Kopec, 103 F.3d at 897 n.l. In response to the 1986 amendments, Chicago reinstated mandatory retirement of police and fire personnel at age 63. See Municipal Code of Chicago, Ill. § 25-37 (1988) (recodified at Municipal Code of Chicago, Ill. § 236-020 (1990)).7
The 1986 exemption expired by its terms on December 31, 1993, see 100 Stat. at 3343; Kopec, 193 F.3d at 897, and until 1996, there was no exemption from the ADEA for police and fire *12 personnel. Then, in 1996, Congress reinstated the exemption and authorized its retroactive application to December 31, 1993. See Age Discrimination in Employment Amendments of 1996, Pub. L. No. 104-208, § 1, 110 Stat. 3009-23 to 3009-25 (1990) (codified at 29 U.S.C. § 623(j) (1994 & Supp. V 1999)). This exemption contains no sunset provision. Moreover, as in 1986, Congress called for a study regarding the feasibility of testing the fitness of firefighters and police officers. See 110 Stat. at 3009-24; Kopec, 193 F.3d at 898 n.2. To date, no guidelines have been issued.
In response to the reinstated exemption, the City, on May 17, 2000, enacted another mandatory retirement ordinance to require retirement of certain police and fire personnel at age 63. Municipal Code of Chicago, Ill. § 2-152-140 (rev. 2000). The preamble to the ordinance provides that its purpose is to protect the public safety of the residents of Chicago. See Drnek R. 10, exh. C (Chicago City Council, Journal of Proceedings, May 17, 2000, at 32899-32901). This ordinance is the subject of the present lawsuits.
7

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307758...
Allegations of the Present Lawsuits
In these lawsuits, the plaintiffs allege that the mandatory retirement ordinance violates the ADEA in two respects. First, they allege that the City violated the ADEA by mandatorily retiring them without affording them the opportunity to prove *13 their fitness for duty. See Minch R. 1-1 at 10-11; Drnek R. 6 at 6-7. Second, they allege that the mandatory retirement ordinance was an illegal “subterfuge” to evade the purposes of the ADEA within the meaning of section 623(j)(2) of that statute. Minch R. 1-1 at 8-9; Drnek R. 6 at 5. In particular, the plaintiffs allege that the City’s “real purpose” for enacting the ordinance “was not to promote the interests of public safety,” but was enacted to “eliminat[e] from the ranks of the Police [and Fire] Department [s] officers who had surpassed 63 years of age so that, among other reasons, the City could hire and promote younger” police and fire personnel. Minch R. 1-1 at 8-9; Drnek R. 6 at 5.
The City moved to dismiss all of the plaintiffs’ claims. Minch R. 7, 24, 26; Drnek R. 10, 24. At a hearing before the district court, the plaintiffs provided additional factual allegations purporting to support their claim of subterfuge. See Drnek R. 41 (transcript). The plaintiffs summarized that this additional factual information tended to show that the mandatory retirement ordinance was enacted “as a way to create hiring and promotional opportunities in the fire department and police department for the benefit of younger employees,” “for the benefit of creating some job openings for minorities in those departments,” and for the “purpose of getting rid of what was referred to by Alderman Beavers as the deadbeats in the department and the old-timers in the department.” Drnek R. 41 at *14 6-7. The plaintiffs cited public statements by the sponsor of the mandatory retirement ordinance and other City officials in support of this conclusion. For example, the plaintiffs claimed that the sponsor of the ordinance stated that the ordinance would “make room for young people coming in,” id. at 9, and that “[y]ou get more work out of young upstarts than out of old-timers,” id. at 12. According to the plaintiffs, the Fire Commissioner stated that the ordinance “gives younger people a chance to move up, bringing fresh ideas and talent, and gives the older members a chance to enjoy the retirement years that they worked so hard to earn,” id. at 11, and the Chicago Tribune reported that “retirement of older supervisors who climbed through the ranks of what city consultants called an old boy network also would open positions for minorities,” id. at 15. See generally id. at 12-16. The plaintiffs also claimed that the City had waited four years after the 1996 exemption to enact its ordinance so that a friend of the Mayor’s in the police department could retire voluntarily at age 68, and thus did not have a “legitimate public safety interest” in enacting the ordinance. Id. at 7, 13, 14.
On March 25, 2002, the district court denied the motion as to the ADEA claims. Among other things, the court rejected the plaintiffs’ claim that the City violated the ADEA by failing to afford them the opportunity to demonstrate their fitness for duty. App. A10-A17. The court also rejected the plaintiffs’ *15 contention, raised in their response to the City’s motion to dismiss but not in their complaints, that the City violated section 623(j)(1) of the ADEA by expanding the scope of personnel who had been subject to mandatory retirement under the ordinance existing in 1983. App. A17-A18, A26. The court did conclude that the plaintiffs stated a claim of subterfuge by alleging that the mandatory retirement ordinance was not enacted for public safety reasons, but to create opportunities for younger workers. App. A18-A25. In the district court’s view, “replacement of older employees by younger employees solely on the basis of age is precisely the type of discrimination that the ADEA was enacted to prevent,” and “[a]ge-based retirement is tolerated in limited circumstances under § 623(j), but not for the wrong reasons, i.e., not for reasons that are merely a cover-up for the type of ageism prohibited by the ADEA.” App. A23-A24. The court further determined that the question whether the mandatory retirement ordinance was a “subterfuge” is one of fact, and that “the intent or desire of aldermen and other City officials is both relevant and material” to that inquiry. App. A2l-A23. The court observed that the subterfuge inquiry “necessarily requires the trier of fact to look beyond the defendant’s statement of purpose or intent to see whether it is just an excuse or an ‘artifice of evasion’ to cover-up otherwise prohibited conduct.” Id. (quoting *16Public Em-Plovees Retirement System of Ohio v. Betts, 492 U.S. 158, 171 (1989)).8
On April 4, 2002, the City moved for an order amending the March 25, 2002, order to include certification for an immediate appeal pursuant to 28 U.S.C. § 1292(b) (2000). Drnek R. 33. In that motion, the City identified the following question of law as controlling: “whether allegedly illicit motives on the part of individual legislators and municipal officials for enacting a retirement plan that mandatorily retires police and fire personnel at age 63 and results in their replacement with younger workers can demonstrate subterfuge under section 623(j)(2) of the ADEA.” Drnek R. 33 at 5; App. A43.
The district court elected to construe the City’s motion as both a motion for amendment to include certification for immediate appeal and a motion for reconsideration. See App. A43-A44; Drnek R. 51-2 at 3-4. On May 22, 2002, the district court denied the motion for reconsideration, but certified its March 25, 2002, order for immediate appeal. See App. A4l-A55. In so doing, the court reframed the controlling legal question as: “whether a plaintiff can demonstrate subterfuge under 623(j)(2) with any kind of evidence if there is no violation of 623(j)(1).” *17 App. A54 (emphasis in original).
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On May 31, 2002, the City petitioned this court for permission to appeal the March 25, 2002, order, as certified an May 22, 2002, pursuant to 28 U.S.C. § 1292(b). Minch R. 56; Drnek R. 46. On June 11, 2002, this court granted the petition and consolidated the two cases for purposes of disposition and briefing. Minch R. 56; Drnek R. 46.
*18 SUMMARY OF ARGUMENT
The ADEA provides an express exemption from its prohibition of age discrimination in employment for mandatory retirement of police and fire personnel. The sole limitation on this exemption is that it may not be a “subterfuge to evade the purposes” of the ADEA. Of course, one of the purposes of the ADEA is to authorize mandatory retirement of police and firefighters -- that is the express objective of the exemption in section 623(j). In order to state a claim of subterfuge, accordingly, the City’s ordinance must be something other than an ordinary mandatory retirement plan -- it must amount to an effort to evade one of the ADEA’s substantive prohibitions. Thus, allegations or evidence that a plan was motivated by a desire to benefit younger workers is irrelevant -- the ADEA permits an employer to replace older firefighters and police officers with younger personnel.
Rather than require the plaintiffs to identify a statutory prohibition allegedly evaded by the mandatory retirement ordinance, the district court determined that the plaintiffs stated a claim of subterfuge by their allegations that the mandatory retirement ordinance was motivated not by a concern for public safety, but by the allegedly illicit desire to create hiring and promotional opportunities for younger workers at the expense of older workers. The court further determined that the question whether the ordinance was a “subterfuge” could only be *19 answered by permitting the plaintiffs to inquire into the private motivations of the individual legislators and City officials who supported it.
These conclusions were erroneous. The plain language of section 623(j) does not require employers utilizing that exemption to justify a mandatory retirement plan on public safety grounds, and Supreme Court precedent instructs that such a requirement cannot be inferred from the exemption’s “subterfuge” provision. Moreover, the plaintiffs’ allegations that the ordinance was intended to remove older workers in order to create opportunities for younger workers only demonstrate that the City’s ordinance is exactly what it seems to be: a program to remove older workers precisely based on their age. This is exactly the point of the exemption. Any mandatory retirement plan involves removal of older workers and thereby creates opportunities for younger workers.
Finally, the inquiry into legislative motive that the plaintiffs seek to undertake is unwarranted. Courts have consistently expressed reluctance to intrude into the workings of the legislature by probing legislative motive, and in the absence of any allegation that the ordinance evades some substantive prohibition of the ADEA, there is no basis to call upon the majority of the legislators who supported the ordinance to discuss their private motivations for supporting the mandatory *20 retirement ordinance. The plaintiffs’ allegations establish that the City’s ordinance does not evade any statutory prohibition, and that result does not change simply because some legislators and City officials were allegedly pleased or motivated by the ordinance’s inevitable consequence of creating employment opportunities for younger workers.
*21 ARGUMENT
As early as 1939, long before the enactment of the ADEA, the City adopted a policy of mandatorily retiring police and fire personnel at age 63. The ADEA itself, by exempting mandatory retirement of police and fire personnel from its prohibition on age-based discharge, reflects Congress’ acceptance of such a policy. Nevertheless, the plaintiffs allege that more than sixty years after the City enacted its first mandatory retirement ordinance, the City reenacted that ordinance not for its stated purpose of protecting the public safety, but as a “subterfuge” for age discrimination within the meaning of section 623(j)(2) of the ADEA. The plaintiffs’ allegations, however, fail to state a claim under the ADEA, and the district court therefore erroneously denied the City’s motion to dismiss the plaintiffs’ ADEA claims.
At the outset, we note that, while the district court denied our motion to dismiss, it concluded that this determination merited interlocutor review. App. A4l-A55. That conclusion was correct under the standard governing interlocutor appeal: that the district court’s judgment turned on a controlling, debatable question of law, the resolution of which will materially advance
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the termination of this litigation. See Ahrenholz v. Board of Trustees, 219 F.3d 674, 675 (7th Cir. 2000). The question identified by the district court -- “whether a plaintiff can *22 demonstrate subterfuge under [section] 623(j)(2) [of the ADEA] with any kind of evidence if there is no violation of [section] 623(j)(1)” -- is one of law, because it requires construction of a statutory provision -- the term “subterfuge.” Moreover, the question is controlling because the district court rejected all of the plaintiffs’ other claims under the ADEA: that the mandatory retirement ordinance failed to qualify for the section 623(j) exemption because it improperly expanded the group of police and fire personnel subject to it beyond the class included prior to 1983 in violation of section 623(j)(1); and that the City violated the ADEA by not allowing the plaintiffs to demonstrate their fitness for duty before mandatorily retiring them. See App. A54; see also App. A6-A27. Construction of the subterfuge provision is also open to debate, because it appears to be a question of first impression in the context of section 623(j)(2). And finally, resolution of the question presented would materially advance the ultimate termination of these cases, because it could dispose entirely of the police officer plaintiffs’ suits as well as the ADEA claims by the firefighters, leaving only the firefighters’ due process claim for disposition in the district court. This modest claim, unlike the ADEA claims, would require only limited discovery, if any, for *23 disposition.9 Resolution of the subterfuge claim before embarking on unnecessary and extensive discovery is therefore the most efficient course of action, as the district court correctly determined. See App. A54; Drnek R. 51-3 at 8.
As for the motion to dismiss, in ruling on a motion under Fed. R.Civ.P. 12(b)(6) for failure to state a claim, a court “must take as true all factual allegations in the plaintiff’s pleadings and draw all reasonable inferences in his favor.” Frederick v. Simmons Airlines, Inc., 144 F.3d 500, 502 (7th Cir. 1998). Dismissal is warranted, however, if the plaintiff could “‘prove no set of facts in support of his claim which would entitle him to relief.”’ Stevens v. Umsted, 131 F.3d 697, 700 (7th Cir. 1997) (quoting Conlev v. Gibson, 355 U.S. 41, 45-46 (1957)). This court reviews dismissals pursuant to Rule 12(b)(6) de novo. See Loo-Per Maintenance Service, Inc. v. City of Indianapolis, 197 F.3d 908, 911 (7th Cir. 1999).
In this case, the district court certified its order denying the City’s motion to dismiss the ADEA claims for failure to state a claim. Review of that certified order requires this court to *24 determine whether the plaintiffs have properly stated a claim of subterfuge under section 623(j)(2) of the ADEA. Because the plaintiffs cannot state such a claim, the district court’s denial of the City’s motion to dismiss the plaintiffs’ ADEA claims should be reversed, and judgment should be entered for the City on those claims.
As we explain in part I below, the plain language of section 623(j) authorizes mandatory retirement for any reason, so long as it is not a subterfuge to evade the ADEA’s purposes. To state a claim of subterfuge, the plaintiffs must allege that the City’s ordinance had something other than the characteristics of an ordinary mandatory retirement plan authorized by the 623(j) exemption, and was instead devised as a scheme to evade one of the ADEA’s substantive prohibitions. In other words, the plaintiffs must identify a provision of the ADEA that the mandatory retirement ordinance allegedly “evades.” Without such identification, claims that supporters of the ordinance harbored illicit motives are irrelevant.
And as we explain in part II below, this lawsuit rests on no proper theory. Rather than require the plaintiffs to identify a statutory provision allegedly evaded by the ordinance, the district court determined that the plaintiffs stated a claim of subterfuge by allegations that the ordinance was not motivated by a concern for public safety. That approach contravenes the *25 statute’s plain language, which does not require a public safety justification for mandatory retirement. The district court also determined that the plaintiffs could state a claim of subterfuge by their allegations that the City enacted the ordinance to create employment opportunities for younger workers at the expense of older workers. Those allegations, however, reveal only that the City’s ordinance is a classically valid mandatory retirement plan that functions like any mandatory retirement plan would. Next, the district court determined that a showing of subterfuge necessitates inquiry into the private motivations of individual legislators and City officials for supporting the ordinance. In the absence of any allegation that the ordinance evades some substantive prohibition of the ADEA, however, the broad inquiry that the district court authorized and the plaintiffs wish to undertake is simply unwarranted. Finally, and also contrary to the district court’s conclusion, requiring the plaintiffs to identify a statutory prohibition that has allegedly been “evaded” does not render section 623(j)(2)’s subterfuge prohibition meaningless, but instead gives effect both to the exemption and its subterfuge provision. Because the plaintiffs have failed to state a claim of subterfuge, the City is entitled to judgment on the ADEA claims.
I. MANDATORY RETIREMENT OF POLICE AND FIRE PERSONNEL IS PERMISSIBLE UNDER THE ADEA.
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Section 623(j) expressly exempts local governments from the *26 ADEA’s prohibitions with regard to mandatory retirement of police and fire personnel, so long as mandatory retirement is not a subterfuge to evade the ADEA’s purposes. And a mandatory retirement ordinance evades the ADEA’s purposes only where it circumvents a substantive prohibition of that Act. Where a plan is not alleged to evade a substantive prohibition of the ADEA, allegations that an employer desired by its plan to benefit younger workers are irrelevant.
A. Mandatory Retirement of Police and Fire Personnel Is Authorized For Any Reason Except As A Subterfuge To Evade The ADEA’s Purposes.
“The starting point for interpreting a statute is the language of the statute itself.” E.g., Gwaltnev of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 56 (1987) (internalt quotation marks and citation omitted). Section 623(j) provides, in pertinent part, that “[i]t shall not be unlawful” for a local governmental employer “to discharge any individual because of such individual’s age ... if such action is taken ... with respect to the employment of an individual as a firefighter or as a law enforcement officer ... and pursuant to a bona fide retirement plan that is not a subterfuge to evade the purposes of this chapter.” 29 U.S.C. 623(j) (1994 & Supp. V 1999).
By these explicit terms, section 623(j) exempts mandatory retirement of police and fire personnel from the ADEA’s general *27 prohibition on age-based discharge. The only limitation placed on the exemption is that the mandatory retirement not be “a subterfuge to evade the purposes” of the ADEA. 29 U.S.C. 623(j)(2) (1994 & Supp. V 1999).10 Thus, the section 623(j) exemption allows municipalities to mandatorily retire police and fire personnel for any reason, so long as the retirement plan is not a subterfuge to evade the ADEA’s purposes.
B. A Claim of Subterfuge Requires Allegations That A Mandatory Retirement Ordinance Is A Scheme To Evade A Substantive Prohibition Of The ADEA.
In Public Em-plovees Retirement SVstem v. Betts, 492 U.S. 158 (1988), the Supreme Court held that a “subterfuge to evade the purposes” of the ADEA must be a scheme to violate one of the ADEA’s substantive requirements, and not a law that merely utilizes one of the statute’s express exemptions. The Court considered the meaning of the phrase “subterfuge to evade the purposes” of the ADEA in the context of section 623(f)(2) of that statute, which exempted from the ADEA’s prohibitions certain actions taken in observance of “the terms of ... 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 ....” 492 U.S. at 165 (citing *2829 U.S.C. 623(f)(2) (1982 & Supp. V 1987)).11 The plaintiff in Betts challenged a disability retirement benefit plan under the ADEA on the ground that it denied disability benefits to certain employees on account of their age. See id. at 163-64. The Court held that the term “subterfuge” should be afforded its ordinary meaning as “a scheme, plan, stratagem, or artifice of evasion.” Id. at 167 (internal quotation marks and citation omitted). The Court added that to prove subterfuge, a plaintiff must show that the plan at issue was intended to “evade a statutory requirement”: a plan “cannot be a subterfuge to evade the ADEA’s purposes] ... unless it discriminates in a manner forbidden by the substantive prohibitions of the Act.” Id. at 177. The ADEAs “purposes,” according to the Court, could not be separated from its substantive prohibitions, since those prohibitions were the “best evidence of the evils Congress sought to eradicate.” Id. at 176 *29 (citing United Air Lines, Inc. v. McMann, 434 U.S. 192, 198 (1977) (“the Act is the vehicle by which its purposes are expressed and carried out”).
The Court then concluded that the fact that a challenged disability plan authorized age discrimination could not in itself support a claim of subterfuge. The Court reasoned that because section 623(a) of the ADEA effectively prohibits any agebased retirement plan, any age-based benefit could be said to violate or “evade” section 623(a) of the ADEA. See492 U.S. at 176-77. This approach, the Court found, ‘would in effect render the [section 623(f)(2)] exemption nugatory,” and would also “be facially irreconcilable with the prohibitions” in section 623(a): ‘It is difficult to see how a plan provision that expressly mandates disparate treatment of older workers in a manner inconsistent with the purposes of the Act could be said not to be a subterfuge to evade those purposes ....” Id. at 177. See also id. at 177-78 (“‘Because all retirement plans necessarily make distinctions based on age, I fail to see how the subterfuge language ... could have been intended to impose a requirement which almost no retirement plan could meet.”’) (quoting McMann, 434 U.S. at 207) (White, J., concurring)). Instead, the Court concluded that a benefit plan was not a forbidden subterfuge under the ADEA “so long as the plan is not a method of
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discriminating in other, non-fringe benefit aspects of the *30 employment relationship.” 492 U.S. at 177. Such an interpretation, according to the Court, appropriately hews to
a congressional judgment that age-based restrictions in the employee benefit plans covered by section AD623(f)(2)] do not constitute the “arbitrary age discrimination in employment” that Congress sought to prohibit in enacting the ADEA. Instead, under this construction of the statute, Congress left the employee benefit battle for another day, and legislated only as to hiring and firing, wages and salaries, and other non-fringe-benefit terms and conditions of employment.
Id. The Court determined that any other interpretation of the statute would “eviscerate” section 623(f)(2). Id. In short, the Court concluded, “Congress intended to exempt employee benefit plans from the coverage of the Act except to the extent plans were used as a subterfuge for age discrimination in other aspects of the employment relation.”Id. at 180.
Moreover, in Betts, the Court explained that its construction of the ADEA, while granting ‘employers wide latitude in structuring employee benefit plans,” did not render the “‘not a subterfuge’ language [of section 623(f)(2)] a dead letter.” 492 U.S. at 180. Instead, the Court observed, “[a]ny attempt to avoid the prohibitions of the Act by cloaking forbidden discrimination in the guise of age-based differentials in benefits will fall outside the ... exemption.” Id. The Court then offered two examples of actionable subterfuge. See id. First, the court explained, an employer might engage in subterfuge if it adopted a benefit plan provision designed to *31 retaliate against an employee who had opposed an action made unlawful under the ADEA, filed an age-discrimination complaint, or participated in age-discrimination litigation against the employer. See id. In such a case, the employer’s benefit plan could be viewed as a subterfuge to evade the ADEA’s prohibition on retaliation, 29 U.S.C. § 623(d) (1994). See id. Another example of illegal subterfuge, the Court observed, could arise if an employer reduced all employees’ salaries but at the same time increased benefits for younger workers. See id. Such conduct “might give rise to an inference that the employer was in fact utilizing its benefits plan as a subterfuge for age-based discrimination in wages, an activity forbidden by” section 623(a)(1) of the ADEA. Id.
The same approach should guide construction of the section 623(j) exemption. A mandatory retirement plan cannot be a subterfuge merely because it permits an employer to replace older workers with younger ones -- all mandatory retirement plans do that. To state a claim of subterfuge under section 623(j)(2), a plaintiff must identify some substantive prohibition of the ADEA that they believe the ordinance “evades” other than its general prohibition on age discrimination.
c. Evidence Of Allegedly Illicit Motives For Establishing A Retirement Plan Is Irrelevant Where A Plan Does Not Evade A Statutory Prohibition.
It follows that an employer does not engage in a forbidden *32 subterfuge merely because it prefers younger workers to older ones, and relies on that preference when it decides to avail itself of one of the ADEA’s exemptions. In Bell v. Purdue University, 975 F.2d 422 (7th Cir. 1992), this court made just this point in the context of section 623(f)(2) -- the same section at issue in Betts. There, relying on Betts, this court concluded that the university’s plan, which ended contributions to employee pensions at age 65, was not a subterfuge within the meaning of section 623(f)(2). See id. at 423-24. The court reiterated Betts’ definition of subterfuge, and observed that its inquiry “must focus on whether the [university’s pension plan] is a subterfuge to evade one of the ADEA’s substantive provisions.” Id. at 429. In that case, the plaintiffs had relied on “statements and anecdotal evidence that some [university] officials ... preferred younger faculty,” and claimed that “from this evidence the plaintiffs insisted that a fact finder could draw the inference that the cut in contributions ... was intended to weed out faculty members over 65.” Id. at 429. Rejecting this approach, the court concluded that “the defendants cannot be liable for their motives if their conduct has not evaded the ADEA’s prohibitions.” Id. See also Henn v. National Geographic Society, 819 F.2d 824, 830 (7th Cir.) (“Any early retirement program reduces average age, because only older employees are eligible to retire. That the [employer] favored *33 the results of its program does not condemn the program.”), cert. denied,484 U.S. 964 (1987).12
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In Bell, this court then ultimately held that the plan at issue, which on its face was an age-differential permitted by section 623(f)(2) of the ADEA, did not “evade” any of the ADEA’s relevant substantive prohibitions. See975 F.2d at 429. For example, the plaintiffs contended that the university’s cessation of contributions evaded either the ADEA’s prohibition against wage cuts or involuntary retirement. See id. The court rejected these contentions. Because the plaintiffs had no evidence that the cessation in benefits camouflaged a wage cut to older employees, they could not show that the plan was intended to evade the ADEA’s wage discrimination prohibition. See id. Thus, the plaintiffs could not establish that “the fringe benefit cut ... is anything more than meets the eye -- an age differential in fringe benefits which is permitted under the ADEA.” Id. Nor could the plaintiffs show that the university intended to evade the prohibition against involuntary retirement, because the plan did not require the plaintiffs to choose between retiring at age 65 or losing their pensions entirely. See id. Although the plan took away an incentive for employees to *34 continue working past age 65, the court explained, “taking away an incentive in the form of a fringe benefit is not the kind of evasion prohibited by Betts’ interpretation of the ADEA.” Id.
In short, Bell, like Betts, clearly establishes that there is no subterfuge where there is no allegation or evidence of a violation of a substantive prohibition of the ADEA outside the exemption’s scope. But Bell adds that plaintiffs without such allegations or evidence cannot show subterfuge by claiming merely that an employer favored younger employees or otherwise harbored “illicit” motives for adopting a retirement plan.
II. THIS LAWSUIT RESTS ON NO PROPER THEORY OF LIABILITY UNDER THE ADEA.
Under the framework for analyzing a claim of “subterfuge” described above, the plaintiffs’ claims are insufficient as a matter of law to impose liability on the City. To support a claim advanced in a complaint, the plaintiffs need only provide “a short and plain statement showing the plaintiff is entitled to relief, the purpose of which is to give the defendant notice of the claims and the grounds they rest upon.” Thompson v. Illinois Department of Professional Regulation, 300 F.3d 750, 753 (7th Cir. 2002). SeeFed. R.Civ.P. 8(a). But “if the plaintiff chooses to provide additional facts, beyond the short and plain statement requirement, the plaintiff cannot prevent the defense from suggesting that those same facts demonstrate the plaintiff is not entitled to relief.” Thompson, 300 F.3d at 753-54. Here, *35 because the complaints provide notice of no claim other than one based on supposedly illicit motives not tied to any violation of a substantive policy of the ADEA, it fails to state any claim for which relief can be granted.
The complaints in these cases fail to give the City notice of any claim for which relief could be granted, and the additional facts the plaintiffs chose to provide purporting to support their claim only bolster the conclusion that they are not entitled to relief. In particular, the complaints wholly fail to identify any prohibition of the ADEA that the City’s ordinance allegedly “evades,” and the plaintiffs articulated no such provision in response to the City’s motion to dismiss or motion for certification of the district court’s order. Nor have the plaintiffs claimed to be interested in pursuing any violation of a substantive ADEA provision in the briefs they filed below in response to our motion to dismiss their complaints. To the contrary, they have never identified any feature of the City’s ordinance that distinguishes it from any other valid mandatory retirement ordinance.
As we explain above, the complaints and the plaintiffs’ arguments in support of them below provide fair notice of only one claim -- that the City has no public safety justification for its mandatory retirement ordinance, but instead merely prefers younger workers. That is not, however, a subterfuge to evade any *36 purpose of the ADEA. Section 623(j) does not require an employer to satisfy a court that its mandatory retirement ordinance has a public safety justification; instead it permits an employer to prefer younger workers in safety-sensitive positions.
Rather than require the plaintiffs to identify a statutory prohibition that has allegedly been evaded by the mandatory retirement ordinance, the district court accepted a different approach to stating a claim of subterfuge. The district court concluded that the plaintiffs stated a claim of subterfuge by alleging that the mandatory retirement ordinance was motivated by considerations other than public safety and by alleging that the ordinance was intended to create employment opportunities for younger workers at the expense of older workers. The court further held that the question of subterfuge necessitated inquiry into the private motivations of individual legislators and City officials for supporting the mandatory retirement ordinance. Moreover, according to the district court, the Betts method of analyzing subterfuge we describe above would render the subterfuge provision of section 623(j)(2) superfluous. All of these conclusions were erroneous, as we
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explain below.
A. Allegations That A Mandatory Retirement Plan Was Not Motivated By Public Safety Considerations Do Not State A Claim Of Subterfuge Under Section 623(j)(2).
The plain language of section 623(j) belies the plaintiffs’ contention -- which the district court endorsed -- that an *37 ordinance requiring the mandatory retirement of police and fire personnel is a “subterfuge” to evade the ADEA unless it is justified by concerns for public safety. See Minch R. 1-1 at 8-9; Minch R. 16 at 11-12; Drnek R. 6 at 5. Nowhere does the statute require that an employer who mandatorily retires police and fire personnel be motivated either exclusively or in part by public safety concerns, or that it offer any justification at all for such a policy. Indeed, the Secretary of Health and Human Services has twice been charged by Congress with establishing guidelines that employers could use to retire police or firefighters based on their fitness for duty, yet has been unable to produce guidelines. Plainly Congress has not required public employers to demonstrate the relationship between public safety and age in that context; the inquiry is simply too difficult.
Because nothing in the plain language of section 623(j) requires an employer to justify its use of the exemption on public safety grounds, the “subterfuge” provision cannot be construed to require such a justification. The Supreme Court made precisely this point in Betts. There, the plaintiff contended that section 623(f)(2) exempted age-based distinctions in benefit plans “only when justified by the increased cost of benefits for older workers,” and that although such a requirement did not appear in the statute’s plain language, the requirement could be drawn from the statutory provision that an age-based *38 distinction in a benefit plan could not be a “subterfuge to evade the purposes” of the ADEA. 492 U.S. at 169-70. For this proposition, the plaintiff relied on an interpretive regulation promulgated by the Department of Labor, which provided that the purpose of section 623(f)(2) was to “permit age-based reductions in employee benefit plans where such reductions are justified by significant cost considerations,” and defined “subterfuge” to require a cost-based justification for an agedifferential in benefit plans. Id. at 170.
The Court rejected this contention, expressly holding that “this approach to the definition of subterfuge cannot be squared with the plain language of the statute.” 429 U.S. at 170. The Court observed that the regulation’s “objective cost-justification requirement failed] to acknowledge” the “subjective element” of the term “subterfuge.” Id. Indeed, in reaching this result, the Court declined to defer to the agency’s interpretation of the statute, holding that ‘no deference is due to agency interpretations at odds with the plain language of the statute itself.” Id. As the Court made clear, the “subterfuge” exception to the section 623(f)(2) exemption “cannot be limited in the manner suggested by the regulation.” Id. at 172.
Here, the plaintiffs claim that the only legitimate justification for a mandatory retirement ordinance under section 623(j) is “public safety.” This purported “public safety” *39 justification, however, is no different from the purported costjustification rejected in Betts.Section 623(j) does not contain any public safety requirement, and under Betts, that requirement cannot be manufactured out of the subterfuge provision.
If Congress had intended that “public safety” be the only rationale justifying utilization of the section 623(j) exemption, it could easily have included that requirement in the exemption’s plain language. Indeed, after Betts, Congress amended section 623(f)(2) to add the express requirement that employers demonstrate a cost-justification for age-based benefit plans, and to remove the term “subterfuge” from that section. See Older Workers Benefit Protection Act, Pub. L. No. 101-433, § 103, 104 Stat. 978, 978-89 (1990) [hereafter “OWBPA”]. Section 623(j), in contrast, was not drafted to include any analogous “public safety” requirement, even at the time it was amended -- after Betts -- in 1996, and the court should not read it into the plain statutory language. See, e.g., Bates v. United States, 522 U.S. 23, 29 (1997) (where a requirement does not appear on statutes face, court should not read it into the statute).13
*40 Beyond the obstacle posed by the exemption’s plain language, requiring mandatory retirement of police and fire personnel to be justified on public safety grounds would effectively require employers to demonstrate that “age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business” before engaging in mandatory retirement. 29 U.S.C. § 623(f)(1) (1994). But as this court concluded in Kopec v. City of Elmhurst, 197 F.3d 894 (7th Cir. 1999), Congress could not have intended to require such a showing under section 623(j), because the “bona fide occupational qualification” or “BFOQ” defense is separate and distinct from the section 623(j) exemption. See id. at 902.
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Thus, “[s]ectionin 623(j) would ... accomplish nothing if the exemption from the ADEA were conditioned upon a BFOQ showing; and we are loathe to adopt constructions that render a statutory provision superfluous.”Id.14
*41 If the plain language of section 623(j) were not clear enough, the legislative history of section 623(j) only bolsters our submission. The legislative history makes clear that section 623(j) reflects Congress’s willingness to presume that mandatory retirement of police and fire personnel benefits the public safety rather than require public employers to prove that relationship. For example, advocates of the exemption explained that age limits would ensure that public safety officers are in peak condition. See 141 Cong. Rec. E283-01 (Feb. 7, 1995) (extension of remarks of Rep. Fawell); 141 Cong. Rec. H382201 (Mar. 28, 1995) (statements of Reps. Fawell, Owens, and Weldon). Advocates also observed that, as a matter of medical fact, age directly affects a person’s ability to work as a police officer or firefighter, and that exempting state and local police and fire departments from the ADEA “is literally a life or death matter.” 141 Cong. Rec. H3822-01, 3823 (statement of Rep. Owens); 141 Cong. Rec. S3891-02, 3894-95 (Mar. 14, 1995) (statement of Sen. Mosley-Braun). See Kopec, 193 F.3d 903-04. Furthermore, mandatory retirement was viewed as necessary at least until effective alternatives to age-based policies that had no disparate impact on women and minorities could be developed. *42See 141 Cong. Rec. H3822-01, 3823 (Mar. 28, 1995) (statement of Rep. Owens). These statements thus make plain that a determination that mandatory retirement benefits the public safety is built into the section 623(j) exemption. For that reason, it was unnecessary -- and indeed would have been illogical -- for Congress to require employers to further justify mandatory retirement on public safety grounds.
In short, a claim like the plaintiffs’ -- that an employer who enacts a mandatory retirement ordinance pursuant to section 623(j) engages in illegal subterfuge unless the employer was motivated by public safety concerns -- contravenes the exemption’s plain language and is no basis on which to predicate a claim of subterfuge under the ADEA.
B. A Mandatory Retirement Plan That Creates Employment Opportunities For Younger Workers At The Expense Of Older Workers Is Not A Subterfuge To Evade The Purposes Of The ADEA.
As we explain above, a claim of subterfuge requires a plaintiff to identify a substantive requirement of the ADEA allegedly evaded by the mandatory retirement ordinance. The plaintiffs have never done that here; in fact, the plaintiffs’ allegations demonstrate that the City’s plan is valid, and therefore not a subterfuge.
The only claim the plaintiffs have ever pled or otherwise advanced in this case is that the City’s “real purpose” for enacting the ordinance was to “eliminat[e] from the ranks of the *43 Police [and Fire] Department[s] officers who had surpassed 63 years of age so that, among other reasons, the City could hire and promote younger” police and fire personnel. Minch R. 1-1 at 8-9; Drnek R. 6 at 5. See generally Drnek R. 41. This, in terms, is an allegation that the City used its mandatory retirement plan as a way of removing older workers from the police and fire departments to the benefit of younger workers. But this is no more than the statute allows.
The plaintiffs’ so-called allegations of subterfuge -- that the ordinance was intended to terminate the employment of older workers, replace older workers with younger workers, and create more opportunities for younger workers -- merely describe the inevitable results of any mandatory retirement plan. The very point of mandatory retirement is to remove older workers, and as this court has explained, “[w]hen older employees leave the work force, for whatever reasons, they will often be replaced by younger employees.” Kier v. Commercial Union Insurance Cos., 808 F.2d 1254, 1258 (7th Cir.), cert. denied,481 U.S. 1029 (1987). The replacement of older workers with younger workers therefore merely “represents the normal course of employment histories, and is nothing to marvel at.” Id. In fact, replacement of mandatorily retired workers with younger workers is not only the likely result of a mandatory retirement plan, but may even be necessary in order to run adequately staffed police and fire *44 departments. Yet, under the plaintiffs’ theory, mandatory retirement would be permissible only so long as the City did not hire or promote younger workers to replace the retired workers. This illogical construction of the subterfuge provision renders section 623(j) meaningless; a local government would face a difficult decision if forced to choose between the safety concerns presented on average by older workers, and being short staffed because it was unable to promote or hire younger workers to fill the vacancies created by the mandatory retirement of older employees.
Indeed, because creation of job opportunities and replacement of older workers with younger workers is the consequence of “terminating” older workers under a mandatory retirement plan, the only ADEA prohibition the plaintiffs’ claims could remotely be said to invoke is its prohibition on age-based discharge. See29 U.S.C. § 623(a)(1) (1994). But of course, any
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mandatory retirement plan for police and fire personnel under section 623(j) could be viewed as evading that prohibition; any mandatory retirement age is, of course, an age-based discharge. Such an interpretation of the subterfuge provision would therefore eviscerate the section 623(j) exemption and is precluded by Betts’ construction of the subterfuge language. Thus, Congress must have intended by section 623(j) to exempt mandatory retirement plans for police and fire personnel from the *45 ADEA’s prohibition on age-based discharge, except to the extent such plans were used as a subterfuge for age discrimination “in other aspects of the employment relation.” Betts, 492 U.S. at 180. A plaintiff must therefore identify some substantive prohibition of the ADEA allegedly evaded by a mandatory retirement plan, other than the prohibition on agebased discharge, to avoid wiping out the exemption. The plaintiffs did not do so here.15
In short, the plaintiffs have claimed not that the City’s ordinance evades any provision of the ADEA, but that the ordinance does precisely what any mandatory retirement plan would inevitably do and operates no differently than any mandatory retirement plan would. Their own theory of liability therefore demonstrates that the mandatory retirement ordinance is nothing more than meets the eye. Such allegations cannot possibly state a claim of “subterfuge” within the meaning of section 623(j), and therefore fail to state any claim upon which relief could be granted.
*46 c. The Private Motivations Of Individual Legislators And City Officials For Supporting The Mandatory Retirement Ordinance Cannot Invalidate An Otherwise Valid Ordinance.
Keeping the focus on whether a plaintiff has raised allegations that an age-based retirement plan evades a statutory prohibition avoids the untoward path that the plaintiffs and the district court envisioned for the balance of this litigation. The plaintiffs alleged, and the district court accepted, that the City had an allegedly “improper” motive for instituting the mandatory retirement plan. But as Bell makes clear, a valid plan cannot be rendered invalid even if some legislators or City officials allegedly favored the inevitable effects of the plan. For this reason, the district court’s determination that the plaintiffs should be permitted to inquire into the motivations of City council members and other City officials for supporting the ordinance based merely on their allegation of these effects as evidence of subterfuge, see App. A20-A25, was erroneous and should be rejected.
As we explain above, the plaintiffs’ claim that City officials and legislators intended to use the ordinance to “eliminate” older workers in order to create employment opportunities for younger workers establishes nothing illegal or remarkable about the mandatory retirement ordinance, or that it evades any statutory prohibition, and thus does not state a claim that the ordinance is a subterfuge. That result cannot possibly *47 change simply because some legislators or City officials were allegedly pleased by the ordinance’s consequences, or even motivated by those consequences. The plaintiffs’ claim, in fact, is not substantively different from the claim rejected in Bell that university officials’ preference for younger faculty implied that the benefit plan at issue there was designed to weed out older faculty. See Bell, 975 F.2d at 429. Instead, to survive a motion to dismiss, the plaintiff must allege that the plan is a subterfuge to evade one of the ADEA’s substantive provisions. See id. at 429-30.
This approach is consistent with the courts’ generally cautious approach toward inquiry into legislative motive. Although such inquiry is permitted in the context of certain constitutional claims, even then, courts are ordinarily reluctant “to probe the motives of legislators and administrators.” Grossbaum v. Indiana-Polis-Marion Countv Building Authoritv, 100 F.3d 1287, 1292-94 (7th Cir. 1996), cert. denied,520 U.S. 1230 (1997).16 This guarded approach is based on a number of both “theoretical” and “practical” factors. See id. First, as this *48 court has explained, “the text of the Constitution prohibits many government actions but makes no mention of governmental mentes reae (i.e., guilty minds),” and “[w]e are governed by laws, not by the intentions of legislators.”’ Id. (quoting Conrov v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring in judgment)). A second problem, this court observed, is that legislators often support laws for numerous reasons: “Government action may be taken for a multiplicity of reasons, and any number of people may be involved in authorizing the action.... Moreover, once a court finds an illicit motive, may the legislature ... ever take the same action again without the imputation of an improper intent?” Id. at 1293. Indeed, the Supreme Court emphasized this very point in the context of federal preemption, concluding that “inquiry into legislative motive is often an unsatisfactory venture. What motivates one legislator to vote for a statute is not necessarily what motivates scores of others to enact it.” Pacific Gas & Electric Co. v. State Energy Resources Conservation & Develo-Pment Commission, 461 U.S. 190, 216 (1983). Thus, in Pacific Gas, the Court accepted California’s legitimate “stated purpose” for the regulation at issue, and declined to examine evidence of the legislators’ alleged additional, improper motives. See id.17
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*49 Moreover, if the court were to permit the plaintiffs to inquire into legislative motive in this case, the plaintiffs would have to demonstrate not merely that the sponsor of the ordinance or one or two alderman harbored “impermissible” motives, but that the majority of the fifty-member City Council ratified those allegedly impermissible motives when it passed the ordinance. See Matthews v. Columbia County, 2002 WL 1337303 (11th Cir. June 19, 2002); Mason v. Village of El Portal, 240 F.3d 1337, 1339-40 (11th Cir. 2001). In Matthews, for example, the plaintiff challenged a county board’s decision to eliminate Matthews’ job. See2002 WL 1337303, at *1. A jury found that *50 one member of the three-member board was motivated by a desire to retaliate against Matthews for her “protected speech activity” in violation of the First Amendment, and that the two other members of the board were influenced by that improperly motivated member. Id. The jury returned a verdict for Matthews, but the Ninth Circuit reversed, concluding that the “County can be subject to liability only if the commission itself acted with an unconstitutional motive. An unconstitutional motive on the part of one member of a three member majority is insufficient to impute an unconstitutional motive to the [board] as a whole.” Id. at *2. The court explained:
Lawmakers’ support for legislation can come from a variety of sources; one commissioner may support a particular piece of legislation for a blatantly unconstitutional reason, while another may support the same legislation for perfectly legitimate reasons. A well-intentioned lawmaker who votes for the legislation -even when he votes in the knowledge that others are voting for it for an unconstitutional reason and even when his unconstitutionally motivated colleague influences his vote -- does not automatically ratify or endorse the unconstitutional motive.
Id. at *3. The court thus declined to force the “well-intentioned lawmaker ... either to vote against his own view of what is best for his county or to subject his county to [se]ection 1983 liability” by voting for the measure. Id.
In this case, the district court’s approach to subterfuge would therefore result in depositions of the majority of the City Council to determine whether that majority voted for the *51 mandatory retirement ordinance for “improper” reasons, notwithstanding the plaintiffs’ failure to allege any improper reasons. Even then, the City Council would presumably remain free, even after an adverse decision in this case, to reenact an identical mandatory retirement ordinance if the legislators can purify their motives to the satisfaction of the district court. Leaving aside the likelihood that this approach to litigation under section 623(j) will be a long road to a dead end, it is unwarranted where, as here, the plaintiffs do not articulate any substantive provision of the ADEA that has been violated, as we explain above. Having failed to identify such a provision, the best evidence of what motivated the majority of the City Council to pass the ordinance is the ordinance itself, which provides that it was motivated by public safety concerns. See Drnek R. 10, exh. C (Chicago City Council, Journal of Proceedings, May 17, 2000, at 32899-32901). And there is no doubt that the majority of the City Council supported that concededly “legitimate” motivation by passing the ordinance.18 In sum, there is simply no basis to invalidate this ordinance based on supposedly illicit legislative motivation when even the plaintiffs do not believe that it infringes any statutory policy except the overarching *52 policy against age discrimination to which section 623(j) is an exception.
D. Section 623(j)(2)’s “Subterfuge” Provision Is Not Superfluous.
In the district court’s view, application of the Betts subterfuge analysis to section 623(j) would render that section’s subterfuge provision meaningless. That conclusion was erroneous; a plaintiff could establish “subterfuge” under the 623(j) exemption in a number of ways. For instance, the retaliation example offered by the Court in Betts applies with equal force to the section 623(j) exemption. Accordingly, a plaintiff might state a claim of subterfuge under section 623(j) if he alleged that a mandatory retirement ordinance was enacted to retaliate against an employee who had complained of age discrimination or participated in ADEA litigation against the City. Such a claim would allege that the mandatory retirement ordinance was intended to evade the ADEA’s prohibition on retaliation, see29 U.S.C. 623(d) (1994). A plaintiff might also state a claim of subterfuge if a municipality enacted a mandatory retirement ordinance requiring police officers to retire at age 63, but at the same time created a new, lower-paying position and gave all mandatorily retired police officers preference for the newly
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created position. Such a claim would allege that the mandatory retirement ordinance was designed to circumvent the ADEA’s prohibitions on age-based discrimination in compensation, see*5329 U.S.C. § 623(a)(1) (1994). Although we are confident that other examples of potential subterfuge exist, these two examples, as in Betts, “suffice to illustrate the not-insignificant protections provided to older employees by the subterfuge proviso” of section 623(j). Betts, 492 U.S. at 180.
In the district court’s view, application of Betts to section 623(j) was inappropriate because “the exception in 623(f)[(2)] related only to fringe benefits, but left undisturbed all of the non-fringe aspects of the employment relationship that are protected by § 623(a), the ADEA’s primary enforcement mechanism.” App. A51 internalt quotation marks and citations omitted). Unlike section 623(f)(2), the court observed, section 623(j) “exempts employers entirely from the protections of § 623(a). That is, if an employee is mandatorily retired, there is nothing left of the employment relationship to protect.” Id. Although the court acknowledged that the plaintiffs could state a claim of subterfuge by alleging that a mandatory retirement ordinance was retaliatory, the court opined that “if that were the only manner in which a plaintiff could demonstrate subterfuge,” then the subterfuge provision of section 623(j)(2) would “provide[] no protection that is not already provided elsewhere in the ADEA, and would be rendered utterly meaningless.” Id.
The district court’s view that section 623(j)’s “subterfuge” *54 provision describes separate, substantive protections apart from those delineated in the other provisions of the ADEA is incorrect. First, the retaliation example described in Betts is inconsistent with district court’s view that “subterfuge” must offer a protection beyond the ADEA’s other prohibitions. In Betts, the court determined that a retaliatory plan could be a subterfuge. Second, the district court’s view is inconsistent with section 623(j)(2)’s plain language. As we explain above, section 623(j)(2) allows age-based discharge if accomplished through “a bona fide ... retirement plan that is not a subterfuge to evade the purposes of this chapter.”29 U.S.C. 623(j)(2) (1994 & Supp. V 1999). By its plain terms, the subterfuge provision does not provide separate substantive protection it is a reminder that the other substantive prohibitions of the ADEA cannot be evaded. As such, the subterfuge provision does provide significant protection -- it ensures that mandatory retirement will not be used as a means of discriminating against older workers in other aspects of their employment. That is the very interpretation of the subterfuge language articulated in Betts. See 492 U.S. at 177-81.
E. The Controlling Question Of Law Should Be Answered In The Negative And Judgment Should Be Entered For The City On The ADEA Claims.
As we explain above, the district court certified its order denying the City’s motion to dismiss the ADEA claims because that *55 order turned on a controlling, debatable question of law, the resolution of which would materially advance the ultimate termination of the litigation: “whether a plaintiff can demonstrate subterfuge under [section] 623(j)(2) [of the ADEA] with any kind of evidence if there is no violation of [section] 623(j)(1).” App. A54 (emphasis in original). In this case, as we explain above, this question should be answered in the negative when, as here, the plaintiff does not identify any other provision of the ADEA that is violated by a mandatory retirement law. When, as here, a plan complies with section 623(j)(1) and a plaintiff fails to allege or identify any other prohibition in the ADEA that a mandatory retirement plan “evades” within the meaning of section 623(j)(2), other than its general prohibition on age discrimination, then the plaintiff cannot show subterfuge under section 623(j)(2) and there is no violation of the ADEA.
In the end, however, the precise formulation of the certified question has minimal practical significance. This court has made clear that on interlocutory appeal pursuant to section 1292(b), “we are not constrained on our appellate review to the controlling question alone, but may consider other pertinent issues reflected in the district court’s order.” Hillman v. Resolution Trust Corp., 66 F.3d 141, 143-44 (7th Cir. 1995). That is because “an appeal under section 1292(b) brings up the whole certified order[,] ... rather than just the legal *56 issue that led to certification.” United Air Lines v. Mesa, 219 F.3d 605, 609 (7th Cir., cert. denied,531 U.S. 1036 (2000). Accord, e.g., International Brotherhood of Teamsters v. PhiliP Morris, Inc., 196 F.3d 818, 821-22 (7th Cir. 1999). See also28 U.S.C. § 1292(b) (2000). Thus, regardless how the controlling question is phrased or precisely answered, the underlying order of the district court that gave rise to the certification is itself before this court. And it is clear the district court denied the motion to dismiss only because of its erroneous construction of section 623(j), which permitted the plaintiffs to prove subterfuge by reference to allegedly illicit motives not tied to a violation of any statutory policy other than the general prohibition on age discrimination.
Thus, the order certified for interlocutor appeal in this case erroneously denied the City’s motion to dismiss the plaintiffs’
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ADEA claims. The plaintiffs have failed to identify a relevant statutory prohibition that the ordinance evades, and have therefore failed to state a claim of subterfuge under section 623(j)(2) of the ADEA. Accordingly, the district court’s judgment should be reversed, and the district court directed to enter judgment for the City on the ADEA claims.

*57 CONCLUSION
For the foregoing reasons, the judgment of the district court denying the City’s motion to dismiss the plaintiffs’ ADEA claims should be reversed, and judgment for the City should be entered on the ADEA claims.

*58 STATEMENT CONCERNING ORAL ARGUMENT
This appeal presents an issue of first impression, requiring the court to define the scope of the ADEA’s exemption for mandatory retirement of police and fire personnel. The district court held that a mandatory retirement ordinance that was intended to retire older workers and replace them with younger workers could be a subterfuge to evade the ADEA’s purposes, and that the plaintiffs should be permitted to inquire into the motivations of City officials and legislators for supporting the ordinance in order to support their subterfuge claim. The City has engaged in mandatory retirement for more than sixty years, since long before the ADEA’s enactment, and in passing the ordinance at issue in this case made clear that its purpose was to protect the public safety. Accordingly, this case presents critical questions of law and public policy. Oral argument is therefore warranted to explore whether the district court’s ruling was proper.
Appendix not available.

Footnotes

1

Plaintiffs Drnek and Cosentino were Chicago police officers. Plaintiffs Minch and Graf were Chicago firefighters.

2

The court also denied the motion as to the due process claims of the firefighter plaintiffs, but granted the motion as to the due

process claims of the police officer plaintiffs. App. A27-A40. Those claims are not at issue on appeal, and do not affect the

jurisdiction of this court over the ADEA claims. See, e.g., Massey Ferguson v. Gurley, 51 F.3d 102, 105 (7th Cir. 1995).

3

As we explain above, the plaintiffs also raised due process claims, but those claims are not the subject of this appeal.

4

The 1939 ordinance provided: “The age of sixty-three years shall be the maximum age for the employment of policemen and

firemen in the classified civil service of the city. Every policeman and every fireman in the classified civil service of the city who

has attained the age of sixty-three years shall forthwith and immediately be retired from service.” Municipal Code of Chicago, Ill.

§ 25-37 (1939).

5

The amended ordinance provided:

The age of seventy years shall be the maximum age for legal employment of sworn members of the Police Department and

members of the uniformed service of the Fire Department in the classified career service of the City. Every sworn members [sic] of

the Police Department and every member of the uniformed service of the Fire Department in the classified career service of the

City who has attained the age of seventy years shall forthwith and immediately be retired from service. No sworn member of the

Police Department or member of the uniformed service of the Fire Department shall be subject to mandatory retirement based on

age before attaining the age of seventy, except where the Commissioner of Personnel, in conjunction with the Fire Commissioner

or the Police Superintendent and after consultation with members of the City Council Committee on Administration,

Reorganization, and Personnel, determines for a particular title or classification that age is a bona fide occupational qualification

reasonably necessary to the normal operation of the Department in which the individual is employed. Nothing in this Section shall

preclude the Departments of Police and Fire from maintaining, revising, or establishing additional performance standards, based on

factors other than age, for all sworn members of the Police Department and all members of the uniformed service of the Fire

Department, which standards must be met in order for sworn members of the Police Department and members of the uniformed

service of the Fire Department to remain in the active service of these Departments, the health, welfare, and safety of the public

requiring the same.

Municipal Code of Chicago, Ill. § 25-37 (1984).

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6

March 3, 1983, was the date that the Supreme Court upheld the extension of the ADEA to state and local governments against

Tenth Amendment attack in EEOC v. Wyoming, 460 U.S. 226 (1983).

7

The 1988 mandatory retirement ordinance provided:

The age of sixty-three years shall be the maximum age for legal employment of sworn members of the Police Department and

members of the uniformed service of the Fire Department. Every sworn member of the Police Department and every member of

the uniformed service of the Fire Department who has attained the age of sixty-three years prior to December 31, 1993, shall

forthwith and immediately be retired from service.

Municipal Code of Chicago, Ill.§ 25-37 (1988).

8

The City also argued that the ordinance could not be a subterfuge to evade the ADEA’s purposes because it merely reinstated,

following the 1996 exemption, the same age requirement that was in place before the ADEA’s enactment, and because it was part

of an overall, bona fide system of retirement benefits. The district court rejected these arguments. App. A19-A20.

9

The district court determined that resolution of the question in the City’s favor would dispose of the firefighter plaintiffs’ due

process claim as well because that claim depends upon the firefighter plaintiffs’ ability to state a claim under the ADEA. See App.

A54; see also App. A29-A32. This rationale would provide an additional reason why disposition of the ADEA claim would

materially advance the ultimate termination of the litigation and why the question is controlling.

10

There is no claim in this case that the City’s mandatory retirement plan was not “bona fide” within the meaning of section

623(j)(2).

11

Although Betts involved a different ADEA provision, the subterfuge language of the two provisions is virtually identical.

Compare29 U.S.C. § 623(j)(2) (1994 & Supp. V 1999) (authorizing mandatory retirement of police and fire personnel when

accomplished “pursuant to a bona fide ... retirement plan that is not a subterfuge to evade the purposes of this chapter) with29

U.S.C. § 623(f)(2) (1982 & Supp. V 1987) (authorizing actions taken in observance of “the terms of ... 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”).

Other courts have consulted Betts’ definition of “subterfuge” in construing section 623(j). See, e.g., Knight v. Georgia, 992 F.2d

1541, 1545-46 (11th Cir. 1993) (“precedents construing the phrase ‘subterfuge to evade [the ADEA]”’ “should properly be

consulted to give meaning to the term ‘subterfuge’ as it appears in” section 623(j)) (brackets in original) (citation omitted).

12

Henn’s earlier discussion of subterfuge in the context of section 623(f)(2) of the ADEA, see819 F.2d at 827, is rendered obsolete

by Betts and Bell, as is the discussion of that section in EEOC v. Home Insurance Co., 672 F.2d 252 (2d Cir. 1982), on which the

district court relied.

13

Nor, for that matter, was section 623(j) amended after Betts to remove its “subterfuge” language. As the Eleventh Circuit explained

in Knight v. Georgia, 992 F.2d 1541 (11th Cir. 1993), this omission is significant. In Knight, the court held that it could “infer ...

from the fact that Congress removed the subterfuge language from [section 623(f)(2)] while leaving it unaltered in [section 623(j)]

... that the OWBPA was meant to modify only [section 623(f)(2)]. Had Congress also intended to redefine the term subterfuge as it

appears in [section 623(j)], we believe that it would have done so expressly.” Id. at 1546.

14

Indeed, the legislative history of the exemption’s original enactment suggests that Congress actually intended the exemption to

relieve local governments from the burden of relying on the BFOQ defense with regard to mandatory retirement of police and fire

personnel:

There is a very strong need for this exemption at this time. As of March of this year 33 States or localities were facing litigation by

the EEOC on this issue. Numerous other private suits have also been filed, threatening fiscally pressed State and local governments

with potential added litigation costs. There is no uniformity in this litigation and much uncertainty of how a bona fide occu-

Pational Qualification defense will be treated.”

132 Cong. Rec. S16850-02, 16,865 (Oct. 16, 1986) (statement of Sen. Ford) (emphasis added).

15

The plaintiffs failed to make such an identification notwithstanding their agreement that Betts’ definition of “subterfuge” applies to

this case, see Minch R. 16 at 11 n.7, 1819; Minch R. 59 at 10-12, and notwithstanding our position -- which we took repeatedly in

the district court and in our petition for permission to appeal, see Drnek R. 33 at 9-10; Drnek R. 46 & Minch R. 56 at 15-16

(attaching petition) -- that the only substantive prohibition of the ADEA even remotely invoked by their claims was the prohibition

on age-based discharge.

16

Even in Arlington Heights v. Metro-politan Housing Development Corp., 429 U.S. 252 (1977), on which the plaintiffs primarily

relied in the district court, the Court acknowledged that calling legislators to testify regarding “the purpose of the official action” is

reserved for “extraordinary instances.” Id. at 268. See also id. at 268 n.18 (“Placing a decisionmaker on the stand is therefore

‘usually to be avoided.”’) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971)).

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17

Likewise, in Fraternal Order of Police v. City of Hobart, 864 F.2d 551 (7th Cir. 1988), a case involving allegations that a city

council’s enactment of an ordinance violated the First Amendment, this court held that evidence of legislative motive was

inadmissible. In that case, the plaintiffs were a group of police officers who had supported the opposing candidate during the

mayor’s primary campaign. See id. at 553. A few weeks after the primary election, the council enacted an ordinance requiring all

City employees to work an average of 40 hours per week, and the plaintiffs claimed that the only motive for enactment of the

ordinance was to punish the police for having opposed the mayor in the primary. See id. The ordinance was applicable “citywide”

on its face, but affected only the police department, whose employees worked fewer than 39 hours per week, and the fire

department. See id. at 553, 556. The court concluded that the principle “that courts ‘will not strike down an otherwise constitutional

statute on the basis of an alleged illicit legislative motive’ ... survives undiminished in cases such as this where the statute or

ordinance does not single out particular individuals or groups for benefits or burdens and is not challenged as discriminating on

invidious grounds such as race, religion, and sex.” Id. at 554 (quoting United States v. O’Brien, 391 U.S. 367, 383 (1968)). In this

case, the challenged mandatory retirement ordinance applies to all police officers and firefighters, and is alleged to “discriminate”

on the basis of age, rather than on any invidious basis. Inquiry into legislative motive should likewise be inappropriate here.

18

As an aside, it bears noting that even the allegedly “illicit” or “non-public safety” reasons the plaintiffs allege motivated the

ordinance are related to the stated purpose of protecting the public safety.

End of Document

21

 
 Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307760...

2002 WL 32307760 (C.A.7) (Appellate Brief) United States Court of Appeals, Seventh Circuit.
Donald DRNEK, James D. Minch, Richard A. Graf and Richard Cosentino, Plaintiffs-Appellees, v.
CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellant.
Nos. 02-2587 & 02-2588. 2002.
Appeal Pursuant to 28 U.S.C. 1292(b) from the Northern District of Illinois, Eastern Division Nos. 01 C 0840 & 01 C 2586 The Honorable Elaine E. Bucklo, Judge Presiding

Reply Brief of Defendant-Appellant City of Chicago

Mara S. Georges, Corporation Counsel, of the City of Chicago, Suite 800, 30 North LaSalle Street, Chicago, Illinois 60602, (312) 744-3564.

Lawrence Rosenthal, Deputy Corporation Counsel, Benna Ruth Solomon, Chief Assistant Corporation Counsel, Myriam Zreczny, Senior Counsel, Of Counsel.
*i TABLE OF CONTENTS

Table of Authorities .......................................................................................................................................................................

iii

Argument ...........................................................................................................................................................................................

1

I. THE ADEA PERMITS A CHALLENGE TO MANDATORY RETIREMENT OF POLICE AND

1

FIREFIGHTERS ONLY WHEN A CHALLENGED RETIREMENT LAW OR POLICY VIOLATES

SOME PROVISION OF THE ADEA OTHER THAN ITS PROHIBITION ON MANDATORY

RETIREMENT ................................................................................................................................................................................

A. Mandatory Retirement Of Police And Fire Personnel Is Permissible For Any Reason Except As A

2

Subterfuge To Evade The ADEA’s Purposes. .....................................................................................................................

B. A Claim of Subterfuge Requires Allegations That A Mandatory Retirement Ordinance Is A Scheme

3

To Evade A Substantive Prohibition Of The ADEA. .......................................................................................................

C. Evidence Of Allegedly Illicit Motives For Establishing A Retirement Plan Is Irrelevant Where A

11

Plan Does Not Evade A Statutory Prohibition. ...................................................................................................................

II. THIS LAWSUIT RESTS ON NO PROPER THEORY OF LIABILITY UNDER THE ADEA. .............

12

A. Allegations That A Mandatory Retirement Plan For Police And Fire Personnel Was Not Motivated

14

By Public Safety Considerations Do Not State A Claim Of Subterfuge. ..................................................................

B. A Mandatory Retirement Plan That Creates Employment Opportunities For Younger Workers At

19

The Expense Of Older Workers Is Not A Subterfuge To Evade The Purposes Of The ADEA. .....................

C. The Private Motivations Of Individual Legislators And City Officials For Supporting The

23

Mandatory Retirement Ordinance Cannot Invalidate An Otherwise Valid Ordinance. ......................................

1

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D. Section 623(j)(2)’s “Subterfuge” Provision Is Not Superfluous. ........................................................................... *ii E. The Controlling Question Should Be Answered In The Negative And Judgment Should Be Entered For The City On The ADEA Claims. ..................................................................................................................... Conclusion. .......................................................................................................................................................................................
*iii TABLE OF AUTHORITIES CASES Auerbach v. Board of Education, 136 F.3d 104 (2d Cir. 1998) .................................... Bell v. Purdue University, 975 F.2d 422 (7th Cir. 1992) ................................................. Conley v. Gibson, 355 U.S. 41 (1957) .................................................................................... EEOC v. Aramark Corp., 208 F.3d 266 (D.C. Cir. 2000) ............................................... Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998), cert. denied, 525 U.S. 1093 (1999) ............................................................................................................................. Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000) ............................................................... Graczyk v. United Steel Workers of America, 763 F.2d 256 (7th Cir.), cert. denied, 474 U.S. 970 (1985) ....................................................................................................... Health Cost Controls v. Skinner, 44 F.3d 535 (7th Cir. 1995) ...................................... Hunt v. City of Markham, 219 F.3d 649 (7th Cir. 2000) ................................................. Huels v. Exxon Coal USA, Inc., 121 F.3d 1047 (7th Cir. 1997) ................................... Karlen v. City Colleges of Chicago, 837 F.2d 314 (7th Cir.), cert. denied, 486 U.S. 1044 (1988) ............................................................................................................................. Knight v. Georgia, 992 F.2d 1541 (11th Cir. 1993) .......................................................... Kopec v. City of Elmhurst, 193 F.3d 894 (7th Cir. 1999) ................................................ *iv Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (8th Cir. 1996) ........... Kyle v. Morton High School, 144 F.3d 448 (7th Cir. 1998) ........................................... Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99 (2d Cir. 1999) ...... Matthews v. Columbia County, 294 F.3d 1294 (11th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3519 (U.S. Dec. 2, 2002) (No. 02-1114) ............................... Neitzke v. Williams, 490 U.S. 319 (1989) .............................................................................. Public Employees Retirement System v. Betts, 492 U.S. 158 (1989) ..........................
2

25 26
28
10,11 2,11,23,24
21 6,7,15
6
4 18-19
22 23
4 10,11
5-6 5
6,15 21
6,7,15 23-24
22 passim

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307760...
Quinones v. City of Evanston, 58 F.3d 275 (7th Cir. 1995) ........................................... Quinones v. City of Evanston, 829 F. Supp. 237 (N.D. Ill. 1993), aff’d, 58 F.3d 275 (7th Cir. 1995) ......................................................................................................................... Sanjuan v. American Board of Psychiatry and Neurology, 40 F.3d 247 (7th Cir. 1994), cert. denied, 516 U.S. 1159 (1996) ............................................................................ Solon v. Gary Community School Corp., 180 F.3d 844 (7th Cir. 1999) .................... Swierkiewicz v. Sorema, 534 U.S. 506 (2002) ..................................................................... Thompson v. Illinois Department of Professional Regulation, 300 F.3d 750 (7th Cir. 2002) ........................................................................................................................................... United Air Lines v. McMann, 434 U.S. 192 (1977) ........................................................... United States v. Zucca, 351 U.S. 91 (1956) .......................................................................... STATUTES *v 29 U.S.C. 623(a)(1) (2000) ................................................................................................... 29 U.S.C. 623(f)(2) (2000) .......................................................................................................... 29 U.S.C. 623(j) (2000) ................................................................................................................ 29 U.S.C. § 623(k) (2000) ........................................................................................................... 29 U.S.C. § 630(j) (2000) ............................................................................................................ 29 U.S.C. § 630(k) (2000) ........................................................................................................... Older Workers Benefit Protection Act, Pub. L. No. 101-433, § 103, 104 Stat. 978 (1990) ......................................................................................................................................... Age Discrimination in Employment Amendments of 1986, Pub. L. No. 99-592, § 3, 100 Stat. 3342 (1986) ........................................................................................................... Age Discrimination in Employment Amendments of 1996, Pub. L. No. 104208, § 119, 110 Stat. 3009 (1996) ............................................................................................

5 18
13
4,10,11 13
12-13
5,10 4
11 4,6,17 passim
19 19 19 passim
7
6,16

*1 ARGUMENT
The plaintiffs urge affirmance by asserting that the ADEA permits mandatory retirement of police and firefighters “for Public safety purposes, not for any purpose.” Response Brief of Plaintiffs-Appellants at 19 (emphasis in original) [hereafter cited as “Drnek Br.”]. The ADEA does not, however, contain any requirement that state or local governments prove that public safety concerns motivated the adoption of a challenged mandatory retirement law. The legal theory on which this lawsuit rests -- as well as the construction of the ADEA on which the district court relied when it refused to dismiss the plaintiffs ADEA claim -- is without merit.
3

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I. THE ADEA PERMITS A CHALLENGE TO MANDATORY RETIREMENT OF POLICE AND FIREFIGHTERS ONLY WHEN A CHALLENGED RETIREMENT LAW OR POLICY VIOLATES SOME PROVISION OF THE ADEA OTHER THAN ITS PROHIBITION ON MANDATORY RETIREMENT.
The ADEA’s plain language exempts mandatory retirement of police and fire personnel from the ADEA’s reach provided it is not a “subterfuge to evade the purposes of this [statute].” 29 U.S.C. § 623(j)(2) (2000). The Supreme Court has already construed this very phrase, holding that a retirement plan “cannot be a subterfuge ... unless it discriminates in a manner forbidden by the substantive provisions of the Act.” Public Employees Retirement System v. Betts, 492 U.S. 158, 176 (1989). *2 And this court has made clear, relying on Betts, that if a plan does not discriminate in a manner forbidden by the ADEA’s substantive prohibitions, then even an employer’s expressed preference for younger workers does not render the plan a subterfuge. See Bell v. Purdue University, 975 F.2d 422, 429 (7th Cir. 1992). Rather than confront these precedents directly, the plaintiffs weakly dismiss Betts and Bell as “invalid” and construe “subterfuge” in a manner that requires a departure from the ADEA’s plain language.
A. Mandatory Retirement Of Police And Fire Personnel Is Permissible For Any Reason Except As A Subterfuge To Evade The ADEA’s Purposes.
In response to our submission that section 623(j) authorizes mandatory retirement for any reason, so long as the plan is not a subterfuge to evade the ADEA’s purposes, the plaintiffs assert that “Congress did not intend for states and municipalities to have carte blanche to mandatorily retire public safety workers for any reason.” Drnek Br. at 19 (emphasis in original). We agree. Mandatory retirement is prohibited when it is a subterfuge to evade the purposes of the ADEA. But it is not one of the ADEA’s purposes to prohibit mandatory retirement of police and firefighters. To the contrary, the ADEA permits mandatory retirement for these employees, and nothing in section 623(j)(2) provides that this exemption applies only when a *3 retirement law or policy has a public safety justification. Just as the Supreme Court in Betts refused to construe the ADEA’s exemption for retirement benefits to be limited to age classifications that have a cost justification, the “subterfuge” language in section 623(j)(2) does not require an employer to have any particular kind of justification in mind to qualify for the exemption; employers are merely forbidden to endeavor to evade a purpose of the statute. See Brief of DefendantsAppellants at 31-34 [hereafter cited as “Opening Br.”]. And as section 623(j) makes evident, it is not among the “purposes” of the ADEA to forbid mandatory retirement for police and firefighters.
B. A Claim of Subterfuge Requires Allegations That A Mandatory Retirement Ordinance Is A Scheme To Evade A Substantive Prohibition Of The ADEA.
We explain in our opening brief and again above that Betts rejects the construction of the phrase “subterfuge to evade the purposes” of the A.DEA advanced by the plaintiffs and the district court. And because Betts construed a subterfuge provision identical to section 623(j)(2)’s, its framework should guide this case.
The plaintiffs assert -- and their amicus even more vehemently -- that Betts is “invalid” because its “analysis” was “conclusivley rejected” by Congress in the Older Workers Benefit *4 Protection Act (“OWBPA”) . See Drnek Br. at 25-26; Brief of Amicus Curiae AARP in Support of Plaintiffs-Appellees at 8-13 [hereafter “AARP Br.”]. This assertion gets things exactly backwards. The OWBPA does not repudiate the construction of the phrase “subterfuge to evade the purposes of” the A.DEA adopted in Betts; instead, in the OWBPA Congress altogether rewrote section 623(f)(2) the exemption for retirement, pension and insurance benefits excising in the process the term “subterfuge.” See Pub. L. No. 101-433, § 103, 104 Stat. 978, 978-89 (1990). To be sure, the effect of the OWBPA was to overturn the result in Betts, but the OWBPA did nothing to alter the construction of the phrase “subterfuge to evade the purposes” of the A.DEA adopted in Betts. When Congress changes the language of a statute to overturn the result in a prior case, that action does not render the prior cases construction of the now-repealed language erroneous. See, e.g., United States v. Zucca, 351 U.S. 91, 95 n.8 (1956); Gorbach v. Reno, 219 F.3d 1087, 1097 (9th Cir. 2000) (en banc); Huels v. Exxon Coal USA, Inc., 121 F.3d 1047, 1050 n.l (7th Cir. 1997).1 Had Congress enacted a definition of the *5 phrase “subterfuge to evade the purposes of [the ADEA]” -- rather than removed it from the statute -- and also provided that the new definition would apply to the ADEA in its entirety, that new definition would apply here. It did not. Thus, Betts, because it construes language identical to that contained in section 623(j)(2)ls subterfuge
4

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307760...
provision, remains fully applicable to section 623 (j) (2) .
Accordingly, Betts is properly consulted to interpret the phrase “subterfuge to evade the purposes” of the ADEA. Indeed, this court relied on Betts when construing section 623(j)(2) in Kopec v. City of Elmhurst, 193 F.3d 894 (7th Cir. 1999). In that case, this court cited Betts and United Air Lines v. McMann, 434 U.S. 192 (1977), for the proposition that a plan is not a subterfuge to evade the purposes of the ADEA “so long as the age criterion pre-dates the ADEA ....” 193 F.3d at 901. And as we explain in our opening brief, the Eleventh Circuit has *6 squarely held that Betts and other cases construing section 623(f)(2) prior to the OWBPA “should properly be consulted to give meaning to the term ‘subterfuge’ as it appears” in section 623(j)(2). See Knight v. Georgia, 992 F.2d 1541, 1545-46 (11th Cir. 1993). Indeed, Knight flatly rejects the contention made here that the OWBPA rendered Betts irrelevant or invalid. Among other things, the court inferred from Congress’s removal of the term subterfuge from section 623(f)(2), but not from 623(j)(2), that the OWBPA “was meant to modify only [section 623(f)]. Had Congress also intended to redefine the term subterfuge as it appears in [section 623(j)], we believe that it would have done so expressly.” Id. at 1546. Numerous courts considering a subterfuge provision in the Americans with Disabilities Act (“ADA”) have, likewise, followed Betts. See, e.g., EEOC v. Aramark Corp., 208 F.3d 266, 269-70 (D.C. Cir. 2000); Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 102-06 (2d Cir. 1999); Ford v. Schering-Plough Corp., 145 F.3d 601, 611 (3d Cir. 1998), cert. denied, 525 U.S. 1093 (1999); Krauel v. Iowa Methodist Medical Center, 95 F.3d 674, 678-79 (8th Cir. 1996).
In fact, Betts is particularly important because when the current version of section 623(j)(2) was enacted in 1996, Congress chose to utilize the same statutory phrase that the Supreme Court had construed in Betts, rather than using different *7 or modified language similar to that it had employed in the OWBPA. See Age Discrimination in Employment .Amendments of 1996, Pub. L. No. 104-208, § 119, 110 Stat. 3009, 3009-24 to 3009-25. Instead of using an approach to this ADEA exemption similar to that found in the OWBPA, Congress employed the exact subterfuge language that had been construed in Betts. Thus, the presence in section 623(j) (2) of that subterfuge language cannot be fairly characterized as a repudiation of Betts.2 Indeed, this is precisely the reasoning of the ADA cases that have adopted Betts’ interpretation of subterfuge. See, e.g., Leonard F., 199 F.3d at 104-05 (nclusion of subterfuge language in the ADA in 1990 signaled congressional approval of Betts for purposes of pertinent ADA provision); Aramark, 209 F.3d at 270-73 (same). In short, Betts is soundly followed to interpret statutory language identical to the language analyzed in that case.3
*8 The plaintiffs also observe that Betts held that benefit plans that discriminate in fringe benefits fall within the exemption for pension, insurance, and retirement benefits, but benefit plans that discriminate in a non-fringe aspect of employment, such as hiring, firing, or wages, could be actionable. See Drnek Br. at 26-27; see also 492 U.S. at 177-78, 180. From this, the plaintiffs conclude that Betts is “inapposite” because “forced termination” is a “‘non-fringe’ aspect of the employment relationship.” Drnek Br. at 27. This is nonsense. The provision construed in Betts, section 623(f)(2), was an exemption applicable only to retirement, pension, or insurance plans, and so the Court naturally observed that it was limited to these fringe benefits. Section 623(j)(2) involves mandatory retirement, and so it naturally reaches what *9 the plaintiffs call “forced termination” or it would be meaningless. Indeed, under Betts, ADEA exemptions must not be construed in a manner that wipes them out completely, as we explain at length in our opening brief. See Opening Br. at 29-31, 42-45. If a mandatory retirement policy could not be utilized to terminate employees, it would not be a mandatory retirement policy at all. The plaintiffs’ apparent view that section 623(j)(2) cannot be used to terminate retirees’ employment is both nonsensical and eviscerates the exemption.
Finally, the plaintiffs and AARP assert that section 623(j)(2)’s plain language does not require allegations that a plan evades the ADEA’s “purposes” rather than its substantive prohibitions, and criticize us for reading a “substantive prohibition” requirement into the statute. See Drnek Br. at 27-28; AARP Br. at 5-8. As we explain in our opening brief, the Supreme Court unambiguously rejected this exact proposition in Betts, a fact which the plaintiffs and AARP apparently wish to ignore. There, the Court observed that one “purpose” of the ADEA was to “eliminat[e] ‘arbitrary age discrimination in employment.”’ 492 U.S. at 176. The presence of exemptions, the Court explained, signaled Congress’s recognition that “not all age discrimination in employment is ‘arbitraryy.”’ Id. In order to determine what age discrimination Congress believed was *10 arbitrary, the Court concluded that it “must look for guidance to the substantive prohibitions of the Act itself, for these provide the best evidence of the nature of the evils Congress sought to eradicate.” Id. Accordingly, the court held that a plan “cannot be a subterfuge to evade the ADEA’s purpose of banning arbitrary age discrimination unless it discriminates in a manner forbidden by the substantive provisions of the Act.” Id. Thus, the substantive prohibitions give meaning and effect to the Act’s purposes.
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Indeed, Betts was not the first time the Supreme Court had construed the concept of a “subterfuge” to evade the ADEA; Betts relied on the Court’s prior decision in McMann, “which rejected the contention that the purposes of the Act can be distinguished from the Act itself.” 492 U.S. at 176. In McMann, the Court characterized the very distinction the plaintiffs and AARP make here between the ADEA’s purposes and its substantive prohibitions as “untenable.” 434 U.S. at 198. That is because “the Act is the vehicle by which its purposes are expressed and carried out ....” Id. This reasoning makes common sense. If the test for subterfuge focused on the general “purpose” of eliminating “arbitrary age discrimination in employment,” no local government could ever safely enact mandatory retirement laws. Juries would always feel free to find that by simply having a mandatory *11 retirement ordinance, a local government had evaded the ADEA’s “purposes.”4
C. Evidence Of Allegedly Illicit Motives For Establishing A Retirement Plan Is Irrelevant Where A Plan Does Not Evade A Statutory Prohibition.
In Bell v. Purdue University, 975 F.2d 422 (7th Cir. 1992), this court, relying on Betts, made clear that an employer does not engage in subterfuge even if it relies on a preference for younger workers when it avails itself of one of the ADEA’s exemptions. The court emphasized that the pertinent inquiry is whether the plan evades “one of the substantive provisions of the *12 ADEA,” and that defendants “cannot be liable for their motives if their conduct has not evaded the ADEA’s prohibitions.” Id. at 429. Thus, as we explain in our opening brief, Bell, like Betts, establishes that a claim of subterfuge must allege a violation of a substantive provision of the ADEA, and adds that absent such violation, evidence that an employer favored younger workers is not probative of subterfuge.
The plaintiffs and AARP offer no response to our submission that Bell guides an analysis of this case other than to say that like Betts, Bell was rendered invalid by the OWBPA. See Drnek Br. at 25-26, 38 n.31; AARP Br. at 12. As we explain above, that view is indefensible. Thus, Betts and Bell provide the framework for analyzing the plaintiffs complaints. And under that framework, the plaintiffs have failed to state a claim for relief.
II. THIS LAWSUIT RESTS ON NO PROPER THEORY OF LIABILITY UNDER THE ADEA.
With Betts and Bell as a guide, it is clear that the plaintiffs have utterly failed to state a claim for relief under the ADEA. Contrary to the plaintiffs’ mischaracterization of our submission, we neither advocate a “heightened pleading standard” nor request that they prove their case in response to our motion to dismiss. See Drnek Br. at 24-25. Rather, we submit that even *13 the liberal federal notice pleading standards cannot save their complaints, because the claims they seek to prove are not claims for which relief could be granted. Even more important, in their submissions below and in this court, the plaintiffs have made plain that they intend to pursue a claim that turns on how section 623(j) should be construed. For that reason, the district court properly concluded that this case turns on a controlling question of law.
A complaint must contain a “short and plain statement showing the plaintiff is entitled to relief ....” Thompson v. Illinois Department of Professional Regulation, 300 F.3d 750, 753 (7th Cir. 2002). The purpose of such a statement, as the plaintiffs agree, is to provide a defendant with “notice of the claims and the grounds they rest upon.” Id. See Drnek Br. at 24 (quoting Swierkiewicz v. Sorema, 534 U.S. 506, 512 (2002)). Nevertheless, the details a plaintiff chooses to allege in his complaint, or later in its defense, can demonstrate that the plaintiff is not entitled to relief. See, e.g., Thompson, 300 F.3d at 753-54; Sanjuan v. American Board of Psychiatry and Neurology, 40 F.3d 247 (7th Cir. 1994), cert. denied, 516 U.S. 1159 (1996).
Here, the problem is not that the plaintiffs have failed to provide the City with notice of their claim -- by now, we know *14 exactly what their claim is. The problem is that the plaintiffs have failed to provide the City with notice of a claim for which relief could be granted. The district court was itself concerned that the complaint failed to advance a claim for which relief can be granted, and ordered the plaintiffs to provide additional detail as to what type of claim they intended to pursue. See Drnek R. 41. By their own account, both in their briefs in the district court and in this court, the plaintiffs hope to prove only two things: that the mandatory retirement plan is an illegal subterfuge because its enactment was not motivated by public safety concerns, and because it was used to accomplish a “political objective” of creating large-scale employment opportunities for younger workers, minorities, and women. Drnek Br. at 23. Certainly the plaintiffs deny that they intend to
6

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pursue any subterfuge claim of the type we acknowledge would be proper -- a claim that a mandatory retirement law was enacted in retaliation for an assertion of rights under the ADEA, or that the law at issue is not really a retirement law at all but merely moves older workers into lower-paying jobs. See Opening Br. at 52-53. The claim that the plaintiffs actually press, however, would not, if proved, entitle the plaintiffs to relief, and thus is not a claim for which relief could be granted. Moreover, because that claim turns on the proper construction of *15 section 623(j)(2), it was properly certified for interlocutory appeal.
A. Allegations That A Mandatory Retirement Plan For Police And Fire Personnel Was Not Motivated By Public Safety Considerations Do Not State A Claim Of Subterfuge.
The plaintiffs assert that because public safety motivated Congress to enact section 623(j), public safety is the “only legitimate reason[]” for mandatorily retiring a public safety employee, and the subterfuge language precludes “other, illegal purposes.” Drnek Br. at 19-20 (emphasis in original). At bottom, this amounts to a request that the court read a public safety justification into section 623(j).
As we observe above and in our opening brief, Betts rejected that approach to subterfuge, a point the plaintiffs wholly ignore. See Opening Br. at 35-42. In Betts, the plaintiffs asserted that employers had to justify their use of the benefit plan exemption on grounds of cost, and that this costjustification requirement could be gleaned from the statute’s subterfuge provision. See id. at 169. The Court rejected this argument, holding that no such requirement appeared in the exemption’s language and therefore could not be derived from its subterfuge provision. The Court reached this conclusion notwithstanding interpretive regulations to the contrary, because such regulations were inconsistent with the statutes plain *16 language. See id. at 170, 172. Similarly, in Leonard F., the Second Circuit held that the ADA’s subterfuge clause should not be construed to require underwriters to base decisions on “sound actuarial principles,” since Betts rejected a construction of the term “subterfuge” that would require an employer to offer any particular justification for a challenged policy. See 199 F.3d at 104-05. See also, e.g., Aramark, 298 F.3d at 269-72; Krauel, 95 F.3d at 678-79. The claim that section 623(j) requires a public safety justification is no different. The exemption’s plain language contains no such requirement, as the plaintiffs themselves concede. See Drnek Br. at 23. That should be the end of the matter.
Nevertheless, the plaintiffs rely on section 623(j)(2)’s requirement that employers administer fitness tests, once those tests are developed by the Secretary of Health and Human Services (“SHHS”), to support their claim that employers engage in subterfuge unless they are motivated purely by public safety. See Drnek Br. at 20-23. In particular, they claim that the future testing requirement establishes Congress’s intent that public safety employees continue to work if they are fit to do SO. Id. at 20-21. The statute demonstrates exactly the opposite intent. Employers are not required to administer tests until SHHS develops non-discriminatory tests. See Age Discrimination *17 in Employment Amendments of 1996, Pub. L. No. 104-208, sec. 119, §§ 2(a), (c), (d), 110 Stat. 3009, 3009-24 to 3009-25. Thus, absent SHHS tests, employers may mandatorily retire police and fire personnel regardless whether they are fit to continue working. In other words, as we explain in our opening brief, in the absence of SHHS tests, Congress presumed that age could be a proxy for fitness and therefore did not require state or local governments to show that their mandatory retirement policies have a public safety justification. See Opening Br. at 40-42.5 To the extent that the plaintiffs contend that a mandatory retirement plan will not be a subterfuge if City legislators and officials honestly believe that mandatory retirement is justified for public safety reasons, even if they are mistaken or have no support for that belief, see Drnek Br. at 20-23, 31-33, that is an absurd construction of the exemption. And to the extent that the plaintiffs contend that the City must always prove that mandatory retirement is justified by public safety, see id., they *18 effectively place the burden of developing fitness tests on local governments in direct contravention of the statute, which places that burden on SHHS.
As we explain in our opening brief, we do not doubt that portions of section 623(j)(2)’s legislative history suggest that its supporters believed that it was a public safety measure. See Opening Br. at 40-41. But this does not mean mandatory retirement under section 623(j)(2) is a subterfuge unless it too was motivated by public safety concerns, or that Congress intended that justification. Moreover, Betts makes clear that an exemption’s plain language controls; after all, there was apparently some basis from the legislative history of section 623(f)(2) to believe that Congress viewed that exemption as cost-based, see 492 U.S. at 189-91 (Marshall, J., dissenting), AARP Br. at 10-11, but the Court still concluded that the statute’s plain language precluded any cost-justification requirement. And finally, when section 623(j)(2) was enacted in 1996, Congress was aware of Betts’ admonition that additional burdens cannot be gleaned from a subterfuge provision. Yet,
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Congress did not write a public safety motivation into section 623(j)(2). This court should therefore follow Betts and conclude that section 623(j)(2) *19 does not require a public safety justification.6
With the statute’s plain language against them, the plaintiffs and AARP seek refuge in the general presumption that exceptions to the ADEA, a remedial statute, should be narrowly construed. See Drnek Br. at 36-37; AARP Br. at 15-17. That presumption, however, is not a free pass to engraft conditions or limitations onto a statute’s plain language: “[a]s a general matter, the ADEA may benefit from the presumptions associated with a ‘remediall’ statute.... This characterization, however, does not invest the Act with a sort of talismanic quality so that all other canons of statutory construction will be disregarded.” Graczyk v. United Steel Workers of America, 763 F.2d 256, 262 (7th Cir.), cert. denied, 474 U.S. 970 (1985) (citations omitted). Section 623(j)(2)’s plain language does not require a public safety motivation. The basic tenet of statutory *20 construction requiring adherence to a statute’s plain language should not take a back seat to a generalized presumption of narrow construction.
B. A Mandatory Retirement Plan That Creates Employment Opportunities For Younger Workers At The Expense Of Older Workers Is Not A Subterfuge To Evade The Purposes Of The ADEA.
The plaintiffs have defended their complaint on only one ground beyond their claim that the City was not motivated by public safety: that the City used mandatory retirement to further a political objective of creating hiring opportunities for younger workers, minorities, and women. See, e.g., Minch R. 1-1 at 8-9; Drnek R. 6 at 5; Drnek R. 41. See also Drnek Br. at 23.7 This does not describe a claim for which relief could be granted. This claim does, however, turn on the proper construction of section 623(j)(2), and hence the district court properly certified this case for interlocutory appeal.
As we explain in our opening brief, the plaintiffs’ claim cannot possibly describe subterfuge. Betts instructs that a plaintiff claiming subterfuge must identify a statutory *21 requirement that a retirement plan “evades,” and that mere reference to the statute’s general purpose of eliminating age discrimination in employment will not do. Betts further instructs that a retirement plan will not be a subterfuge if the only way in which it can be said to “evade” a statutory requirement is in the way that every such plan would.
The plaintiffs allegation of subterfuge boils down to one that the City desired to replace older workers. This claim may invoke the ADEA’s general “purpose” of eliminating age discrimination, but that is not enough. The claim may also invoke the ADEA’s substantive prohibition on age-based discharge, but so would any other mandatory retirement ordinance, as the plaintiffs observe. See Drnek Br. at 39-40. That is exactly why the City’s use of mandatory retirement to create job opportunities, if true, cannot be the basis of liability. It does not signal anything unusual about the plan. The very purpose of the section 623(j)(2) exemption is to permit public employers to replace older public safety workers. A plan that does just that does not “evade” any “purpose” of the A.DEA.
The most the plaintiffs can say is that their claim invokes the ADEA’s substantive prohibitions against discrimination in “compensation, terms, conditions, or privileges of employment, because of age,” since they allege “loss ... of employment, *22 wages, benefits, and compensation.” Drnek Br. at 28. This approach ignores Betts and common sense. The loss of salary and other employment benefits will result from any mandatory retirement plan. The assertion that Chicago’s mandatory retirement plan evades a substantive ADEA prohibition because it permits the discharge of workers based on age is nonsense; the purpose of addition section 623(j) is to ensure that the ADEA did not bar this type of so-called “discrimination.” All of the allegations in the complaints describe injuries that would result from any mandatory retirement program. See Drnek R. 6 ¶¶ 19, 26-28; Minch R. 1-1 ¶¶ 3, 5-7, 26-27, 36. Thus, those injuries cannot be enough to show that this retirement law falls outside section 623(j)(2)’s exemption.
The plaintiffs complain that we have unfairly limited their claim to one alleging replacement of older workers with younger workers, and that there is no requirement that plaintiffs allege every fact supporting their claims. See Drnek Br. at 28. Of course, a complaint should not be dismissed if the plaintiff could prove any set of facts that would entitle him to relief, see Conley v. Gibson, 355 U.S. 41, 45-46 (1957), but that “set of facts has to be the plaintiff’s, not a figment of someone else’s imagination.” Kyle v. Morton High School, 144 F.3d 448, 455 (7th Cir. 1998). Here, when their complaint was challenged by our *23 motion to dismiss, the plaintiffs were unable to articulate any claim that they intended to pursue which had any merit under a sound construction of section 623(j)(2). Of course, one entirely proper function of a motion to dismiss a complaint is
8

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307760...
to determine if the plaintiff intends to pursue any potentially meritorious claim. Indeed, the Supreme Court has observed that the purpose of a motion to dismiss is to alert the plaintiff to
the legal theory underlying the defendant’s challenge, and enable him meaningfully to respond by opposing the motion to dismiss on legal grounds or by clarifying his factual allegations so as to conform with the requirements of a valid legal cause of action. This adversarial process also crystallizes the pertinent issues and facilitates appellate review of a trial court dismissal by creating a more complete record of the case.
Neitzke v. Williams, 490 U.S. 319, 329-30 (1989). Accor, e.g., Health Cost Controls v. Skinner, 44 F.3d 535, 538 (7th Cir. 1995). Nevertheless, the only claims the plaintiffs have articulated lack any legal merit. The plaintiffs have vigorously defended their complaints, and have, over and over, described what they hope to prove, but they have never articulated an intention to pursue any type of claim that could entitle them to relief. For that reason, the district court properly concluded that the controlling question in this case is one of law -- whether section 623(j)(2) permits the plaintiffs to press the claim that they actually advance. And because that claim is not *24 sound under a proper construction of section 623(j), this litigation should be put to an end.
C. The Private Motivations Of Individual Legislators And City Officials For Supporting The Mandatory Retirement Ordinance Cannot Invalidate An Otherwise Valid Ordinance.
Unable to identify a statutory violation, the plaintiffs announce that they seek to hold the City liable for its thoughts rather than its actions: “It is the motive of the employer that makes the conduct lawful or unlawful, not simply its result.” Drnek Br. at 40. This court squarely rejected such an approach in Bell, when it held that defendants “cannot be liable for their motives if their conduct has not evaded the A.DEA’s prohibitions.” 975 F.2d at 429. Thus, any inquiry into legislative motive must be tied to a perceived violation of some statutory requirement.
Ignoring Bell, the plaintiffs assert that evidence of “discriminatory intent” of individual legislators and municipal officials can show subterfuge, and that they would not need to show that a majority of City Council members shared a ‘discriminatory intent. Drnek Br. at 41-42.8 They also assert *25 that courts sometimes do allow inquiry into legislative motive. Id. at 42-43. Finally, they contend that “subterfuge” demands a fact-based inquiry. Id. at 40-41. These assertions are wholly beside the point. We have not suggested that inquiry into legislative motive is always forbidden, even in a case alleging subterfuge. If the plaintiffs had articulated some intent to evade a statutory requirement -- as Betts and Bell demand -- inquiry into legislative motive to collect proof of that claim might be warranted. Here, all the plaintiffs hope to prove is that the City wanted to replace older workers, knew that mandatory retirement would accomplish that, and desired that result for political reasons rather than public safety. That is not a claim for which relief can be granted, as we explain above.
As we explain in our opening brief, inquiry into legislative motive is difficult, intrusive, and of limited use, and therefore should be reserved for extraordinary cases. Statutes should not be readily construed to require consideration of legislative *26 motive given the great difficulties that such an inquiry poses. In this case, for example, on the plaintiffs’ view, apparently Chicago’s ordinance could be invalidated under the ADEA if the legislators who voted for it had something other than public safety in mind, but an identical ordinance could then be enacted, and if the legislators could purify their thoughts to the satisfaction of the district court, it should be upheld. Surely the ADEA should not be construed to permit such an absurd result.
D. Section 623(j)(2)’s “Subterfuge” Provision Is Not Superfluous.
In our opening brief, we discuss why the Betts approach to subterfuge claims would not render section 623(j)(2)’s subterfuge provision superfluous. See Opening Br. at 52-54. To that end, we offer two examples of actionable subterfuge in mandatory
9

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307760...
retirement: a plan enacted to evade the ADEA’s prohibition against retaliation; and a plan that gives retired personnel preference for a new, lower-paying job, thus potentially evading the ADEA’s prohibition against discrimination in compensation. See id. at 52-53.
The plaintiffs offer virtually no response to this submission except to weakly characterize their claim, like the one in our second example, as alleging evasion of the ADEA’s prohibition against discrimination in compensation, because *27 mandatory retirement reduces compensation. See Drnek Br. at 35. Unlike the situation in our example, however, the plaintiffs have never claimed, and still do not claim, that the City discriminates against mandatorily retired workers in compensation, or uses mandatory retirement for that purpose. As we explain above, this case alleges discrimination in the mandatory retirement itself, a form of discharge. Reduced compensation is merely a consequence of that alleged discrimination.

E. The Controlling Question Should Be Answered In The Negative And Judgment Should Be Entered For The City On The ADEA Claims.
The district court determined that resolution of the plaintiffs’ ADEA claims turned on a controlling question of law: “whether a plaintiff can demonstrate subterfuge under [section] 623(j)(2) [of the ADEA] with any kind of evidence if there is no violation of [section] 623(j)(1).” App. A54 (emphasis in original). As we explain in our opening brief, this question should be answered in the negative where the plaintiff cannot identify a substantive prohibition of the ADEA that the mandatory retirement plan violates (other than its prohibition against agebased discharge and its general purpose of eliminating age discrimination). See Opening Br. at 54-56.
The plaintiffs take an artificially narrow view of the *28 district court’s question and observe that section 623(j) requires a mandatory retirement plan to satisfy both the timing requirements set out in section 623(j)(1), and the subterfuge provision of section 623(j)(2). See Drnek Br. at 33-34, 37-39. That is true; after all, sections (1) and (2) of the exemption are conjunctive, not disjunctive, requirements. See 29 U.S.C. 623(j) (2000). We submit, however, that when, as here, section 623(j)(1)’s timing requirements are concededly satisfied, the plaintiff must show (or here, allege) subterfuge under 623(j)(2) to invalidate a mandatory retirement plan. And where the plaintiff cannot identify a statutory violation within the meaning of Betts, then it cannot demonstrate subterfuge with any kind of evidence. If the plaintiffs could identify a statutory violation, the question might be answered affirmatively. They have not.
In the end, as we also explain in our opening brief, the precise formulation of the controlling question lacks practical significance; the denial of the City’s motion to dismiss turns on a question of law involving construction of the phrase “subterfuge to evade the purposes” of the ADEA, and this appeal presents the question whether as properly construed, the plaintiffs have alleged a claim of subterfuge. Because the plaintiffs have no intention of pursuing a claim for which relief *29 can be granted, under a proper construction of section 623(j)(2), the district court should be directed to dismiss their ADEA claim.

*30 CONCLUSION
For the foregoing reasons, the judgment of the district court denying the City’s motion to dismiss the plaintiffs’ ADEA claims should be reversed, and judgment for the City should be entered on the ADEA claims.

Footnotes

1

This court acknowledged as much in Bell, when it applied Betts to a case involving the pre-OWBPA version of section 623(f)(2).

See 975 F.2d at 423-24, 429. Under the plaintiffs’ flawed rationale, however, Congress’ purported rejection of Betts’ interpretation

of the pre-OWBPA version of section 623(f)(2) would have precluded Bell’s reliance on Betts. Here, as in Bell, we rely on Betts

for its construction of the subterfuge provision as it appeared in the prior version of section 623(f)(2), because that provision is

identical to the one in 623(j)(2). In contrast, Solon v. Garv CommunitY School Corp., 180 F.3d 844 (7th Cir. 1999), which the

plaintiffs and AARP cite on this point, see Drnek Br. at 26 & n.21; AARP Br. at 12, is inapposite. The court stated that Congress

had “overruled” Betts by changing the statutory language discussed in Betts, see 180 F.3d at 849 n.2, but did not discuss whether

10

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Betts’ analysis was appropriately consulted with regard to other statutes containing the same language analyzed there; no subterfuge provision was even at issue in Solon. The same is true for Ouinones v. City of Evanston, 58 F.3d 275 (7th Cir. 1995), which the AARP cites. See AARP Br. at 12.

2

Thus, the plaintiffs and the AARP are quite wrong to claim that at mast this oase involves mere Congress’s failure to amend

section 623(j) in response to Betts. See Drnek Br. 26 n.21; AARP Br. at 13. The version of section 623(j) that was in effect when

Betts was decided expired by its terms in 1993. See Age Discrimination in Empicyment Amendments of 1986, Pub. L. No. 99-592,

§ 3, 100 Stat. 3342, 3343 (1986) . The current version of section 623(j) (2), as we explain above, was not enacted until 1996, and

then Congress chose to use the same phrase that the Court had construed in Betts.

3

In the same vein, the plaintiffs and AARP assert that it is the employer’s burden to show that a mandatory retirement plan was not

a subterfuge. Drnek Br. at 29-30; AARP Br. at 18-19. That exact contention was rejected in Betts with regard to section 623(f)(2).

See 492 U.S. at 181-82. Relying on its longstanding interpretation of Title VII, the Court made clear that the subterfuge provision

“itself delineates which employment practices are illegal and thereby prohibited and which are not.” Id. at 181 (internalt quotation

marks and citation omitted). Thus, an employee challenging a plan as a “subterfuge to evade the purposes” of the ADEA bears the

burden of proof on that issue. See id. Accord, e.g., Aramark, 208 F.3d at 273 (after Betts, it is employee’s burden to show

subterfuge under ADA). Moreover, the assertion that the OWBPA reallocated the burden of proof should be rejected. The OWBPA

did not amend section 623(j)(2), and when Congress reenacted section 623(j)(2) in 1996, it did not allocate the burden of proof to

employers. Finally, it bears noting that the plaintiffs took the contrary position on this point in the district court, admitting that

Betts makes it their burden to prove subterfuge. See Minch R. 16 at 11 n.7, 1819; Minch R. 59 at 10-12.

4

AARP observes that early retirement incentive plans are legal if they are “‘consistent with the relevant purpose or purposes of [the

ADEA],”’ and cites Solon v. Garv Community School Corp., 180 F.3d 844 (7th Cir. 1999); Auerbach v. Board of Education, 136

F.3d 104 (2d Cir. 1998); and Karlen v. City Colleges of Chicaqo, 837 F.2d 314 (7th Cir.), cert. denied, 486 U.S. 1044 (1988), for

the proposition that courts have referred to the ADEA’s purposes rather than its substantive prohibitions to evaluate the legality of

early retirement incentive plans. AARP Br. at 6-7 (quoting 29 U.S.C. 623(f)(2)(B)(ii) (2000)). To begin with, none of these cases

considered the question squarely confronted in Betts - whether the ADEA’s purposes could be distinguished from its substantive

prohibitions. Solon, moreover, did not even address an ADEA exemption, let alone a subterfuge provision, and Karlen was decided

before Betts. In any event, none of these cases undermines our submission. Early retirement incentive plans, as AARP

acknowledges, violate the ADEA if the retirement was not truly voluntary or if the plan reduced benefits with age in order to

induce earlier retirement. See, e.g., Solon, 180 F.3d at 850-53; Auerbach, 136 F.3d at 113-14; Karlen, 837 F.2d at 317-20. In such

circumstances, the early retirement incentive plan violates the ADEAs “purpose” of eliminating arbitrary age discrimination in the

workplace because it violates the ADEA’s “prohibition” on age-based discharge or involuntary retirement (outside the police and

fire context). See 29 U.S.C. 623(a)(1) (2000).

5

The legislative history we cite in support of this proposition in our opening brief, derived from debates about earlier though not

significantly different versions of section 623(j), see Drnek Br. at 31 n. 25, is perfectly Konsistent with the enacted version of that

statute. In those debates, certain advocates viewed mandatory retirement as necessary until effective non-discriminatory testing

alternatives could be developed. See Opening Br. at 41-42. Section 623(j), as we explain above, allows mandatory retirement

without fitness testing until SHHS develops non-discriminatory tests.

6

Quinones v. City of Evanston, 829 F. Supp. 237 (N.D. Ill. 1993), aff’d, 58 F.3d 275 (7th Cir. 1995), which the plaintiffs cite, does

not help them. There, Evanston was trying to use section 623(j) to justify something other than mandatory retirement: exclusion of

a firefighter from its pension fund. See id. at 242. In that context, the court observed that section 623(j) was passed “to ensure

public safety,” and that public safety would not be “enhanced in any way simply by reducing the pension coverage of a firefighter,

who in any case would perform the same duties.” Id. See 58 F.3d at 278. In other words, public safety would be served by

mandatory retirement, but not by discrimination against firefighters in pension benefits. Nothing in Quinones suggests that

mandatory retirement must be justified on public safety grounds.

7

As an aside, the alleged “true reasons” for the mandatory retirement ordinance all relate to public safety, as we explain in our

opening brief. The plaintiffs insinuate that the City’s exclusion of paramedics from the ordinance undermines its stated public

safety purpose, see Drnek Br. at 18 n.12, but paramedics do not appear to fall within the scope of section 623(j). See 29 U.S.C.

623(j); 630(j), (k) (2000).

8

Plaintiffs cite Hunt v. City of Markham, 219 F.3d 649 (7th Cir. 2000), for this proposition. Hunt, however, did not involve an

employment decision made in the context of an ADEA exemption and did not construe the term “subterfuge.” Where the claim is

that a City ordinance was enacted as a “subterfuge to evade the purposes” of the ADEA, it makes little sense to say that the

sentiments of a few legislators would be sufficient to prove at trial the sentiments of the City Council as a whole in passing the

ordinance. That is the point of Matthews v. Columbia County, 294 F.3d 1294 (11th Cir. 2002), petition for cert. filed, 71 U.S.L.W.

3519 (U.S. Dec. 2, 2002) (No. 02-1114), which we cite in our opening brief. There, the court made clear that in order to show that

a legislature acted with improper motives, a plaintiff must show that a majority of legislators supporting the ordinance ratified

11

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307760... those motives when they voted for the ordinance. See id. at 1296-98. The fact that Matthews concerned municipal liability under section 1983 does not undermine the applicability of its reasoning.
End of Document
12

 
 192 F.Supp.2d 835 (2002)
Donald DRNEK, Plaintiff, v.
CITY OF CHICAGO, an Illinois Municipal Corporation, Defendant. James D. Minch, Richard A. Graf, and Richard Cosentino, individually, and on behalf of a
class of all individuals who are similarly situated, Plaintiffs, v.
City Of Chicago, an Illinois Municipal Corporation, Defendant.
Nos. 01 C 0840, 01 C 2586.
United States District Court, N.D. Illinois, Eastern Division.
March 26, 2002.
836 *836 Clinton A. Krislov, Michael R. Karnuth, Krislov & Associates, Ltd., Joan Matlack, Putterman & Howard, Ronald L. Futterman, Futterman & Howard, Chtd., Chicago, IL, for plaintiffs.
Patricia M. Carroll-Smit, Barbara Susan Smith, City of Chicago, Law Department, Corporation Counsel, Chicago, IL, Nancy L. Van Allen, Mara Stacy Georges, City of Chicago, Law Department, Chicago, IL, for defendant.
MEMORANDUM OPINION AND ORDER
BUCKLO, District Judge.
The plaintiffs in these cases are Chicago Police and Fire Department officers who were involuntarily retired under the City of Chicago's mandatory retirement ordinance, Chicago Municipal Code § 2-152-140. Donald Drnek sued the City of Chicago ("City") for violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and for due process violations under federal and Illinois law. James Minch, Richard Graf and Richard Cosentino filed a substantially identical claim on behalf of themselves and others similarly situated.[1] The City 837 moves *837 to dismiss both complaints. I deny the motions as to the ADEA claims in Count I, and grant them in part and deny them in part as to the due process claims in Counts II and III.
I.
The plaintiffs, all former Chicago police officers and firefighters, were terminated on December 31, 2000, pursuant to the City's mandatory retirement ordinance (the "Ordinance"), which establishes sixty-three years as the maximum age for sworn members of the Police Department and for members of the uniformed service of the Fire Department. Chicago Municipal Code ("CMC") § 2-152-140.[2] The City did not give the plaintiffs an opportunity to take physical fitness tests to demonstrate that they could still meet the fitness requirements of the job.
Ordinarily, under Fed.R.Civ.P. 23, class certification should be addressed before any consideration of the merits, but the ADEA class action is not subject to Rule 23, see 29 U.S.C. § 626(b) (incorporating opt-in procedures under 29 U.S.C. § 216); Tice v. American Airlines, Inc., 162 F.3d 966, 973 (7th Cir.1998) (holding that ADEA class actions are "opt-in" actions under § 216(b), not "opt-out" actions subject to Rule 23), so I may address the merits of these claims without resolving class certification. See Vanskike v. Peters, 974 F.2d 806, 812-13 (7th Cir.1992) (addressing merits of § 216(b) action before resolving class issues); see also McCann v. City of Chicago, No. 89 C 2879, 1990 WL 70415, at *3 (N.D.Ill. May 3, 1990) (Grady, J.). On the due process claims, the plaintiffs have not moved for certification under Rule 23, and the City moved to dismiss on the merits without addressing the propriety of certification, so it has waived the Rule 23(c) protection of certification before a decision on the merits.

See Williams v. Lane, 129 F.R.D. 636, 647 (N.D.Ill.1990) (Shadur, J.) (Noting that certification prior to the merits protects against "one-way intervention" by class members, and holding that a defendant implicitly waived objection on this basis by seeking a favorable decision on the merits). To the extent that the City objects to the plaintiffs' standing to raise arguments on behalf of other class members, the class issues are not ripe. I therefore address only the claims of the individual plaintiffs.
On a motion to dismiss, I take all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiffs. Szumny v. American Gen. Fin., Inc., 246 F.3d 1065, 1067 (7th Cir.2001). I will not dismiss a complaint for failure to state a claim unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claims which would entitle them to relief. Id.
II. Age Discrimination
The ADEA makes unlawful the discharge of an individual because of his age, 29 U.S.C. § 623(a)(1), but it contains an exemption for firefighters and law enforcement officers, id. at § 623(j). The exemption applies if certain age requirements are met and if the employment action is taken pursuant to a bona fide retirement plan that is not a subterfuge to evade the purposes of the ADEA. To avoid dismissal, therefore, the plaintiffs need only demonstrate that they are entitled to proceed on one of the two theories: the propriety of the age requirements or subterfuge.
838 *838 The ADEA was enacted in 1967, and at that time it did not apply to employees of state or local government. Kopec v. City of Elmhurst, 193 F.3d 894, 896 (7th Cir. 1999). On March 2, 1983, the Supreme Court held that the ADEA could be applied to state and local government, see EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), leaving many state and local laws establishing maximum hiring and retirement ages for firefighters and police officers open to challenge. See Kopec, 193 F.3d at 897. To preserve mandatory retirement ordinances, states and municipalities had to demonstrate that they fit into the narrow exception for bona fide occupational qualifications ("BFOQ"). Id. In 1986, however, Congress amended § 623 to allow states to enforce any age restrictions that were in place as of March 3, 1983 (the day after the Supreme Court decided EEOC v. Wyoming). Id. The amendment had a sunset provision, providing for expiration on December 31, 1993. Id. The amendment expired, and Congress took no further action until 1996, when it retroactively reinstated the 1986 amendment with some modifications.
The 1996 amendments[3] say that a mandatory retirement provision does not violate the ADEA if "the employer has complied with section 3(d)(2) of the Age Discrimination in Employment Amendments of 1996 if the individual was discharged after the date described in such section." 29 U.S.C. § 623(j)(1). In addition, the employee must have reached either (A) the retirement age in effect on March 3, 1983, or, (B) if the law was enacted after September 30, 1996, the higher of the age provided in the law and age fifty-five. Id. Finally, the employment action must be taken "pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of [the ADEA]." Id. at (j)(2).
"Section 3(d)(2)" is not a part of the United States Code, but according to the Historical and Statutory Notes to § 623, section 3(d)(2) "probably means" Pub.L. 104-208, Title I, § 101(a), which sets forth a "Study and Guidelines for Performance Test" to be conducted by the Secretary of Health and Human Services ("HHS"). Under Pub.L. 104-208, HHS was to develop and issue, by September 30, 2000, "advisory guidelines for the administration and use of physical and mental fitness tests to measure the ability and competence of law enforcement officers and 839 firefighters to perform the requirements of the[ir] jobs." Id. at (c). After issuing the *839 advisory guidelines, HHS was directed to issue regulations identifying appropriate nondiscriminatory job performance tests, id. at (d)(1), and "[e]ffective on the date of the regulations described in [subparagraph (d)(1)], any employer seeking such exemption with respect to a firefighter or law enforcement officer who has attained such age shall provide to each firefighter or law enforcement officer who has attained such age an annual opportunity to demonstrate physical and mental fitness by passing a test described in [subparagraph (d)(1)], in order to continue employment." Id. at (d)(2). HHS never issued the advisory guidelines or regulations called for by § 3(c) and (d).

The City had a mandatory retirement ordinance as early as 1939, which provided for retirement of "policemen and firemen in the classified civil service." Pl's Ex. B. This version was in effect until 1983, when the Supreme Court decided that the ADEA applied to State and local governments. EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983). In response to the Supreme Court's decision, the City amended its mandatory retirement ordinance, raising the retirement age to 70 and applying to the "career service," which had replaced the classified civil service in 1976. Pl's Ex. C. This version was in effect until 1988, when the City again amended the ordinance in response to the first "public safety exemption" passed by Congress in 1986. The 1988 version provided that "[e]very sworn member of the police department and every member of the uniformed service of the fire department who has attained the age of 63 years prior to December 31, 1993, shall forthwith and immediately be retired from service." Pl's Ex. D. The ordinance thus mirrored the sunset provision of the 1986 public safety exemption. After December 31, 1993, there was no ordinance that provided for mandatory retirement of police and firefighters until, on May 17, 2000, the City enacted the Ordinance that is the subject of this suit, which sets sixty-three as the maximum age for employment of sworn members of the Police Department and for any member of the uniformed service of the Fire Department. CMC § 2-152-410(a), (b).
A. Section 623(j)(1): Proper Age Requirements
1. Fitness Tests
The plaintiffs claim that the City violated the ADEA because it discharged them under the Ordinance without affording them an opportunity to prove their fitness for duty by taking the tests described in § 3(d)(2). Although no such tests were ever prescribed by HHS, the plaintiffs claim that the reference to § 3(d)(2) in § 623(j)(1) made performance testing a "first-tier prerequisite to mandatory retirement," and that "the spirit and the letter of Section 623(j)" require an opportunity to prove fitness before mandatory retirement. The plaintiffs cite Gately v. Massachusetts, No. CIV. A. 92-13018-MA, 1998 WL 518179 (D.Mass. June 8, 1998), in support of their argument that the City, like the defendants in Gately, ought to have retained an expert to develop tests in order to comply with the statute. But Gately was brought under § 623(f)(1) (the BFOQ provision), before the 1996 amendments, so the discussion of § 623(j)(1) as a Congressional endorsement of fitness tests is dictum. I cannot read Gately, a case arising under § 623(f)(1), to require employers to incur the cost of developing fitness tests to comply with § 623(j), particularly where Congress evidenced an intent in § 3(d)(2) to place that burden on HHS.
Before the expiration of the time for HHS to issue testing regulations, a court in this district examined a mandatory retirement ordinance that provided for the discharge of police officers at age sixty-five "unless 840 `otherwise demonstrating physical *840 and mental fitness pursuant to regulations to be promulgated by the United States Secretary of Health and Human Services.'" See Glennon v. Village of S. Barrington, No. 00 CV1264, 2000 WL 1230494, at *4 (N.D.Ill. Aug. 25, 2000) (Leinenweber, J.). The municipality had not afforded the plaintiff an opportunity to demonstrate his fitness, but the court held that the plaintiff failed to state a claim for a violation of the ADEA on that basis. Id. The plaintiff argued that the exemption was void because § (3)(d)(1) states that employers "shall" use performance tests developed by HHS, but "Congress ... promulgated § 623 without specific fitness tests to go immediately into effect." Id. at *4. The court assumed that § 623 was valid because the Seventh Circuit had analyzed several cases under that section and had not questioned its validity. Id. Glennon was decided prior to September 30, 2000, so it does not address the situation of what happens when HHS fails altogether to fulfill its mandate under § 3(d)(2). As far as I can tell, this is an issue of first impression.
Section 623(j)(1), as amended, contains no sunset provision, but it leaves a gap by requiring employers to comply with regulations that have not been promulgated. As a "general rule[,] exceptions to remedial statutes are to be narrowly construed." EEOC v. Chicago Club, 86 F.3d 1423, 1433 (7th Cir.1996). The plain language of the statute, the starting point in all statutory interpretation, United States v. Wagner, 29 F.3d 264, 266 (7th Cir.1994), merely mandates compliance with § 3(d)(2), so it offers no guidance in discerning Congress' intent. Section 3(d) (2), however, requires an employer to offer a fitness test developed by HHS "[e]ffective on the date of issuance of the [HHS] regulation," and requires an employer to offer tests only after HHS develops them and issues regulations. Section 3(d)(1) says that an employer "shall" use the performance tests developed and issued by the Secretary. One interpretation of § 623, the one rejected in Glennon, is that the exemption was void ab initio

because it required compliance with non-existent regulations. Put another way, § 623(j) says that an employer may discriminate based on age only if it complies with regulations promulgated by HHS, and if no regulations were promulgated, the employer could not comply and therefore could not meet the requirements of the public safety exemption. An alternative construction is that the fitness tests themselves were an exception to the exemption, with which the City had to comply only once regulations were promulgated. That is, because no regulations were ever promulgated, the effective date in § 3(d)(2) from which employers had to offer fitness tests never occurred, so the City was not in violation of § 3(d)(2) when it failed to offer fitness tests. Because the plain language of § 623 is ambiguous, I turn to the legislative history of the exemption to discern Congress' intent. See Central States, S.E. and S.W. Areas Pension Fund v. Robinson Cartage Co., 55 F.3d 1318, 1323 (7th Cir.1995).
841 The so-called "public safety exemption," H.R. 849,[4] was introduced in the House of *841 Representatives on February 7, 1995. 141 Cong. Rec. 3979. Representative Fawell, the sponsor, stated that, although age requirements as job qualifications are rarely justified, the "public safety arena" presents an exception, and he discussed testimony showing that existing physical tests were inadequate to ensure a fit and qualified workforce. Id. at 3982. During the floor debates the following month, Representative Fawell stated that the bill directed a federal agency to develop advisory guidelines for fitness tests, but he said "[u]ntil the point that adequate tests are in place however, I feel that the public safety exemption to the ADEA is necessary and that H.R. 849 should be quickly enacted." 141 Cong. Rec. 9491. Representative Owens supported the bill, and said that it "would permanently exempt state and local public safety agencies from the Age Discrimination in Employment Act in order to permit them to consider age in their hiring and retirement policies." Id. He also noted that fitness tests in existence at that time tended to discriminate against women and minorities, and that they were not an effective substitute for age limits. Id. at 9492. Representative Weldon said that "[f]itness tests are not a valid alternative to age limits," apparently because of the shortcomings of existing tests, and that "[i]n the absence of a valid fitness test, age limits ensure our public safety teams are in peak condition." Id. H.R. 849 passed the House on March 28, 1995. Id.
An identical bill, S. 553, was introduced in the Senate on March 14, 1995, by Senator Moseley-Braun. 141 Cong. Rec. 7765. Senator Moseley-Braun emphasized that federal public safety officers were subject to mandatory retirement based on age, and that the amendment would extend a similar exemption to State and local governments. Id. She recounted the history of the exemption and noted that the EEOC had failed to fulfill its mandate under the 1986 amendment to develop advisory guidelines and fitness tests. She noted that medical evidence demonstrated that age directly affects an individual's ability to perform the duties of public safety officers. Id. at 7766. She also said "you may ask why State and local governments cannot just develop tests to screen out those individuals who may still retain their strength at the age of 60 or 70. However, there is no adequate test that can simulate the conditions that firefighters and police officers face in the line of duty." Id.
S. 553 was subsumed by the Omnibus Consolidated Appropriations Act for 1997. During the floor debates on September 30, 1996, Senator Jeffords opposed the amendment and denied that existing tests were inadequate to measure fitness for public safety positions. 142 Cong. Rec. 26658. Senator Moseley-Braun again spoke in favor of the amendment, and again addressed the insufficiency of existing tests as a substitute for mandatory retirement ages. Id. at 26722. She noted that the amendment provided for a study of appropriate fitness tests, and said that "[t]he provision also includes an exception to the exemption whereby [the National Institutes of 842 Occupational Safety and Health, *842 an agency of HHS] will identify valid job performance tests and public safety agencies utilizing mandatory retirement ages will provide public safety officers who have reached retirement age with an annual opportunity to demonstrate their fitness using the [HHS] tests." Id. The Omnibus Act, including the amendment to § 623(j), passed on September 30, 1996. Pub.L. 104-208.
The legislative history points toward the second interpretation: that § 623(j) reinstated the public safety exemption from 1986 allowing mandatory age-based retirement, without a sunset provision, but subject to the use of fitness tests when and if suitable tests were ever made available by HHS. The supporters expressed skepticism about existing fitness tests, and proposed mandatory retirement as an alternative. Although several legislators noted that the EEOC had failed to comply with the mandate of the 1986 amendments to develop tests, none of the them indicated that the 1996 exemption would expire if HHS failed to fulfill its mandate, and at least one referred to the amendment as "permanent." Thus I conclude that § 623(j) permits the City to enact a mandatory retirement ordinance without offering fitness tests if HHS has not developed appropriate tests.

The plaintiffs argue that this interpretation produces an absurd result that frustrates the purpose of the statute and ignores Congressional endorsement of fitness tests. However, the legislative history suggests that the intent of the amendment was to reinstate an exemption from the ADEA allowing for age-based retirement for public safety officials because fitness tests were unreliable, expensive, and had potential discriminatory effects on women and minorities. The provision in § 623(j)(1) for compliance with § 3(d)(2) merely imposed an obligation on employers to provide tests when and if suitable tests became available; it did not make tests a condition precedent to the operation of the exemption. Because HHS has not promulgated the regulations called for by the statute, the City could not violate § 623(j)(1) by failing to provide fitness tests before enforcing the Ordinance.
2. Timing and Scope
The 2000 Ordinance covers all "sworn members" of the police department and all members of the "uniformed service" of the fire department, a broader class than the members of the "career service" covered by the ordinance in effect in 1983. The plaintiffs have argued, as support for their allegations of subterfuge, see below, that the City impermissibly broadened the scope of the Ordinance beyond its coverage as of March 3, 1983, in violation of § 623(j)(1)(A). See Roche v. City of Chicago, 24 F.3d 882, 884 (7th Cir.1994) (holding that, where plaintiff was in class of employees not covered by ordinance in effect on March 3, 1983, § 623(j) exemption was unavailable). However, Roche was decided before the 1996 amendments, which permitted mandatory retirement ordinances enacted after September 30, 1996, as long as the age was not lower than fifty-five. See § 623(j)(1) (B). The complaint alleges that the Ordinance was enacted on May 17, 2000, and establishes a retirement date of sixty-three. The plaintiffs argue in their surreply that the Ordinance is subject to the March 3, 1983, restriction in § 623(j)(1)(A) because it contains the same age that existed in the mandatory retirement provision in effect on that date. But § 623(j)(1)(B)(ii) provides an alternative[5] "if applicable State or local law was enacted after 843 September 30, 1996," in which case discharge is lawful if the officer has reached the higher of the *843 age in effect under the new law or 55. Notably, § 623(j)(1)(B)(ii) does not refer to the enactment of a new "age," it says a new "law." The plaintiffs consistently argue that the 2000 Ordinance is different from earlier versions because the scope of coverage is broader. By the plain language of the statute, it is a new law that was enacted after 1996, so it falls within the requirements of § 623(j)(1)(B)(ii), and sixty-three was the age in effect in 1983, id. at (j)(1)(B)(ii) (I), so there is no violation based on the broader scope of coverage.
B. Section 623(j)(2): Subterfuge
The plaintiffs argue that the interpretation of § 623(j)(1) given above, allowing municipalities to broaden the scope of mandatory retirement ordinances by enacting new law, renders the "subterfuge" prohibition meaningless, but it is consistent with the statutory scheme if subterfuge means something more than a violation of the age limitations in (j)(1), and I hold that it does. Section 623(j) requires that mandatory retirement of public safety officials meet the requirements of subsection (1) and that it be "pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter." § 623(j)(2). "[T]he term `subterfuge' must be given its ordinary meaning as `a scheme, plan, strategem, or artifice of evasion.'" Public Employees Retirement Sys. of Ohio v. Betts, 492 U.S. 158, 167, 109 S.Ct. 2854, 106 L.Ed.2d 134 (1989).
In Kopec v. City of Elmhurst, 193 F.3d 894 (7th Cir.1999), a case involving an age-based hiring criterion, the court noted that, "[t]o the extent that a hiring plan includes a maximum age of hire, what little case law there is on the subject suggests that the plan will not be considered a `subterfuge to evade the purposes of [the] Act' so long as the age criterion pre-dates the ADEA (or its extension to the employees of state and local governments)." Id. at 901. The City argues that Kopec is controlling, and that the Ordinance is presumptively not a subterfuge because it provides for the same age of mandatory retirement as all previous versions of the City's mandatory retirement ordinance, including those that predate the ADEA. This position might seem to find some support in Kopec, but not when that opinion is read in its entirety.
After making the observation quoted above, the court in Kopec went on to consider the question of subterfuge separately from the age requirements in § (j)(1). There the only question presented on the issue of subterfuge

was whether the challenged hiring plan qualified for the exception without "proof that the maximum hiring age amounts to a BFOQ, that is, a requirement `reasonably necessary to the normal operation' of the city's police force." Id. The Seventh Circuit rejected this argument as a matter of law because that reading would collapse the exemption in § (j)(1) into the BFOQ exception in § (f). Id. at 902. The Seventh Circuit was not presented with any evidence of subterfuge, so the court affirmed the grant of summary judgment against the plaintiff. Likewise, in McCann, on which the City relies, the court dismissed the subterfuge claim because the plaintiffs failed to "allege any facts to support a conclusion that the City amended its ordinance with the intent to circumvent the ADEA." 1990 WL 70415 at *4.
The Ordinance, on its face, states that its purpose is public safety, Pl's Ex. A, and the City argues that any inquiry into subterfuge should end here. However, the plaintiffs allege that the purpose of the Ordinance was not public safety; they claim that, in fact, the "Ordinance was enacted for the purpose of eliminating from the ranks of the 844 Police [and Fire] Department[s] ... officers who had surpassed 63 years of age so that, among *844 other reasons, the City could promote younger police [and fire] officers within its ... Department[s]." Drnek Compl. ¶ 17; see also Minch Compl. ¶ 23. At oral argument on March 8, 2000, the plaintiffs made additional factual allegations that the City's true purpose was to "make room for young people coming in" to the police and fire departments, citing public statements by the Ordinance's sponsor and by high-ranking City officials.[6]
The City objects that inquiry into the state of mind of the individual aldermen or City officials is irrelevant and immaterial, citing Pacific Gas Elec. Co. v. State Energy Resources Conservation & Devel. Comm'n, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983), in which the Supreme Court noted, in the context of preemption, that it would "not become embroiled in attempting to ascertain [the state legislature's] true motive." Id. at 216, 103 S.Ct. 1713. The Court gave two reasons: first, that "inquiry into legislative motive is often an unsatisfactory venture." Id. Here the question of whether the Ordinance is indeed a subterfuge is one, ultimately, for the trier of fact, EEOC v. Home Ins. Co., 672 F.2d 252, 262 (2d Cir.1982), and it is not for me to determine whether an inquiry into the City Council's motives would be an unsatisfactory venture or a revealing expedition. See Smith v. Cash Store Mgmt., Inc., 195 F.3d 325, 327 (7th Cir. 1999) (Under Rule 12(b)(6) "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.").
The Court's second reason for disregarding evidence of the state legislature's "true motive," however, is more to the point. Under the preemption analysis in Pacific Gas, federal law preempted any state law that regulated nuclear waste disposal for public safety purposes, but did not preempt state regulation of the same activities "for purposes other than protection against radiation hazards." Id. at 210, 103 S.Ct. 1713. Thus, the question was only whether there was a conceivable non-safety rationale for the state's legislation, id. at 213, 103 S.Ct. 1713, and the Court needed to look no further than the state statute's statement of purpose, which gave an economic rationale, id. at 216, 103 S.Ct. 1713. The Court did not prohibit all inquiry into legislative motive; it held only that it was "pointless" in that case in light of the legal standard. Id.[7]
Federal preemption in Pacific Gas was a question of law, id. at 201, 103 S.Ct. 1713, but "subterfuge" under the ADEA is a question of fact, Home Ins. Co., 672 F.2d at 262, and the City's "true motive" matters. In Betts, the Supreme Court held that "subterfuge," in the context of a pension benefit section of the ADEA, "connotes a specific `intent to evade a statutory requirement.' The term thus includes a subjective element ...." 492 U.S. at 845 171, 109 S.Ct. 2854 (citations omitted). Thus the intent or desire of aldermen or other *845 City officials is both relevant and material. A subterfuge analysis, like a pretext analysis under a traditional McDonnell Douglas-style analysis, necessarily requires the trier of fact to look beyond the defendant's statement of purpose or intent to see whether it is just an excuse or an "artifice of evasion" to cover-up otherwise prohibited conduct.
At oral argument, the City said that the inevitable result of mandatory retirement under § 623(j) is that there is more room to hire and promote younger employees. As a factual matter, this may be true, but it does not follow, as the City suggested during oral argument, that "making room" and other "favorable treatment of younger employees is a necessary component of discharge on the basis of age, which is lawful under the ADEA." Replacement of older employees by younger employees solely on the basis of age is precisely the type of discrimination that the ADEA was enacted to prevent. See generally Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (Purpose of ADEA was to protect older employees from "inaccurate and stigmatizing stereotypes" that younger employees perform better.); see also Home Ins. Co., 672 F.2d at 262

("[E]xplicit appeal to [benefit of] the `young,'" was sufficient to raise question of fact about defendant's motivation to subvert the purpose of the ADEA). Age-based retirement is tolerated in limited circumstances under § 623(j), but not for the wrong reasons, i.e., not for reasons that are merely a cover-up for the type of ageism prohibited by the ADEA.
The City argues that requiring it to demonstrate that the purpose of the Ordinance is public safety would have the effect of imposing a BFOQ analysis under § 623(j), a result which the Seventh Circuit has forbidden. See Kopec, 193 F.3d at 902. This overstates the result. Although it is commonly referred to as the "public safety exemption," § 623(j) does not prescribe the permissible purposes for mandatory retirement ordinances, but it does tell States and municipalities what the impermissible purposes are. It does not matter, therefore, whether age-based mandatory retirement is "reasonably necessary to the normal operation" of the police and fire departments under the BFOQ analysis; what matters is that the City does not use the public safety exemption as a means of achieving goals, such as cleaning house to "give[] young guys the opportunity to get promoted and ... allow removal of deadbeats in the senior ranks,"[8] that are otherwise prohibited by the ADEA. Unlike the standards applied in Pacific Gas and the equal protection cases cited by the City, it is not enough that a permissible motive is conceivable; under § 623(j)(2), the wrong motive is fatal, even if a permissible motive can be imagined.
At oral argument, the plaintiffs provided additional factual narration suggesting that the introduction of the Ordinance was delayed, four years after Congress passed the 1996 amendment, until a close friend of the Mayor retired in 2000 at age 68. In Kopec, the Seventh Circuit held that the safe harbor of § 623(j) is available "for all States and municipalities that had age limits in place in 1983, not just to those that have chosen to keep restrictions in place in the ensuing years." 193 F.3d 894, 900 (emphasis in original). However, that discussion related only to whether the age requirements in question satisfied the requirements of § 623(j)(1). Id. at 900. The plaintiff there did not argue that suspicious timing was evidence of subterfuge, and the court did not address the 846 issue. In fact, suspicious timing of enactment *846 could not have played a role in that case because the city there had not actually reenacted its ordinance at the time of the adverse employment action. See id. at 905 (Posner, J., dissenting). Drawing all inferences in favor of the plaintiffs at this juncture, the four-year delay in reenactment and the coincidental retirement of the mayor's friend, if true, could, depending upon what other evidence was presented, warrant an inference that public safety was not a dominant concern for the City.
The plaintiffs also argue that the Ordinance impermissibly expands the scope of its coverage beyond what it was on March 3, 1983 by including a broader class than the members of the "career service" that were covered by the ordinance in effect in 1983. They cite Roche, 24 F.3d at 885-86, for the proposition that any ordinance that is broader in scope than the ordinance in effect in 1983 is a subterfuge to evade the ADEA, but Roche did not address the question of subterfuge, and, more importantly, it was decided under the 1986 exemption, which did not contain the provision for new laws that is in the 1996 amendment. See 29 U.S.C. § 623(j)(1)(B)(ii).[9] I have already held, because the Ordinance is a new law, that its broader scope does not violate § (j)(1)(B)(ii), and the plaintiffs offer no support for the proposition that action consistent with the requirements of the ADEA, by itself, could support an inference of subterfuge.
Finally, the City argues that the Ordinance cannot be read in isolation, and that it is part of an overall system of retirement benefits that is "bona fide" in the sense that it is a legitimate, benefit-paying retirement system, see Kopec, 193 F.3d at 901, and that the whole retirement system is not a subterfuge. However, at least one court has rejected the argument that a "bona fide" plan is ipso facto "not a subterfuge," because if "bona fide" and "not a subterfuge" meant the same thing, Congress would have had no reason to use both phrases. Home Ins. Co., 672 F.2d at 260; see also Kopec, 193 F.3d at 902 (interpreting § 623(j)(2) to require that a hiring plan be both "bona fide and not a subterfuge") (emphasis added). Moreover, a "bona fide" hiring or retirement plan is only one "that is genuine and pursuant to which actual hiring [or retirement] decisions are made," id. at 901; to say that a bona fide plan cannot be a subterfuge to evade the purposes of the ADEA requires an inference that the only purpose of the ADEA is orderly payment of retirement benefits, and that is clearly not so. See Home Ins. Co., 672 F.2d at 260. Finally, the City's argument fails logically. If the Ordinance is merely part of the overall system of retirement benefits, and the Ordinance is a subterfuge, then it cannot be that the overall system is not also, at least in part, a subterfuge. The plaintiffs state a claim for a violation of the ADEA under the subterfuge provision of § 623(j)(2).

III. Due Process
To state a Fourteenth Amendment claim for the deprivation of a property interest without due process, the 847 plaintiffs must (1) show that they have a constitutionally protected property interest,[10] and *847 (2) allege that
they were deprived of this interest without due process. Kim Constr. Co., Inc. v. Board of Trustees of Village of Mundelein, 14 F.3d 1243, 1245 (7th Cir. 1994). The City originally argued only that there is no property interest, but after the plaintiffs raised the issue in their response, the City argued that the process provided under the plaintiffs' collective bargaining agreements was adequate. However, the cases that it cites stand only for the proposition that due process may be satisfied by procedures in collective bargaining agreements. What procedures were provided for under the agreements in this case and whether they were actually available to the plaintiffs are factual questions that must be resolved in favor of the plaintiffs for the purposes of this motion, and the City does not argue that the agreements are facially dispositive of this issue, so dismissal on this ground is not proper. Therefore only the existence of a property interest is at issue here.
"Property interests `are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ....'" Ledford v. Sullivan, 105 F.3d 354, 357 (7th Cir.1997). "[F]ederal property interests under the 14th Amendment usually arise from rights created by state statutes, state or municipal regulations or ordinances, and contracts with public entities." Ulichny v. Merton Cmty. Sch. Dist., 249 F.3d 686, 700 (7th Cir.2001). Furthermore, "`property interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, property denotes a broad range of interests that are secured by existing rules or understandings.'" Id. (citing Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)).
The City attached portions of the police and firefighters' collective bargaining agreements ("CBA") to its motion to dismiss. Both the police and the firefighters CBAs have been ratified by the Chicago City Council, and although they are not codified in the Municipal Code, they are ordinances of which I may take judicial notice under Fed.R.Evid. 201(d), and I may consider them without converting the motion to one for summary judgment. See Menominee Indian Tribe, 161 F.3d at 456; Newcomb, 558 F.2d at 829.
A. Firefighters
Section 16.2B of the firefighter's CBA states that "employees shall be disciplined and discharged only for just cause." Pl.'s Ex. J. The plaintiffs argue that nothing in the firefighters' contract suggests that attaining age sixtythree is cause for termination. Section 13.1 of the CBA also states that the City shall not discriminate against any employee covered by the CBA on the basis of age, among other things.[11] Pl.'s Ex. J. Article XIX of the CBA states that ratification of the CBA by the City Council commits the City to enact no subsequent ordinances[12] that would impair the enforcement of any of the CBA's terms. Id. Furthermore, Illinois law states that "any collective bargaining contract between a public employer and a labor organization executed pursuant to [the Illinois Public Labor Relations] Act shall supersede any contrary statutes, charters, ordinances, rules or 848 regulations relating to wages, hours and conditions of *848 employment and employment relations adopted by the public employer or its agents." 5 ILCS 315/15(b).
Under the CBA, the firefighter plaintiffs had a legally protected interest in continued employment, see Roman v. United States Postal Serv., 821 F.2d 382, 386 (7th Cir.1987) (finding property interest based on collective bargaining agreement that provided for termination only for "just cause"), and the nondiscrimination provision in the CBA extends that interest to include protection from discharge on the basis of age. For the purposes of this motion, I must take as true the plaintiffs' allegation that they were fired solely because of their age, so they have stated a claim for a deprivation of a property interest.
The plaintiffs' claim to a property right based on the nondiscrimination provision is distinguishable from a mere expectation of fairness. The Seventh Circuit has held that, where a state statute and municipal ordinance guaranteed that civil service promotion examinations would be fair, that guarantee of fairness did not rise to the

level of a property interest where there was no underlying entitlement to the promotion itself. See Bigby v. City of Chicago, 766 F.2d 1053, 1056-57 (7th Cir.1985); see also McMenemy v. City of Rochester, 241 F.3d 279, 287 (2d Cir.2001) ("But because [the plaintiff] had no legitimate claim of entitlement to 0907and therefore no property interest in0907the position to which he aspired, the procedures used to fill that job are immaterial to his due process claim."). Here, however, the promise not to discriminate runs to a job in which the firefighter already has an entitlement, and the promise enhances the existing protection in contemplation of naked age discrimination, which is alleged to have occurred here.
In reply, the City points to § 9.1(C) of the CBA, which states that, in addition to a disciplinary termination for "just cause," a firefighter's employment may be terminated when he "[r]etires or is retired." Reply at 25. The City argues that the "retires or is retired" language contemplates mandatory retirement, but I must view the CBA in its entirety; a "contract is to be interpreted from an examination of the complete document and not an isolated part." Western Cas. & Sur. Co. v. Brochu, 105 Ill.2d 486, 86 Ill.Dec. 493, 475 N.E.2d 872, 876 (1985). The passive "is retired" language must be read as subject either to the provision for disciplinary discharge for "just cause," or to the nondiscrimination clause, if either of those provisions is to be afforded meaning. See Leahy Realty Corp. v. American Snack Foods Corp., 253 Ill.App.3d 233, 192 Ill.Dec. 801, 625 N.E.2d 956, 966 (1993) ("Courts should avoid giving an interpretation to a provision that will nullify the clear and unambiguous language of another provision."). Nor is the "in accordance with applicable law" provision in § 13.1 dispositive; I have already concluded that the plaintiffs state a claim for a violation of the ADEA, so they have also stated a claim for a violation of the City's contractual obligation to abide by the law. The firefighter plaintiffs have sufficiently alleged the deprivation of a property interest.
B. Police
The police CBA also contains a nondiscrimination provision, but that provision contains a limitation: "Nothing in this Agreement shall be deemed to preclude the mandatory retirement of any officer upon or after the attainment of age 63." Ex. M, § 10.2. Unlike the firefighters' CBA, then, the nondiscrimination provision here does not create a property interest in employment after age sixty-three. The plaintiffs do not respond to the City's argument that 849 the CBA does not provide a property interest for police officers age sixty-three or older, but argue *849 only that "there can be no doubt that this provision was intended to be enforced in a lawful manner and without waiving due process." Resp. at 32. There can be no due process violation without a property interest, however, see Kim Constr. Co., 14 F.3d at 1245, and the plaintiffs have not identified any provision of the police CBA that creates such an interest.[13] The plaintiffs argue that "[t]o the extent that the collective bargaining agreements for police officers permitted the City to engage in mandatory retirement, they did not permit the City to use mandatory retirement as a means to engage in arbitrary and capricious age discrimination." Resp. at 32. At best this argument may be construed as saying that both the mandatory retirement ordinance and the police CBA violate the ADEA, but attacking the validity of the CBA does not demonstrate that the intent of the parties to the CBA was to establish a property interest in employment after age sixty-three.
Beyond the CBA, the plaintiffs point to several rules and ordinances, but none of them establishes a protectable property interest in employment after the age of sixty-three. They cite to a district court case about reinstatement for the proposition that certain City personnel rules create a property interest, see Townsend v. City of Chicago, No. 87 C 6097, 1988 WL 61162, at *2 (N.D.Ill. June 3, 1988) (Parsons, J.), but they do not identify which specific City rules allegedly create a protected interest here. In any event, the statement in that case that "under these rules all `permanent' Career Service employees have a property interest in their continued employment" is dictum, because the question there was whether the plaintiff, who had resigned but was placed on a reappointment list had a property interest in prospective employment. Id. at *2-3. The case cited by the Townsend court for that proposition found the property interest based on a memorandum, and held only that the City rules and ordinances defined the process due. See Fontano v. City of Chicago, 820 F.2d 213, 215-16 (7th Cir.1987).
The plaintiffs argue that the City's non-discrimination ordinance, CMC § 2-74-080, creates a property interest in employment after age sixty-three because it prohibits discrimination based on age. Unlike the nondiscrimination provision in the firefighter's CBA, which imposes a contractual obligation on the City to obey nondiscrimination laws, the freestanding nondiscrimination ordinance does not come as part of a package of obligations that

includes continuing employment. Without a connection to an existing property interest, a promise of nondiscrimination is no more than a mere expectation of fairness. See Bigby, 766 F.2d at 1056-57. Even if the plaintiffs could state a claim for a violation of the nondiscrimination ordinance, that standing alone would not create a property interest.
Moreover, the Chicago Commission on Human Relations ("CCHR") has held that the City's Human Rights Ordinance, CMC § 2-160-030,[14] which forbids age discrimination, is superseded by the mandatory retirement Ordinance. See In the Matter of Minch et al., Nos. 01-E-21/44/48 (CCHR Aug. 24, 2001) (slip op.). It held that, to the extent that the two ordinances conflicted, the mandatory retirement Ordinance, as the more recent and more 850 specific *850 of the two, controlled, and that the only way to read the two ordinances together and give effect to both was to hold that the mandatory retirement Ordinance created an exception to the human rights ordinance. See id. at 16. I find this reasoning persuasive, and conclude that because the human rights ordinance has been "amended silently," id., to allow mandatory retirement at age sixty-three, it cannot provide the basis for a property interest.
The same reasoning also applies to the plaintiffs' argument that the municipal code provides procedural protections for discharged police officers. The provision they cite in support of this, CMC § 2-84-030, states that "[n]o officer or employee of the police department in the classified civil service of the city ... may be removed or discharged, or suspended ... except for cause upon written charges and after an opportunity to be heard in his own defense by the police board." Read together with the more recent and specific mandatory retirement Ordinance, it cannot create a property interest in employment after age sixty-three. Furthermore, the sentence cited by the plaintiffs appears in a paragraph describing the police board's power to conduct disciplinary hearings. Because there is no allegation that any of the plaintiffs were discharged for disciplinary reasons, this section does not apply here.
Finally, the plaintiffs claim that they have a property interest in their pension benefits because the Illinois constitution guarantees that membership in a pension plan is a contractual relationship, "the benefits of which shall not be impaired." Ill. Const. Art. XIII, § 5. Specifically, they claim that any purported class members who have not reached minimum vesting in their pensions ("unvested plaintiffs") have a right not to have their benefits reduced by forfeiture of the City's contribution, and that members of the class whose pensions have reached minimum vesting ("vested plaintiffs") have a right not to have their benefits capped by not receiving future annual raises.[15]
The claim as to vested plaintiffs has been rejected by the Illinois Supreme Court. See Peters v. City of Springfield, 57 Ill.2d 142, 151-52, 311 N.E.2d 107 (1974). In Peters, the City of Springfield enacted an ordinance lowering the mandatory retirement age from sixty-three to sixty. Id. at 108. The plaintiffs, three firemen retired under the ordinance, sued, among other reasons, on the ground that the ordinance interfered with their pension rights in violation of Article XIII, § 5. Id. at 111. Under the pension plans, firemen over the age of fifty with twenty or more years of service were entitled upon retirement to a monthly pension equal to fifty percent of their annual salary, subject to annual one percent increases up to a maximum of sixty-five percent. Id. The plaintiffs, who were vested respectively at fifty-two percent, fifty-eight percent, and sixty-five percent at the time of their retirement, argued that they had a constitutionally protected right to work until they reached sixty-five percent or age sixtythree, whichever was sooner. Id. The court noted that because the pension plan was based on salary and length of service, there were many variables that could affect the amount of the pension, including changes in employment status. Id. at 112. The City of Springfield and amicus curiae (including the City of Chicago) argued that the right to work until a certain age or until maximum vesting was not a "pension benefit" protected by § 5. 851 The court *851 agreed, and held that § 5 "was not intended, and did not serve, to prevent the defendant City from reducing the maximum retirement age, even though the reduction might affect the pensions which plaintiff would ultimately have received." Id. Peters is controlling, so neither § 5 nor Illinois pension laws create a protectable interest in employment beyond the age of mandatory retirement. See also Booth v. Sims, 193 W.Va. 323, 456 S.E.2d 167, 181-82 (1995) ("Although participation in a government pension system and forbearance in seeking other employment create an employee's contract right to pension benefits under [the state constitution], such participation does not create contract rights to government employment."). The plaintiffs do not explain why this

rule should not also be applied to any unvested plaintiffs, whose entitlement to benefits under the pension laws is weaker, not stronger.
The plaintiffs acknowledge the holding of the Illinois Supreme Court in Peters, but argue that it is "not dispositive" of all of their Illinois due process claims, and that it does not "negate decisions of the Seventh Circuit which acknowledge the existence of protect[a]ble 14th amendment Due Process claims with respect to pension benefits." (Citing Buttitta v. City of Chicago, 9 F.3d 1198 (7th Cir.1993)). Buttitta involved a plaintiff who had been placed on disability leave, but not terminated, who claimed that the Illinois Pension Code created a property right to demonstrate his fitness for active duty. Id. at 1202. The court construed a section of the Pension Code that provided for transfer of an officer on disability leave between the Pension Board and the Police Department. See 40 ILCS 5/156. Noting that "the statute's language is directed primarily toward the prevention of fraudulent disability claims," the court held that "§ 5-156 created in police officers a property interest to the extent that police officers who have been disabled may not be deprived of the opportunity to demonstrate their fitness for active duty." Id. at 1204. But § 5-156 does not apply here, because the plaintiffs were not on disability leave, and they have identified no similar provision of the Pension Code that would create such interests in the case of mandatory retirement.
The plaintiffs also cite to Swick v. City of Chicago, 11 F.3d 85 (7th Cir.1993), for the proposition that the court could "imagine a case in which a period of forced inactivity impeded promotional opportunities or had indirect effects on post-retirement income." But those facts were not presented to the Seventh Circuit, so it never reached the question of whether the plaintiff actually had an entitlement to the lost income and opportunities. If it had reached the question, it would have run into Peters, where the Illinois Supreme Court held that such an indirect effect was insufficient to trigger the protections of Illinois law regarding pensions, 311 N.E.2d at 112, and it is state law, not federal law, that creates the property rights protected by the Fourteenth Amendment, see Ledford, 105 F.3d at 357. The police plaintiffs have failed to identify a state law that creates an entitlement to due process upon mandatory retirement at age sixty-three, so they cannot state a claim for a deprivation of due process.
IV.
The City's motion to dismiss is DENIED as to the ADEA claims of all of the plaintiffs. The motion is also DENIED as to the due process claims of the firefighter plaintiffs, Minch and Graf. The motion is GRANTED as to the due process claims of the police plaintiffs, Drnek and Cosentino.
[1] The putative class action was originally filed before Judge Norgle, but was reassigned to me based on relatedness. See Minute Order of 5/18/01.
[2] I may take judicial notice of municipal ordinances on a motion to dismiss without converting the motion to one for summary judgment. See Menominee Indian Tribe of Wisc. v. Thompson, 161 F.3d 449, 456 (7th Cir.1998); Newcomb v. Brennan, 558 F.2d 825, 829 (7th Cir.1977).
[3] The complete text of § 623(j) follows:
(j) Employment as firefighter or law enforcement officer
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 0907
(1) with respect to the employment of an individual as a firefighter or as a law enforcement officer, the employer has complied with section 3(d)(2) of the Age Discrimination in Employment Amendments of 1996 if the individual was discharged after the date described in such section, and the individual has attained 0907
(A) the age of hiring or retirement, respectively, in effect under applicable State or local law on March 3, 1983; or
(B)(i) if the individual was not hired, the age of hiring in effect on the date of such failure or refusal to hire under applicable State or local law enacted after September 30, 1996; or

(ii) if applicable State or local law was enacted after September 30, 1996, and the individual was discharged, the higher of0907
(I) the age of retirement in effect on the date of such discharge under such law; and
(II) age 55; and
(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.
[4] An identical version had twice passed in the House but failed in the Senate. The House Report on one of the earlier bills stated that the purpose of the amendment was to permit, but not require, the use of mandatory retirement ages for State and local firefighters and police officers. H.R. Rep. 103-314, 1993 WL 444307 (1993). At the conclusion of its explanation, the report stated that:
the Committee is opposed to the expiration of the public safety exception to the ADEA and effectively mandating that States and localities adopt physical and mental fitness tests as an alternative to age-based hiring and retirement policies. States and localities may choose to develop such tests and H.R. 2272 allows them to do this. However, given the paucity of knowledge about appropriate performance standards and the great uncertainty about the effectiveness and legality of one or another performance test, Congress should not force every public safety agency to use such tests.
In making the public safety exception to the ADEA permanent, the Committee does not intend to forever close the door on this issue but rather to ensure that when Congress does re-examine this issue, it does so because there [is] ... significant evidence of reasonable, effective alternatives to age-based policies that do not have an adverse impact on women and minorities.
Id. Thus, the Committee intended that the public safety exemption should apply, without a sunset provision, until a more satisfactory testing alternative became available.
[5] Section (j)(1) refers to attainment of the age in subsection (A) "or" (B).
[6] I may consider the plaintiffs' additional factual narration without converting this motion to one for summary judgment. Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir.2000).
[7] The City also cites two equal protection cases in which the court employed rational basis review of legislation. See Hearne v. Board of Educ. of the City of Chicago, 185 F.3d 770, 775 (7th Cir.1999); Brown v. City of Lake Geneva, 919 F.2d 1299, 1302 (7th Cir. 1990). In both cases, the court rejected the argument that "legislation that otherwise passes the proper level of scrutiny ... becomes constitutionally defective because one of the reasons the legislators voted for it was to punish those who opposed them during an election campaign." Hearne, 185 F.3d at 775. As in Pacific Gas, the legislators' motives were disregarded because they were irrelevant in light of the standard, not because such an inquiry is never permissible.
[8] This statement, offered by the plaintiffs at oral argument, is attributed to Alderman Beavers, the sponsor of the Ordinance, in a February 2, 2000 article in the Chicago Tribune.
[9] The plaintiffs also cite Stewart v. City of Chicago, No. 92 C 4919, 1994 WL 46672 (N.D.Ill. Feb 14, 1994) (Grady, J.), in support of this proposition, but Stewart was also decided under the 1986 amendment, so its implicit holding that a violation of § (j)(1) is evidence of subterfuge, id. at *4, even if correct under the earlier statute, is not dispositive here.
[10] The existence of a liberty or property interest is a threshold requirement for a due process claim under the Illinois Constitution, East St. Louis Federation of Teachers v. East St. Louis Sch. Dist. No. 189, 178 Ill.2d 399, 227 Ill.Dec. 568, 687 N.E.2d 1050, 1060 (1997), so the analysis is the same for the state and federal claim.
[11] Section 13.1 states that "[i]n accordance with applicable law, neither the Employer nor the Union shall discriminate against any employee covered by this agreement because of race, creed, color, national origin, sex age, religion or political affiliation."

[12] The Ordinance was enacted on May 17, 2000, subsequent to ratification of the CBA on January 14, 1998.
[13] For the same reasons, the plaintiffs' claim that a property interest is created by § 2-74-050(1), which provides that career service employees may only be discharged "consistent with the requirements of due process of law," must fail. No process is due if there is no property interest.
[14] § 2-74-080 incorporates chapter 2-160 by reference.
[15] Because the class certification issue has not been presented to me, I address only the claims of the individual plaintiffs, but neither party identifies the vesting status of the named plaintiffs, so I address arguments on behalf of both vested and unvested police officers.
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 205 F.Supp.2d 894 (2002)
Donald DRNEK, Plaintiff, v.
CITY OF CHICAGO, an Illinois Municipal Corporation, Defendant. James D. Minch, Richard A. Graf, and Richard Cosentino, individually, and on behalf of a
class of all individuals who are similarly situated, Plaintiffs, v.
City of Chicago, an Illinois Municipal Corporation, Defendant.
No. 01 C 0840.
United States District Court, N.D. Illinois, Eastern Division.
May 24, 2002.
895 *895 William W. Thomas, Futterman & Howard, Chtd., Clinton A. Krislov, Michael R. Karnuth, Krislov & Associates, Ltd., Joan Matlack, Putterman & Howard, Ronald L. Futterman, Futterman & Howard, Chtd., Chicago, IL, for Plaintiffs.
Patricia M. Carroll-Smit, Barbara Susan Smith, City of Chicago, Law Department Corporation Counsel, Mara Stacy Georges, Nancy L. Van Allen, City of Chicago, Department of Law, Chicago, IL, for Defendants.
MEMORANDUM OPINION AND ORDER
BUCKLO, District Judge.
On March 25, 2002, I granted in part and denied in part the City's motion to dismiss the plaintiffs' age discrimination and due process complaints. See Drnek v. City of Chicago, 192 F.Supp.2d 835 (N.D.Ill.2002). The City moves to amend that order to include a certification of the following question for interlocutory appeal under 28 U.S.C. § 1292(b):
whether allegedly illicit motives on the part of individual legislators and municipal officials for enacting a retirement plan that mandatorily retires police and fire personnel at age 63 and results in their replacement with younger workers can demonstrate subterfuge under section 623(j) of the ADEA.
Mot. at 5. I also treat the motion as one to reconsider in light of the City's primary reliance on a case that it did not cite in its underlying briefs. See Minute Order of 4/10/02.
I. Motion to Reconsider
"Motions for reconsideration serve a limited function; to correct manifest errors of law or fact or to present newly 896 discovered evidence. Such motions cannot in any case be employed as a vehicle to *896
introduce new evidence that could have been adduced during pendency of the [underlying] motion.... Nor should a motion for reconsideration serve as the occasion to tender new legal theories for the first time." Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.1987). Nonetheless, "reconsideration performs a valuable function where the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990).
The City challenges a very narrow part of my opinion: my consideration of the plaintiff's allegations of discriminatory animus in deciding that there were questions of fact precluding dismissal. At oral argument, the

plaintiffs produced allegations that the City's true purpose for enacting the mandatory retirement ordinance was to clear out older employees to make room for promotional opportunities for younger employees. The City argued, then and now, that I could not look beyond the face of the ordinance to determine whether it was a subterfuge to evade the purposes of the ADEA. I rejected the City's reliance on Pacific Gas Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983), for the proposition that inquiry into the motives of the legislators' state of mind was never permissible. I held that Pacific Gas was distinguishable on two grounds: (1) that subterfuge is a factual question, whereas preemption, the issue in Pacific Gas, is a matter of law; and (2) that the legal standards in Pacific Gas and under the ADEA were different, and that the "true motive" of the legislators does matter for the purposes of § 623(j)(2) of the ADEA. See 192 F.Supp.2d at 844. The City argues that I erred in distinguishing Pacific Gas and points to Bell v. Purdue University, 975 F.2d 422 (7th Cir.1992), which it did not cite in any of its briefs on the underlying motion. The Seventh Circuit in Bell, when presented with anecdotal evidence that the defendants preferred younger employees, stated that "the defendants cannot be liable for their motives if their conduct has not evaded the ADEA's prohibitions." Id. at 429.
Bell involved an application of the Supreme Court's decision in Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158, 109 S.Ct. 2854, 106 L.Ed.2d 134 (1989), to a challenge to a fringe benefit plan under § 623 (f)(2) of the ADEA, rather than § 623(j), which is the provision at issue in this case. Section 623(a)(1) of the ADEA prohibits the failure or refusal to hire any individual, termination, or other discrimination "with respect to [the] compensation, terms, conditions, or privileges of employment, because of such individual's age." At the time Betts was decided, § 623(f)(2) provided an exemption from § 623(a)(1), and provided that it was not unlawful to observe the terms of a bona fide benefit plan that was not a subterfuge to evade the purposes of the ADEA, with the proviso that no plan could require or permit age-based involuntary retirement. Betts, 492 U.S. at 165-66, 109 S.Ct. 2854. In Betts, the Court rejected an administrative interpretation of "not a subterfuge" that put the burden on the employer to demonstrate a cost-based justification for differential treatment of older employees, id. at 170-75, 109 S.Ct. 2854, then set about the more difficult task of defining "subterfuge" for the purposes of § 623(f) (2).
Noting that the purposes of the ADEA could not be separated from its substantive provisions, the Court held that 897 a plan enacted after the enactment of the ADEA "cannot be a subterfuge to evade the *897 ADEA's purpose of
banning arbitrary age discrimination unless it discriminates in a manner forbidden by the substantive provisions of the Act." Id. at 176, 109 S.Ct. 2854. Section 623(a)(1) is the primary enforcement mechanism of the ADEA, and the Court acknowledged that "[t]he phrase `compensation, terms, conditions, or privileges of employment' in § [623](a)(1) can be read to encompass employee benefit plans of the type covered by § [623](f)(2)," but it rejected this interpretation because it "would in effect render the § [623](f)(2) exemption nugatory with respect to post-Act plans. Any benefit plan that by its terms mandated discrimination against older workers would also be facially irreconcilable with the prohibitions in § [623](a)(1) and, therefore, with the purposes of the Act itself." Id. at 177, 109 S.Ct. 2854.
Thus, in order to give effect to both § 623(a)(1) and § 623(f)(2), the Court concluded that § 623(f)(2) "exempt[s] the provisions of a bona fide benefit plan from the purview of the ADEA so long as the plan is not a method of discriminating in other, non-fringe-benefit aspects of the employment relationship." Id. After considering the legislative history, the Court concluded that "this result permits employers wide latitude in structuring employee benefit plans, [but] it does not render the `not a subterfuge' proviso a dead letter." Id. at 180, 109 S.Ct. 2854. It gave two examples of possible actionable subterfuges: (1) "adopt[ing] a [fringe benefits] plan provision formulated to retaliate against ... an employee" who had "participated in the filing of any age-discrimination complaints of litigation" in violation of § 623(d), which prohibits retaliation; and (2) "an employer's decision to reduce salaries for all employees while substantially increasing benefits for younger workers," i.e., "utilizing [the] benefits plan as a subterfuge for age-based discrimination in wages, an activity forbidden by § [623](a)(1)." Id. The Court concluded by stating that the defendant did not have a duty to prove the absence of subterfuge; instead, the existence of subterfuge was effectively an element of the plaintiff's prima facie case on which it bore the burden of proof. Id. at 181, 109 S.Ct. 2854.
The Seventh Circuit in Bell recited these standards and applied them to an employee challenge to a pension benefit plan that discontinued pension contributions for employees above the age of 65 even if those employees

continued to work. Noting the two examples of subterfuge from Betts, the court held that the plaintiffs had not produced any evidence that would bring them within the purview of the examples. 975 F.2d at 429. The court rejected "statements and anecdotal evidence that some officials at Purdue preferred younger faculty," stating that, even if a jury could infer that the cut in contributions to the pension plan was intended to weed out older employees, "the defendants cannot be liable for their motives if their conduct has not evaded the ADEA's prohibitions." Id. With respect to the second Betts example, the court noted that the hike in fringe benefits to younger employees did not violate the ADEA, it was the underlying wage-cut that it camouflaged that did violate the ADEA. Id. In that regard, the plaintiffs had "offered no evidence that the fringe benefit cut in this case is anything more than meets the eye an 0907 age differential in fringe benefits which is permitted under the ADEA." Id. Because there was no extrinsic proof of a violation of another substantive provision outside the scope of the exception, the court declined to find subterfuge even in the face of evidence of discriminatory animus.
The City argues that the Seventh Circuit's language and reasoning in Bell precludes the plaintiffs in this case 898 from relying on evidence of discriminatory motives *898 of individual City officials to establish subterfuge. The
City asks me to follow Bell and hold that, because there is no evidence of a violation of the age limits in § 623(j) (1), there can be no subterfuge. They argue that the mandatory retirement ordinance cannot be a subterfuge as a matter of law, regardless of evidence of intent to discriminate on the basis of age, because § 623(j) makes discriminatory age-based retirement for public safety officials legal. The City argues that an extension of Betts and Bell to § 623(j)(2) means that any intent to discriminate cannot make facially lawful actions unlawful if those actions fall within the exception in § 623(j)(1).
Cases construing § 623(j) have by and large adopted the Betts definition of "subterfuge" as a "scheme, plan, stratagem, or artifice of evasion." See, e.g., Glennon v. Village of South Barrington, No. 00 C 1264, 2000 WL 1230494, at *3 (N.D.Ill. Aug. 25, 2000). See also Knight v. Georgia, 992 F.2d 1541, 1545-46 (11th Cir.1993) (holding that, because previous § 623(f) and current § 623(j) both contain term "subterfuge," it was "appropriate to draw upon" case law interpreting § 623(f), and that the "body of law [construing § 623(f)] should properly be consulted to give meaning to the term `subterfuge' as it appears in § [623](j)"). This case presents the question of the logical limits of the application of judicial interpretations of § 623(f) to § 623(j).
There is some consistency between the City's interpretation here and the Betts/Bell interpretation. For example, the City argued in the reply to its original motion that construing "subterfuge" to mean that any discharge on the basis of age is a subterfuge to evade the purposes of the ADEA because it violates § 623(a)(1) would eviscerate the exception in § 623(j), which says that mandatory retirement on the basis of age is legal. The Supreme Court rejected a similar interpretation of subterfuge in the context of § 623(f). Betts, 492 U.S. at 177, 109 S.Ct. 2854. However, the Supreme Court noted specifically that its interpretation did "not render the `not a subterfuge' proviso a dead letter." Id. at 180, 109 S.Ct. 2854.
However, the City's interpretation, which is essentially an extension of the Betts/Bell interpretation of § 623(f), would render the "not a subterfuge" provision of § 623(j), if not dead, at least moribund. An interpretation that requires a violation of the timing requirements in § 623(j)(1) in order to find that the challenged action is a subterfuge under § 623(j)(2) collapses the two inquiries. This circular reading of "not a subterfuge" in § 623(j)(2) would provide no protection that is not found elsewhere in the statute. By contrast, the exception in § 623(f) related only to fringe benefits, but left undisturbed all of the non-fringe aspects of the employment relationship that are protected by § 623(a), the "ADEA's primary enforcement mechanism." Betts, 492 U.S. at 176, 109 S.Ct. 2854. Section 623(j), however, exempts employers entirely from the protections of § 623(a). That is, if an employee is mandatorily retired, there is nothing left of the employment relationship to protect. Thus the second example of a subterfuge in Bell could never apply to a claim under § 623(j). This interpretation of § 623(j) is circular and self-referential, and would render the "not a subterfuge" requirement empty language, because any mandatory retirement ordinance that complied with the requirements of § 623(j) would, as a matter of law, not be a subterfuge. See Welsh v. Boy Scouts of America, 993 F.2d 1267, 1272 (7th Cir.1993) ("[A] court should not construe a statute in a way that makes words or phrases meaningless, redundant, or superfluous").
899 *899 There is still the retaliation example from Betts, and a mandatory retirement ordinance that was enacted to retaliate against an employee who had complained of age discrimination could be a subterfuge under that example, but if that were the only manner in which a plaintiff could demonstrate subterfuge, then the remedies in

§ 623(d) and § 623(j) would be redundant. See In re Merchants Grain, Inc., 93 F.3d 1347, 1354 (7th Cir.1996) (Courts should "construe statutes in the context of the entire statutory scheme and avoid rendering statutory provisions ambiguous, extraneous, or redundant."). The Supreme Court stated in Betts that its examples were "not exhaustive, but suffice to illustrate the not-insignificant protections provided to older employees by the subterfuge proviso in the § [623](f)(2) exemption." 492 U.S. at 180, 109 S.Ct. 2854. Under a similar interpretation of § 623(j), however, the subterfuge provision provides no protection that is not already provided elsewhere in the ADEA, and would be rendered utterly meaningless.
It was for this reason that I held that evidence of subjective intent to discriminate on the basis of age was relevant to the question of subterfuge under § 623(j). Section 623(j) only applies if a mandatory retirement plan both meets the age requirements in § (j)(1) and is not a subterfuge under § (j)(2). The City's interpretation based on Bell, that facial compliance with (j)(1) precludes me from looking elsewhere for evidence of subterfuge, would eviscerate the requirement that the plan not be a subterfuge. Therefore, I decline to apply the reasoning of Bell under § 623(f) to this case under § 623(j). Bell does not address Pacific Gas, or the reasons that I gave for distinguishing it and considering potential subjective proof of subterfuge, so it is not a basis for reconsideration of the narrow issue presented by the City in its motion. However, I will consider separately the propriety of certifying an interlocutory appeal under 28 U.S.C. § 1292(b).
II. Motion to Certify an Interlocutory Appeal
The denial of a motion to dismiss is not a "final decision" from which an immediate appeal is available under 28 U.S.C. § 1291. Cherry v. University of Wisc. Sys. Bd. of Regents, 265 F.3d 541, 546 (7th Cir.2001). However, § 1292(b) provides for interlocutory appeal of certain otherwise non-appealable orders. There are four statutory requirements: "there must be a question of law, it must be controlling, it must be contestable, and its resolution must promise to speed up the litigation." Ahrenholz v. Board of Trustees of Univ. of Ill., 219 F.3d 674, 675 (7th Cir.2000) (emphases in original). All four criteria must be satisfied before I may certify an order for immediate appeal. Id.
The City asks me to certify the following question: whether allegedly illicit motives on the part of individual legislators and municipal officials for enacting a retirement plan that mandatorily retires police and fire personnel at age 63 and results in their replacement with younger workers can demonstrate subterfuge under section 623(j) of the ADEA. So framed, this is not a controlling question, because it is too early in the lawsuit to determine that this is the only type of evidence of subterfuge that the plaintiffs could discover. I ordered the plaintiffs to come forward with any facts, consistent with Fed. Rule Civ. P. 11, to support their allegations of subterfuge in order to determine whether this case was distinguishable from Kopec v. City of Elmhurst, 193 F.3d 894 (7th Cir.1999). 900 See Minute Order of 3/4/02. I did not convert the motion to one for summary judgment, requiring the *900 plaintiffs to come forward with all of the evidence necessary to make out a claim.
Nonetheless, I am of the opinion that there is a controlling legal question[1]: whether a plaintiff can demonstrate subterfuge under § 623(j)(2) with any kind of evidence if there is no violation of § 623(j)(1). This is a pure question of law because it involves the construction of a statutory provision. See Ahrenholz, 219 F.3d at 676. It is controlling because I held that the plaintiffs could not make out a claim under § 623(j)(1), and both the ADEA claim and the remaining due process claims of the firefighter plaintiffs depend on the plaintiffs' ability to state a claim under § 623(j)(2). See 192 F.Supp.2d at 848. It is contestable because, so far as I can tell, it is a question of first impression. One other court in this district has considered circumstantial evidence of subterfuge and found a genuine issue of fact precluding summary judgment, but it did not discuss whether the mandatory retirement ordinance complied with the requirements of § 623(j)(1). See Glennon v. Village of S. Barrington, No. 00 C 1264, 2002 WL 423681, at *2 (N.D.Ill. Mar. 18, 2002) (Leinenweber, J.). The Betts/Bell interpretation of § 623(f) suggests a different outcome, though I find those cases distinguishable. Finally, an immediate appeal promises to speed up the litigation because it defines the proper scope of information, if any, that the parties may seek in discovery. A contrary decision would be dispositive, and would obviate the need for discovery. Although I DENY the motion for reconsideration, I GRANT the motion to amend the order to certify an immediate appeal under 28 U.S.C. § 1292(b).

[1] 28 U.S.C. § 1292(b) does not require that I accept the City's proposed question for certification. That statute provides that "[w]hen a district judge, in making [an otherwise non-appealable order in a civil case], shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for a difference of opinion ..., [s]he shall so state in writing in such order."
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 Case: 1:01-cv-840 As of: 06/10/2010 04:28 PM CDT 1 of 8
ASHMAN, REOPEN
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 4.0.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:01−cv−00840

Drnek v. Chgo, Cty of Assigned to: Honorable Samuel Der−Yeghiayan Demand: $0 Cause: 29:633 Job Discrimination (Age)
Plaintiff

Date Filed: 02/06/2001 Date Terminated: 01/26/2005 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Donald Drnek

represented by Clinton A. Krislov Krislov &Associates, Ltd. 20 North Wacker Drive Suite 1350 Chicago, IL 60606 (312) 606−0500 Email: clint@krislovlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joan Matlack Illinois Attorney General's Office (100 W) 100 West Randolph Street Chicago, IL 60601 (312) 793−2394 Email: jmatlack@atg.state.il.us ATTORNEY TO BE NOTICED

Michael R. Karnuth Krislov &Associates, Ltd. 20 North Wacker Drive Suite 1350 Chicago, IL 60606 (312) 606−0500 Email: mike@krislovlaw.com ATTORNEY TO BE NOTICED

Ronald L. Futterman Futterman Howard Ashley Watkins &Weltman, P.C. 122 South Michigan Avenue Suite 1850 Chicago, IL 60603 (312) 427−3600 Email: rfutterman@futtermanhoward.com ATTORNEY TO BE NOTICED

William W Thomas Futterman Howard Ashley Watkins &Weltman, P.C. 122 South Michigan Avenue Suite 1850 Chicago, IL 60603 (312) 427−3600 Email: wthomas@futtermanhoward.com ATTORNEY TO BE NOTICED

V. Defendant

Case: 1:01-cv-840 As of: 06/10/2010 04:28 PM CDT 2 of 8

City of Chicago an Illinois Municipal Corporation

represented by Nancy L. Van Allen City of Chicago, Law Department Corporation Counsel 30 North LaSalle, Suite 1020 Chicago, IL 60602 (312) 744−5100 Email: nvanallen@chicagoemploymentlawyer.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Torrick Alan Ward City of Chicago, Law Department Corporation Counsel 30 North LaSalle, Suite 1020 Chicago, IL 60602 (312) 744−5100 Email: lw00413@cityofchicago.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara Susan Smith Chicago Transit Authority 567 West Lake Street Chicago, IL 60661−1498 (312)664−7200 Email: barbara.smith@transitchicago.com ATTORNEY TO BE NOTICED

Mara Stacy Georges City of Chicago Department of law 30 North LaSalle Street Room 900 Chicago, IL 60602 (312) 744−2002 Email: mgeorges@cityofchicago.org ATTORNEY TO BE NOTICED

Patricia M. Carroll−Smit Utreras Law Offices, LLC 4937 W. Foster Ave. Chicago, IL 60630 (773)283−5550 Email: pcarroll−smit@utreraslaw.com ATTORNEY TO BE NOTICED

Date Filed 02/06/2001
02/06/2001 03/19/2001 03/20/2001 03/22/2001

# Docket Text
1 COMPLAINT; jury demand − Civil cover sheet − Appearance(s) of Clinton A. Krislov, Michael R. Karnuth, Ronald L. Futterman and Joan Matlack as attorney(s) for plaintiff Donald Drnek (No summons(es) issued.) (Documents: 1−1 through 1−3) (hp) (Entered: 02/07/2001)
RECEIPT regarding payment of filing fee paid; on 2/6/01 in the amount of $150.00, receipt #1023110. (hp) (Entered: 02/07/2001)
SUMMONS and one copy issued as to defendant. (ac) (Entered: 03/20/2001)
2 RETURN OF SERVICE executed as to defendant on 3/19/01 (yap) (Entered: 03/21/2001)
3 ATTORNEY APPEARANCE for defendant by Nancy L. Van Allen, Patricia M. Carroll−Smit, Barbara Susan Smith, Mara Stacy Georges; Notice. (yp) Modified on 03/23/2001 (Entered: 03/23/2001)

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04/09/2001 04/16/2001 05/08/2001 05/11/2001 05/14/2001 05/18/2001
06/08/2001 06/22/2001 06/28/2001 07/20/2001 07/25/2001 07/27/2001 08/07/2001
08/13/2001 08/13/2001 08/17/2001

4 MOTION by defendant to dismiss plaintiff's complaint ; Memorandum in support (Attachments); Notice. (yp) (Entered: 04/17/2001)
5 MINUTE ORDER of 4/16/01 by Hon. Elaine E. Bucklo : Response to defendant's motion to dismiss plaintiff's complaint [4−1] is due by 4/8/01; and any reply by 5/22/01. Ruling set for 10:00 a.m. on 6/29/01. Mailed notice (yp) Modified on 04/18/2001 (Entered: 04/17/2001)
6 AMENDED COMPLAINT [1−1] by plaintiff; jury demand (Attachments) (rmm) (Entered: 05/15/2001)
8 MOTION by plaintiff for reassignment based on relatedness (Attachments); Notice. (mw) (Entered: 05/23/2001)
7 MINUTE ORDER of 5/14/01 by Hon. Elaine E. Bucklo: Plaintiff having filed an amended complaint, defendant's motion to dismiss plaintiff's complaint is denied [4−1]. Ruling on that motion set for 6/29/01 is also vacated. Mailed notice (rmm) (Entered: 05/15/2001)
9 MINUTE ORDER of 5/18/01 by Hon. Elaine E. Bucklo : Plaintiff's unopposed motion to reassign the case of Minch, et al. Vs. City of Chicago, 01 C 2586 pending before Judge Norgle to my calendar based on relatedness [8−1] is granted. Defendant's proposed motion to dismiss to be filed by 06/08/01; response by 06/29/01; and any replies by 07/13/01. Ruling set for 08/17/01 at 10:00 a.m. Mailed notice (mw) (Entered: 05/23/2001)
10 MOTION by defendant to dismiss amended complaint ; Notice of motion; Memorandum in support (Attachments) (eav) (Entered: 06/13/2001)
11 MOTION by plaintiff for an extension of time for the filing of a response to defendant's motion to dismiss ; Notice of motion (eav) (Entered: 06/29/2001)
12 MINUTE ORDER of 6/28/01 by Hon. Elaine E. Bucklo : Plaintiff's motion for extension of time until 7/20/01 to respond to defendant's motion to dismiss is granted. [11−1] Accordingly, [10−1] reply is extended to 8/10/01. Ruling set for 8/17/01 is reset for 9/14/01 at 10:00 a.m. Mailed notice (eav) (Entered: 06/29/2001)
13 MOTION by plaintiff for a second extension of time for the filing of a response to defendant's motion to dismiss ; Notice. (cem) Modified on 07/26/2001 (Entered: 07/26/2001)
14 MINUTE ORDER of 7/25/01 by Hon. Elaine E. Bucklo : Plaintiff's motion for a second extension of time until 7/30/01 to file response to defendant's motion to dismiss is granted [13−1]. Accordingly, reply is extended to 8/20/01. Mailed notice (cem) (Entered: 07/26/2001)
15 MOTION by plaintiff for a third extension of time for the filing of a response to defendant's motion to dismiss this action ; Notice (jmp) Modified on 08/09/2001 (Entered: 08/08/2001)
16 MINUTE ORDER of 8/7/01 by Hon. Elaine E. Bucklo : Plaintiff's motion for a third extension of time until 08/06/01 for the filing of a response to defendant's motion to dismiss this action is granted [15−1]. Accordingly, reply to dismiss amended complaint [10−1] is extended to 08/27/01. Accordingly ruling set for 9/14/01 is reset for 10:00 a.m. on 10/05/01. Mailed notice (jmp) Modified on 08/09/2001 (Entered: 08/08/2001)
17 UNOPPOSED MOTION by plaintiff for leave to file instanter an oversized response in opposition to defendant's motion to dismiss ; Notice. (mw) (Entered: 08/20/2001)
18 RESPONSE by plaintiff in opposition to defendant's motion to dismiss [10−1]. (mw) (Entered: 08/20/2001)
19 MINUTE ORDER of 8/17/01 by Hon. Elaine E. Bucklo : Plaintiff's unopposed motion for leave to file an oversized response brief [17−1] is granted on condition that plaintiff will not exceed the page limit in any other brief filed in this case. Defendant has until 08/31/01 to file its reply brief. Mailed notice (mw) (Entered: 08/20/2001)

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08/30/2001 09/17/2001
09/21/2001 09/24/2001 09/28/2001 10/04/2001
10/04/2001 10/18/2001 10/26/2001 11/01/2001 02/15/2002
03/04/2002 03/04/2002
03/07/2002 03/08/2002 03/25/2002

20 MOTION by defendant for an extension of time to file its reply memorandum in further support of its motion to dismiss ; Notice. (maf) (Entered: 09/18/2001)
21 MINUTE ORDER of 9/17/01 by Hon. Elaine E. Bucklo : Defendant's motion for extension of time until 9/21/01 to file its reply brief is also granted [20−1]. Ruling set for 10/5/01 is reset for 10/19/01 at 10:00 a.m. Mailed notice (maf) (Entered: 09/18/2001)
22 AGREED MOTION by defendant for an additional extension of time to file its reply memorandum in further support of its motion to dismiss ; Notice. (cem) (Entered: 09/25/2001)
23 MINUTE ORDER of 9/24/01 by Hon. Elaine E. Bucklo : Defendant's agreed motion for extension of time until 9/28/01 to file its reply on motion to dismiss is granted [22−1]. Mailed notice (cem) (Entered: 09/25/2001)
24 MOTION by defendant for leave to file brief in excess of 15 pages , with reply memorandum in support (Attachments); Notice. (mw) (Entered: 10/05/2001)
25 MINUTE ORDER of 10/4/01 by Hon. Elaine E. Bucklo : Defendant's motion for leave to file brief in excess of 15 pages is granted [24−1]. Defendant seeks to file a 34 page brief. It is very clear to me that this brief could have been shorter, and would have been more effective if it had been edited. However, I will grant this moiton and we will try to read through the excess language to get to the point. Mailed notice (mw) (Entered: 10/05/2001)
24 REPLY memorandum by defendant in further support of its motion to dismiss [10−1], with motion (Attachments); Notice. (mw) (Entered: 10/05/2001)
26 MINUTE ORDER of 10/18/01 by Hon. Elaine E. Bucklo: Ruling on the pending motion to dismiss [10−1] set for 10/19/01 is vacated. Ruling will be made by mail. Mailed notice. (fce) (Entered: 10/19/2001)
27 MOTION by plaintiff for leave to file surreply instanter in opposition to defendant's motion to dismiss ; Notice. (lc) (Entered: 11/02/2001)
28 MINUTE ORDER of 11/1/01 by Hon. Elaine E. Bucklo : Plaintiff's motion for leave to file surreply instanter on defendant's motion to dismiss is granted [27−1]. Mailed notice (lc) (Entered: 11/02/2001)
29 MINUTE ORDER of 2/15/02 by Hon. Elaine E. Bucklo : The City of Chicago is ordered to submit, by 5:00 p.m. on 02/20/02, any documentation showing that the firefighters' collective bargaining agreement, attached to its motion, has been adopted into the Chicago Municipal Code. (See reverse of minute order) Telephoned notice. (jmp) (Entered: 02/19/2002)
ORAL MOTION by defendant to dismiss plaintiff's amended complaint . (lc) (Entered: 03/05/2002)
30 MINUTE ORDER of 3/4/02 by Hon. Elaine E. Bucklo : This court will hear oral argument on defendant's motion to dismiss, limited to the question of whether plaintiff, consistent with Rule 11, Fed.R.Civ.P., has any facts that would support the allegations in paragraph 17 of his amended complaint. Oral argument set for 3/8/02 at 1:00p.m. Telephoned notice (lc) (Entered: 03/05/2002)
NOTICE of change of address by Clinton A. Krislov (in 99cv2421). (ntf) (Entered: 03/12/2002)
31 MINUTE ORDER of 3/8/02 by Hon. Elaine E. Bucklo: Oral arguent held. Ruling to be made by mail. No notice (rmm) (Entered: 03/11/2002)
32 MINUTE ORDER of 3/25/02 by Hon. Elaine E. Bucklo : Status hearing set for 10:00 a.m. on 4/26/02. Enter memorandum opinion and order denying defendant's motion to dismiss {10−1} as to the ADEA claims of the plaintiff. The motion is granted as to the due process claims of plaintiff. At the status hearing the court will set discovery and trial schedules in this case. Prior to the status hearing, the parties shall confer and provide the court with a proposed written discovery schedule. Any motion for summary judgment must be filed within 14 days after the date set in the scheduling order for close of discovery. Any extension of discovery will not extend

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04/04/2002 04/04/2002 04/10/2002
04/16/2002 04/24/2002 04/24/2002 04/24/2002 04/25/2002 05/02/2002 05/03/2002 05/22/2002
05/30/2002 06/06/2002 06/06/2002
06/14/2002

the time for filing motions for summary judgment. Entered Memorandum Opinion and Order. Mailed notices by judge's staff. (las) (Entered: 03/26/2002)
33 MOTION by defendant to amend 3/25/02, order to include certification of question for interlocutory appeal ; Notice. (cem) (Entered: 04/11/2002)
34 MOTION by defendant for extension of time to answer plaintiff's complaints ; Notice. (cem) (Entered: 04/11/2002)
35 MINUTE ORDER of 4/10/02 by Hon. Elaine E. Bucklo : Telephone conference held. Defendant's motion for an interlocutory appeal [33−1], which as agreed will be treated as a motion to reconsider in light of a case relied upon in the motion and not previously cited to the court, will be taken under advisement. Plaintiffs are given until 4/24/02 to respond. Defendant will have until 5/2/02 to reply. Ruling will be on 5/10/02 at 9:30 a.m. Defendant's motion for extension of time to answer plaintiff's complaints is granted [34−1]. Mailed notice (cem) (Entered: 04/11/2002)
38 MOTION by defendant to stay discovery pending a ruling on defendant's motion under 28 U.S.C. 1292 (Attachments); Notice. (mw) (Entered: 04/25/2002)
36 ATTORNEY APPEARANCE for plaintiff by William W Thomas (ntf) (Entered: 04/25/2002)
37 RESPONSE by plaintiff in opposition to defendant's motion to dismiss [0−1]; Notice. (ntf) (Entered: 04/25/2002)
39 MINUTE ORDER of 4/24/02 by Hon. Elaine E. Bucklo : Defendant's motion to stay discovery pending a ruling on defendant's motion under 28 U.S.C. 1292 [38−1] is granted. Mailed notice (mw) (Entered: 04/25/2002)
SCHEDULE set on 4/25/02 by Hon. Elaine E. Bucklo : Status hearing reset to 10:00 5/31/02 . Mailed notice (mpj) (Entered: 04/25/2002)
40 REPLY by defendant in support of motion to amend 3/25/02, order to include certification for interlocutory appeal [33−1] (Attachment); Notice. (hmb) (Entered: 05/03/2002)
41 TRANSCRIPT of proceedings for the following date(s): 03/08/02 Before Honorable Elaine E. Bucklo. (ntf) (Entered: 05/06/2002)
42 MINUTE ORDER of 5/22/02 by Hon. Elaine E. Bucklo: Entered Memorandum Opinion and Order denying defendant's motion to reconsider and granting its motion to amend the order to certify an immediate appeal under 28 U.S.C. Section 1292(b) [33−1]. Notice mailed by judge's staff. (dmkf) Modified on 05/24/2002 (Entered: 05/24/2002)
SCHEDULE set on 5/30/02 by Hon. Elaine E. Bucklo : Status hearing reset to 10:15 6/6/02 . Mailed notice (mpj) (Entered: 05/30/2002)
43 MOTION by plaintiff for reconsideration of this court's 05/22/02 order granting certification of a question for interlocutory review ; Notice. (fce) (Entered: 06/07/2002)
44 MINUTE ORDER of 6/6/02 by Hon. Elaine E. Bucklo : Status hearing held. Stay of discovery on plaintiff's due process claim is lifted. Response to plaintiff's motion for reconsideration of this court's 05/22/02 order granting certification of a question for interlocutory review [43−1] is due by 6/21/02; and any reply by 6/28/02. Ruling set for 7/12/02 at 10:00 a.m. [43−1]. Mailed notice (yap) (Entered: 06/10/2002)
45 CERTIFIED copy of Order dated 06/11/02 from the 7th Circuit. It is ordered that the petitions for leave to appeal are granted. Petitioner shall pay the required appellate fees to the clerk of the district court within ten days from the entry of this order pursuant to Federal Rule of Appellate Procedure 5(d)(1). Once the district court notifies this court that the fees have been paid, the appeals will be entered on this court's general docket. It is further ordered that the resulting appeals will be consolidated for the purposes of briefing and disposition (02−8012 &02−8013). (ntf) (Entered: 06/17/2002)

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06/17/2002
06/20/2002 06/20/2002 06/21/2002 06/27/2002
07/03/2002 07/15/2002 08/12/2002 08/15/2002 08/23/2002 12/13/2002
08/05/2003 09/04/2003 09/19/2003

46 NOTICE OF APPEAL by defendant Chgo, Cty pursuant to USCA 6/11/02 order from order Entered Memorandum Opinion and Order denying defendant's motion to reconsider and granting its motion to amend the order to certify an immediate appeal under 28 U.S.C. Section 1292(b) [33−1]. [42−1] motion minute order [42−2] Memorandum Opinion and Order [32−2] motion minute order [32−3] ($105.00 PAID) (Attachments) (mak) (Entered: 06/20/2002)
TRANSMITTED to the 7th Circuit the short record on appeal [46−1] . Mailed notice to all counsel. (mak) (Entered: 06/20/2002)
48 SEVENTH CIRCUIT transcript information sheet by defendant (ntf) (Entered: 06/21/2002)
47 ACKNOWLEDGEMENT of receipt of short record on appeal [46−1] USCA 02−2588 (ntf) (Entered: 06/21/2002)
49 MINUTE ORDER of 6/27/02 by Hon. Elaine E. Bucklo : Defendant's unopposed motion for an extension of time until 07/09/02 to respond to plaintiffs' class certification motions and their motion to reconsider the court's order certifying a question to the court of appeals for interlocutory appeal is granted. Accordingly, replies are extended to 07/23/02. Rulings set for 7/12/02 and 8/9/2 are reset for 10:00 a..m. on 09/13/02. Mailed notice (jmp) (Entered: 06/28/2002)
TRANSMITTED to the 7th Circuit the long record on appeal no. 02−2588 consisting of one volume of pleadings and one volume of transcripts and one volume loose pleadings under separate certificate on appeal [46−1] Mailed notice to all counsel. (mak) (Entered: 08/21/2002)
50 MINUTE ORDER of 7/15/02 by Hon. Elaine E. Bucklo : Plaintiff's motion for reconsideration of this court's 05/22/02 order granting certification of a question for interlocutory review is withdrawn [43−1]. Mailed notice (ntf) (Entered: 07/16/2002)
51 TRANSCRIPT of proceedings for the following date(s): 05/18/01,04/10/02,06/06/02 appeal [46−1] Before Honorable Elaine E. Bucklo (ntf) (Entered: 08/13/2002)
52 MINUTE ORDER of 8/15/02 by Hon. Elaine E. Bucklo: Plaintiff's motion to amend briefing schedule on class certification is granted as follows: Plaintiffs have until 09/30/02 to file their reply brief on their second amended motion for class certification. Ruling set for 09/13/02 is reset for 10/11/02 at 10:00 a.m. Mailed notice (ntf) (Entered: 08/20/2002)
TRANSMITTED to the 7th Circuit supplement to appeal no. 02−2588 consisting of three volumes of transcripts of proceedings (Doc #'s 51−1 through 51−3) with certified copy of docket entries. Mailed notice to all counsel. (mak) Modified on 08/23/2002 (Entered: 08/23/2002)
53 MINUTE ORDER of 12/13/02 by Hon. Elaine E. Bucklo : Plaintiffs' motion for clas certification (51−1) is granted. The motion for initial notice of the opt−in class so certified is also granted. Plaintiffs' motion for leave to file instanter amended reply on their motion for class certification is denied as moot. Defendant's motion for a protective order is granted in part. Defendant shall answer the requests for written discovery attached to defendant's motion . Oral discovery is stayed pending the Seventh Circuit's ruling on the current appeal. Plaintiff's motion to compel is denied as moot. Ruling set for 01/10/03 is therefore vacated. (See reverse of minute order.) No notice (lc) Modified on 12/16/2002 (Entered: 12/16/2002)
EXECUTIVE committee order of 08/05/03 This case is reassigned to the Hon. Samuel Der−Yeghiayan Mailed notice (nlf) (Entered: 08/07/2003)
SCHEDULE set on 9/4/03 by Hon. Samuel Der−Yeghiayan : Status hearing set for 09/22/03 at 9:00 a.m. before Judge Samuel Der−Yeghiayan in Courtroom 1719. The parties are directed to submit a joint status report as set out on the reverse of this order. Mailed notice (mw) (Entered: 09/04/2003)
54 JOINT STATUS REPORT by parties; Notice. (ntf) (Entered: 09/22/2003)

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09/22/2003 11/14/2003 12/16/2003
01/21/2004 03/29/2004
04/12/2004 04/16/2004 04/20/2004
05/13/2004
05/13/2004 05/13/2004 05/13/2004 08/12/2004 10/12/2004

SCHEDULE set on 9/22/03 by Hon. Samuel Der−Yeghiayan : Status hearing held and continued to 11/17/03 at 9:00 a.m. Plaintiffs' motion for clarification on the previous Judge's order regarding class certification is taken under advisement. Mailed notice (mw) (Entered: 09/22/2003)
SCHEDULE set on 11/14/03 by Hon. Samuel Der−Yeghiayan : At the parties' request, the status hearing set for 11/17/03 is stricken and reset to 12/17/03 at 9:00 a.m. Mailed notice (mw) (Entered: 11/14/2003)
SCHEDULE set on 12/16/03 by Hon. Samuel Der−Yeghiayan : Counsel for the plaintiffs advise this Court's Courtroom Deputy that the 7th Circuit has not made any rulings to date. Therefore at the parties' request the status hearing set for 12/17/03 is stricken and reset to 1/21/04 at 9:00 a.m Telephoned notice (mw) (Entered: 12/16/2003)
SCHEDULE set on 1/21/04 by Hon. Samuel Der−Yeghiayan : Status hearing held and cotninued to 03/29/04 at 9:00 a.m. Mailed notice (mw) (Entered: 01/21/2004)
55 MINUTE ORDER of 3/29/04 by Hon. Samuel Der−Yeghiayan : Status hearing held. By agreement of the parties, there are no pending motions. Counsel for the parties advised the Court that oral arguments had concluded on 02/28/03 in the 7th Circuit Court of Appeals. The case is closed without prejudice to either party moving for reinstatement once the 7th Circuit Court of Appeals makes a ruling, and the case will be reinstated by this Court terminating case . Mailed notice (ntf) (Entered: 03/29/2004)
57 MOTION by plaintiff for reconsideration , and modification of the Court's 03/29/04 sua sponte order of dismissal ; Notice (ntf) (Entered: 04/20/2004)
56 ATTORNEY APPEARANCE for defendant by Torrick Alan Ward (ntf) (Entered: 04/19/2004)
58 MINUTE ORDER of 4/20/04 by Hon. Samuel Der−Yeghiayan : Status hearing set for 5/13/04 at 9:00 a.m to set deadlines. Plaintiff's motion to reconsider [57−1], and modify the Court's 03/29/04 sua sponte order of dismissal [57−2] is granted. Case reinstated Case reopened . The 7th Circuit Court of Appeals having ruled on the pending appeal, counsel for the plaintiffs is to be prepared at the next status hearing to advise the Court on how and if they plan to pursue further action in the 7th Circuit Court of Appeals relating to their recent ruling. Mailed notice (ntf) (Entered: 04/20/2004)
59 MINUTE ORDER of 5/13/04 by Hon. Samuel Der−Yeghiayan : Status hearing held and continued to 10/7/04 at 9:00 a.m. The 7th Circuit having issued its mandate, the plaintiffs' ADEA claims are hereby dismissed. The defendant is given leave to re−file its motion to dismiss addressing the firefighters' remaining due process claim on or before 07/19/04. The plaintiffs' response is to be filed by 08/23/04. Defendant's reply in support is to be filed by 09/07/04. Mailed notice (ntf) (Entered: 05/14/2004)
60 LETTER from the 7th Circuit returning the record on appeal no. 02−2588 consisting of: Three volumes of pleadings, three loose pleadings and six volumes of trancripts. (cem) (Entered: 05/14/2004)
61 OPINION from the 7th Circuit: Argued 02/28/03; Decided 04/09/04. ( 02−2588) (cem) (Entered: 05/14/2004)
62 CERTIFIED COPY of order from the 7th Circuit: These appeals are remanded, in accordance with the decision of this court entered on this date. Each party shall bear their own costs [46−1]. (02−2588) (cem) (Entered: 05/14/2004)
63 MINUTE ORDER of 8/12/04 by Hon. Samuel Der−Yeghiayan : Status hearing set for 10/07/2004 is reset to 9:00 a.m. 11/30/04. Mailed notice (jmp) (Entered: 08/13/2004)
64 TRANSCRIPT of proceedings for the following date(s): August 15, 2002 Before Honorable Elaine E. Bucklo. (One Volume). (gl) (Entered: 10/13/2004)

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11/30/2004 01/26/2005

65 MINUTE ORDER of 11/30/04 by Hon. Samuel Der−Yeghiayan : Status hearing held and continued to 1/26/05 at 9:00 a.m. Mailed notice (ntf) (Entered: 12/01/2004)
66 MINUTE entry before Judge Samuel Der−Yeghiayan : Status hearing held on 1/26/2005. No claims are left in this case based upon the decision in the Minch case. Case dismissed. (tlp, ) (Entered: 01/28/2005)

 
 Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307759...

2002 WL 32307759 (C.A.7) (Appellate Brief) United States Court of Appeals, Seventh Circuit.
Donald DRNEK, James D. Minch, Richard A. Graf and Richard Cosentino, Plaintiffs-Appellees, v.
CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellant.
Nos. 02-2587 & 02-2588 (consol.). 2002.
Appeal Pursuant to 28 U.S.C. §1292(b) from the Northern District of Illinois, Eastern Division Nos. 01 C 0840 & 01 C 2586 The Honorable Elaine E. Bucklo, Judge Presiding.

Response Brief of Plaintiffs-Appellees

Clinton A. Krislov, Michael R. Karnuth, Krislov & Associates, LTD., Civic Opera Building, 20 North Wacker Drive, Suite 1350, Chicago, IL 60606, (312) 606-0500.

Ronald L. Futterman, Joan Matlack, William W. Thomas, Futterman & Howard, Chtd., 122 S. Michigan Ave., Suite 1850, Chicago, IL 60603, (312) 427-3600, Attorneys for Plaintiffs-Appellees.
*i TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................................................................................

iii

JURISDICTIONAL STATEMENT .....................................................................................................................................

1

ISSUE PRESENTED FOR REVIEW ..................................................................................................................................

3

STATEMENT OF THE CASE ..............................................................................................................................................

4

STATEMENT OF FACTS ......................................................................................................................................................

6

I. THE AGE DISCRIMINATION IN EMPLOYMENT ACT ....................................................................................

6

II. THE 29 U.S.C. §623(j) EXEMPTION ..........................................................................................................................

6

III. HISTORY OF THE EXEMPTION ...............................................................................................................................

7

IV. CHICAGO’S MANDATORY RETIREMENT ORDINANCE ..........................................................................

11

V. PLAINTIFFS’ COMPLAINTS ........................................................................................................................................

12

VI. THE CITY’S MOTION TO DISMISS ........................................................................................................................

12

VII. THE ORDER DENYING THE CITY’S MOTION TO DISMISS ..................................................................

14

VIII. THE CERTIFICATION ORDER ...............................................................................................................................

15

1

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307759...

SUMMARY OF ARGUMENT .............................................................................................................................................

16

ARGUMENT ................................................................................................................................................................................

18

I. INTRODUCTION ..................................................................................................................................................................

18

II. THE EXEMPTION SET FORTH AT 29 U.S.C. §623(j) DOES NOT GIVE MUNICIPAL

19

EMPLOYERS CARTE BLANCHE TO MANDATORILY RETIRE PUBLIC SAFETY EMPLOYEES.

.............................................................................................................................................................................................................

III. THE DISTRICT COURT PROPERLY FOUND THAT PLAINTIFFS ALLEGED A VIABLE

24

THEORY OF LIABILITY UNDER THE ADEA ...........................................................................................................

A. Plaintiffs’ Subterfuge Claims Are Valid and Sufficiently Pled .............................................................................

24

B. The City Misinterprets “Subterfuge” ..............................................................................................................................

25

*ii 1. Nothing in the Subterfuge Prong Requires “Substantive Allegations” .........................................................

27

2. Even Assuming, Arguendo, That The “Substantive Allegation” Argument Is Valid, Plaintiffs Have

28

Met This Burden ..........................................................................................................................................................................

C. Plaintiffs Have Not Solely Alleged That the MRO Replaces Older Workers with Younger Workers. ..

28

IV. THE CITY BEARS THE BURDEN OF PROVING THAT IT IS ENTITLED TO THE

29

EXEMPTION UNDER 623(j) ................................................................................................................................................

A. The City Bears the Burden of Proof That it Did Not Engage in Subterfuge ....................................................

29

B. While the Exemption Relieves the City from Making a BFOQ Showing, it Does Not Immunize the

31

MRO from Scrutiny ....................................................................................................................................................................

V. UNDER BASIC PRINCIPLES OF STATUTORY CONSTRUCTION, THE CERTIFIED

33

QUESTION MUST BE ANSWERED IN THE AFFIRMATIVE .............................................................................

VI. AS A MATTER OF LAW, THE CITY CANNOT QUALIFY FOR THE 623(j) “SAFE HARBOR”

37

WITHOUT SATISFYING BOTH OF ITS DISTINCT REQUIREMENTS. ........................................................

VII. THE CITY’S ATTEMPTS TO CURTAIL INQUIRY INTO LEGISLATIVE MOTIVATION

39

ARE MISPLACED ....................................................................................................................................................................

VIII. CONCLUSION .................................................................................................................................................................

45

CERTIFICATE OF COMPLIANCE ...................................................................................................................................

46

*iii TABLE OF AUTHORITIES

CASES

A.H. Phillips, Inc. v. Walling, 324 U.S. 490 (1945) .........................

36

2

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307759...
Albiero v. Kankakee, 122 F.3d 417 (7th Cir. 1997)..........................
Anderson v. Montgomery Ward & Co., Inc., 852 F.2d 1008 (7th Cir. 1988) ...............................................................................................
Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).......................................................................
Bell v. Purdue University, 975 F.2d 422 (7th Cir. 1992)................
Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994) .......................................................
Church v. Huntsville, 30 F.3d 1332 (11th Cir. 1994) ......................
Conley v. Gibson, 355 U.S. 41 (1957) ..................................................
EEOC v. Home Insurance Co., 672 F.2d 252 (2nd Cir. 1982) .....
EEOC v. City Colleges of Chicago, 944 F.2d 339 (7th Cir. 1991) .................................................................................................................
EEOC v. Westinghouse Elect. Corp., 925 F.2d 619 (3d Cir. 1991) .................................................................................................................
EEOC v. Wyoming, 460 U.S. 226 (1983).............................................
Forseth v. Village of Sussex, 199 F.3d 363 (7th Cir. 2000)...........
Fraternal Order of Police v. Hobart, 864 F.2d 551 (7th Cir. 1988) .................................................................................................................
Futrell v. J.I. Case, 38 F.3d 342 (7th Cir. 1994) ...............................
Gately v. Massachusetts, 1998 WL 518179 (D. Mass. 1998).......
Glennon v. Village of South Barrington, 2000 WL 1230494 (N.D. Ill. 2000)..............................................................................................
*ivGrossbaum v. Indianapolis-Marion County Bldg. Authority, 100 F.3d 1287 (7th Cir. 1996).............................................
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987).............................................................................
Hohn v. United States, 524 U.S. 236 (1998).......................................
Huels v. Exxon Co. USA, Inc., 121 F.3d 1047 (7th Cir. 1997) .....
Hunt v. Markham Ill., 219 F.3d 649 (7th Cir. 2000) ........................
Karlen v. City Colleges of Chicago, 837 F.2d 314 (7th Cir. 3

24, 25 36
43
25, 26, 38 26
42 24 38 41
29
7 23 43
28 8, 21-22
22, 37
43
19
34 41 41, 42 30, 32, 38, 41

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307759...
1988) .................................................................................................................
Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th Cir. 1978) ........................................................................................................
Knight v. Georgia, 992 F.2d 1541 (11th Cir. 1993) .........................
Kopec v. City of Elmhurst, 193 F.3d 894 (7th Cir. 1999)...............
Lorance v. AT&T Technologies, Inc., 490 U.S. 900 (1989) ..........
Martinez v. Hooper, 148 F.3d 856 (7th Cir. 1998)...........................
Mason v. El Portal, 240 F.3d 1337 (11th Cir. 2001) .......................
Matter of Lifschultz Fast Freight Corp., 63 F.3d 621 (7th Cir. 1995) .................................................................................................................
Matthews v. Columbia County, 294 F.3d 1294 (11th Cir. 2002) .
Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979).........................
Oxman v. WLS TV, 846 F.2d 448 (7th Cir. 1988) .............................
Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm’n., 461 U.S. 190 (1983) ....
Piedmont & Northern Railway Co. v. Interstate Commerce Commission, 286 U.S. 299 (1932)..........................................................
Pitasi v. Gartner Group, Inc., 184 F.3d 709 (7th Cir. 1999) ........
*vPublic Employees Retirement System of Ohio v. Betts, 492 U.S. 158 (1989).............................................................................................
Quinones v. City of Evanston, 829 F. Supp. 237 (N.D. Ill. 1993) .................................................................................................................
Resident Advisory Bd. v. Rizzo, 564 F.2d 126 (3rd Cir. 1977) .....
Sexton v. Beatrice Foods Co., 630 F.2d 478 (7th Cir. 1980) ........
Solon v. Gary Community Sch. Corp., 180 F.3d 844 (7th Cir. 1999) .................................................................................................................
Stuart v. Unum Life Insurance Co. of America, 217 F.3d 1145 (9th Cir. 1999) ...............................................................................................
Swierkiewicz v. Sorema, 534 U.S. 506 (2002) ...................................
Szumny v. American Gen. Fin. Inc., 246 F.3d 1065 (7th Cir. 2001) .................................................................................................................
4

36
21, 22, 26 21, 22, 37
41 25 42 34
42 34, 36
44 40, 42
34
41 25, 26, 27, 30, 38
21, 22, 23
43 36 26
37
24, 29 24

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Wallace v. Jaffree, 472 U.S. 38 (1985).................................................
Washington v. Davis, 426 U.S. 229 (1976) .........................................
Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985) ..............
STATUTES AND ORDINANCES
28 U.S.C. §1292(b)(2000).........................................................................
28 U.S.C. §1331 (2000) .............................................................................
28 U.S.C. §1367 (2000) .............................................................................
Age Discrimination in Employment Act Amendments of 1986, Pub. L. No. 99-592, 100 Stat. 3342 (1986) ............................
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §621et seq. (1994 & Supp. V 1999)(“ADEA”) ............
Age Discrimination in Employment Act Amendments of 1974, Pub. L. No. 93-259, §28(a)(2), 88 Stat. 55, 74 (1974) .......
*vi Age Discrimination in Employment Act Amendments of 1996, Pub. L. No. 104-208, §1, 110 Stat. 3009-23 to 3009-25 (1996) (codified at 29 U.S.C. §623(j)) .................................................
Chicago Municipal Code §25-37 (1984) .............................................
Chicago Municipal Code §2-152-140 (rev. 2000) ...........................
Older Workers Benefit Protection Act, Pub.L. No. 101-433, 104 Stat. 978 (1990) (codified as amended at 29 U.S.C. §§ 626, 630 (2000) .............................................................................................
LEGISLATIVE HISTORY
132 Cong. Rec. 32658 (1986) .................................................................
141 Cong. Rec. H3822-01 (March 28, 1995) (comments of Congressman Fawell) ................................................................................
142 Cong. Rec. S11922-01 (September 30, 1996) (comments of Senator Moseley-Braun) ......................................................................
House Committee on Education and Labor, Age Discrimination Act of 1986, H.Rep. No. 756, 99th Cong., 2nd Sess. 16-17 (1986), reprinted in 1986 U.S.C.C.A.N. 5628, 5640-42 ...........................................................................................................
Senate Report No. 101-263, 1990 U.S.C.C.A.N. 1509, 1510, 5

43 43 27
2, 15 1 1
7, 8, 11 passim
7 passim
11 1, 4, 11, 43, 44
26, 29
37 21 32 21
29, 30

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1535 .................................................................................................................

SECONDARY SOURCES

Landy, F.J., et al., Alternatives to Chronological Age in

8

Determining Standards of Suitability for Public Safety Jobs,

Executive Summary, Pennsylvania State University, 17-18

(1992) ..............................................................................................................

*1 JURISDICTIONAL STATEMENT
Defendant-appellant City of Chicago’s (“the City” or “defendant”) jurisdictional statement is neither complete nor correct, as it suggests that the issue originally proposed by defendant for interlocutor certification was the issue actually certified by the Distriet Court. That is not the case. The Distriet Court rejected the City’s proposal and instead, sua sponte, certified its own question for interlocutor review.
Plaintiffs-appellees, Donald Dmek and Richard Cosentino (two former Chicago police officers) and James Minch and Richard Graf (two former Chicago firefighters) (“plaintiffs”), were retired under the City’s mandatory retirement ordinance, Chicago Municipal Code §2-152-140 (rev. 2000) (“MRO”). In two separate complaints, plaintiffs sued the City, alleging that the MRO violates the Age Diserimination in Employtnent Act of 1967, as arnended, 29 U. S.C. § 621et seq. (1994 & Supp. V 1999) (“ADEA”), and their due process rights under the federal and Illinois Constitutions. Minch R. 1; Dmek R. 6. The Distriet Court (Bucklo, J.) considered the cases together because they arose from substantiallythe same set of facts and raised the same claims. A3, A43; Dmek R. 9. The District Court had jurisdiction over the federal cairns under 28 U.S.C. §1331 (2000) and supplemental jurisdiction over the state law cairns under 28 U. S.C. § 1367 (2000).
On June 8, 200 1, the City moved to dismiss the complaints. Minch R. 7; Dmek R. 10. On March 25, 2002, the Distriet Court denied that motion as to plaintiffs’ ADEA claims.1 A6-A27.2 On April 4, 2002, the City moved for an order amending the March 25, 2002 order to include *2 certification of the ADEA cairns for interlocutor appeal pursuant to 28 U.S.C. § 1292(b) (2000). Dmek R. 33.
The Distriet Court also treated the City’s motion as a motion for reconsideration. Dmek R. 35. The Distriet Court denied the City’s motion and rejected the issue proffered by the City for interlocutor review.3 A52-A55. However, the Distriet Court sua sponte certified its own question for interlocutor review: “whether a plaintiff can demonstrate subterfuge under §623(j)(2) with any kind of evidence if there is no violation of §623(j)(1).” A54 (emphasis in original). Defendant did not dispute the Distriet Court’s modification of the proposed question.
The City petitioned this Court for leave to appeal on May 31, 2002. Minch R. 56, Dmek R. 46. On June 11, 2002, this Court granted the City’s petition, pursuant to 28 U.S.C. § 1292(b), and consolidated the cases for disposition and briefing.
*3 ISSUE PRESENTED FOR REVIEW
The issue certified for interlocutor review is “whether a plaintiff can demonstrate subterfuge under [section] 623(j)(2) [of the ADEA] with any kind of evidence if there is no violation of [section] 623(j)(1).” A54 (emphasis in original).
*4 STATEMENT OF THE CASE
On May 17, 2000, the Chicago City Council passed an ordinance, introduced by Mayor Richard M. Daley, establishing a mandatory retirement age of 63 for Chicago police officers and unifonned fire department personnel. The ordinance
6

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(“MRO”) becarne effective on December 3 1, 2000. Plaintiffs for this consolidated appeal, two firefighters and two police officers, challenge their mandatory retirement and the mandatory retirement of other similarly-situated Chicago public safety employees undertaken pursuant to the MRO.
Plaintiffs have alleged that defendant, in passing and implementing the MRO, violated the ADEA in at least two ways: (1) it violated the substantive prohibitions against age discrimination listed in 29 U. S.C. § 623 (a), and (2) it failed to meet the “safe harbor” requirements for municipalities wishing to implement mandatory retirement for public safety employees because the MRO was passed and implemented in a manner that constituted an illegal “subterfuge” to evade the ADEA’s purposes. 29 U.S.C. §623(j)(2). Minch R. 1; Drnek R. 6.4
On March 25, 2002, the Distriet Court denied dismissal of plaintiffs’ ADEA cairns and of the firefighter plaintiffs’ due process claims but grated dismissal of the police plaintiffs’ due process claims. A6-A27.
The City subsequently moved for interlocutor review of the Distriet Court’s decision on plaintiffs’ ADEA claims. Dmek R. 33. On May 22, 2002, the Distriet Court rejected the City’s proposed interlocutor question, electing instead sua sponte to certify its own question. A54. On *5 May 31, 2002 the Citypetitioned this Court forpermission to appeal. This Court granted the petition on June 11, 2002, and consolidated the cases for briefing and disposition.
*6 STATEMENT OF FACTS
I. THE AGE DISCRIMINATION IN EMPLOYMENT ACT The ADEA prohibits discrimination on the basis of age in employtnent. The purposes of the ADEA are to “promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment.” 29 U.S.C. §621(b). Section 623(a) of the ADEA provides that it is unlawful for any employer: (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or,
(3) to reduce the wage rate of any employee in order to comply with this chapter.
II. THE 29 U.S.C. §623(j) EXEMPTION The “exemption” at issue in the instant case states: (j) Employment as firefighter or law enforcement officer
lt 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, the employer has complied with section 3(d)(2) of the Age Diserimination in Employment Amendments of 1996 if the individual was
7

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discharged after the date described in such section, and the individual has attained-
(A) the age of hiring or retirement, respectively, in effect under applicable State or local law on March 3, 1983; or
*7 (B)
(I) if the individual was not hired, the age of hiring in effect on the date of such failure or refusal to hire under applicable State or local law enacted after September 30, 1996; or
(ii) if applicable State or local law was enacted after September 30, 1996, and the individual was discharged, the higher of-
(1) the age of retirement in effect on the date of such discharge under such law; and
(II) age 55; and
(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.
29 U.S.C. §623(j).
III. HISTORY OF THE EXEMPTION
The ADEA, when originally passed in 1967, excluded state and local governments from its purview. Pub. L. No. 90-102, 81 Stat. 602 (1967). In 1974, Congress extended the ADEA to cover state and local governments. Pub. L. No. 93-259, §28(a)(2), 88 Stat. 55, 74 (1974). With the extension of the ADEA to states and municipalities, those entities could enforce mandatory retirement laws for police and fire personnel. Id. However, like other employers, they had to demonstrate that age was a bona fide occupational qualification. Id.
In 1983, the Suprerne Court confirmed that the ADEA applies to state and municipal employers. EEOC v. Wyornin, 460 U.S. 226, 243 (1983). Subsequently, in 1986, Congress amended the ADEA to create an exemption to allow, under limited circumstances, states, and municipalities to mandatorily retire firefighters and police officers. Within the exemption, Congress included a “subterfuge” provision nearly identical to the current law.5Pub. L. No. 99-592, 100 Stat. *8 3342 (1986). The 1986 exemption included a “sunset” provision that required the exemption to end on December 31, 1993. 29 U.S.C. §623(1) (1986), later recodified as §623(j)(1990).
The 1986 amendments included a directive that the Sceretary of Labor and the Equal Employment Opportunity Commission (“EEOC”) complete a study to determine whether physical and mental fitness tests were valid measurements of the ability of police and firefighters to perform theirjob requirements. 100 Stat. 3342, 3343. The study, when completed in 1992, recommended that Congress eliminate the “safe harbor” permitting mandatory retirement for public safety officers, as there was no scientific basis to equate age and fitness.6 The 1986 amendments required that the EEOC, within 5 ycars of the enactment of the 1986 ADEA amendments, propose “guidelines for the administration and use of physical and mental fitness tests to measure the ability and competency of police officers and firefighters to perform the requirements of their jobs.” Id.
*9 In 1996, Congress reinstated the exemption, making its application retroactive to its 1993 lapse. Pub. L. No. 104-208, §1, 110 Stat. 3009-23 to 3009-25 (1996) (codified at 29 U.S.C. §623(j)). The 1996 exemption again included an express “subterfuge” prong, excepting from the exemption those employment actions which were taken as a “subterfuge to evade the purposes of [the ADEA].” 29 U.S.C. §623(j)(2).
The 1996 exemption differed in a number of ways from its 1986 counterpart. The new exemption had no termination date. Furthermore, where the 1986 Amendments required that studies be conducted and guidelines be developed for fitness testing,
8

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the 1996 Amendments required that the Sceretary of the Department of Health and Human Services (“HHS”) actually promulgate regulations “identifying valid, nondiseriminatory job performance tests” and mandated their use for any state or municipality seeking to implement mandatory retirement. See 110 Stat. at 3009-24.7*10 Included in the statute’s language is the requirement that an employer “[comply] with section 3(d)(2)8 of the [ADEA] Amendments of 1996 if the individual was discharged after the date described in such section ...... Despite Congress’ September 30, 2000 deadline for testing guidelines to be developed, as yet no regulations have been issued.
*11 IV. CHICAGO’S MANDATORY RETIREMENT ORDINANCE
The City has had mandatory retirement laws in place for public safety employees on and off since 1939. Appellant’s brief (“Br.”) at 9. In 1984, the mandatory retirement age for Chicago police and fire personnel was set at 70 when the ADEA became applicable to states and municipalities. Chicago Municipal Code §25-37 (1984).
When the 1986 ADEA exemption expired in 1993, the City’s mandatory retirement ordinance ended as well. On September 30, 1996, the 1996 “safe harbor” provision of the ADEA was enacted. Almost four years later, in May 2000, the City passed and implemented the MRO. Chicago Municipal Code 2-152-140.9 No mandatory retirement ordinance existed in Chicago between December 31, 1993 and May 17, 2000, when the current MRO was enacted.
FN
(d) All persons to whom this ordinance applies shall be retired upon attainment of age 63. Any person to whom this ordinance applies whose age is 63 or more on December 31, 2000 shall be retired upon that date.
Chicago Municipal Code §2-152-140 (2000).
*12 Following enactment of the MRO, plaintiffs were involuntarily retired by the City because they met or exceeded the Ordinance’s mandatory retirement age. Additional individuals have been and will continue to be involuntarily retired pursuant to the MRO.
V. PLAINTIFFS’ COMPLAINTS
On February 6, 2002, Plaintiff Dmek filed his original complaint (Dmek R. 1), which he arnended on May 6, 200 I. Dmek R. 6. On April 12, 2001, plaintiffs Minch, Cosentino, and Graf filed a class action complaint. Minch R. I. Both complaints, allege that: (1) the MRO violated the ADEA’s substantive provisions by discriminating against plaintiffs in “compensation, terms, conditions, or privileges of employment” and depriving them “of employment opportunities” adversely affecting their “status as an employee” because of their age (Minch R. 1 at 11-12; Drnek R. 6 at 5); (2) the MRO violated §623(j) of the ADEA because it is a subterfuge to evade the ADEA’s purposes (Minch R. 1 at 8-9; Dmek R. 6 at 5); (3) the MRO was a subterfuge, because among other reasons, it was passed for the purpose of hiring and promoting younger police officers and firefighters (Minch R. 1 at 9; Dmek R. 6 at 5); (4) the MRO violated the ADEA because the City provided no fitness tests to allow plaintiffs to demonstrate continued ability to perform their jobs. (Minch R. 1 at 10-11; Drnek R. 6 at 6-7); and, (5) the MRO violated plaintiffs’ due process rights under the Illinois and federal Constitutions (Minch R. 1 at 12-13; Drnek R. 6 at 8-9).
VI. THE CITY’S MOTION TO DISMISS
9

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On June 8, 2001, the City moved to dismiss plaintiffs’ complaints, stating that: (1) plaintiffs could not state a claim that the City had failed to provide tests to assess continuing fitness for duty when the federal agency charged with developing such tests had failed to do so (Minch R. 7 at 6-7; Drnek R. 10 at 6-7); (2) the “reinstitution” of the MRO could not be a subterfuge of the ADEA *13 because the age criterion predated the ADEA (Minch R. 7 at 8-12; Dmek R. 10 at 8-12); (3) no inquiry into legislative motivation was required or permissible (Minch R. 7 at 11-12; Dmek R. 10 at 11-12); and, (4) plaintiffs had no property interest in their jobs which would implicate their due process rights under the Illinois and federal constitutions. (Minch R. 7 at 12-14; Drnek R. 10 at 12-14).
At a hearing scheduled sua sponte by the District Court, plaintiffs were directed to provide additional factual information to support their claim that the MRO was enacted as a subterfuge to evade the ADEA’s purposes. Minch R. 33; Dmek R. 31, 41. When they appeared at this hearing, plaintiffs cited published reports and information that the MRO was enacted “as a way to create hiring and promotional opportunities in the fire department and police department for the benefit of younger employees,” “for the benefit of creating some job openings for minorities in those departments,” and for the purpose of getting rid of the “deadbeats” and “old-timers” in the departments. Drnek R. 41 at 6-7.
Plaintiffs cited newspaper reports containing public statements made by the sponsor of the MRO and other City officials. For example, the MRO sponsor stated that the ordinance would “make room for young people coming in,” and that “[you get more work out of young upstarts than out of old-timers.” Drnek R. 41 at 9, 12. Similarly, the Fire Commissioner stated that the ordinance 4 gives younger people a chance to move up, bringing fresh ideas and talent, and gives the older mernbers a chance to enjoy the retirement ycars that they worked so hard to carn;” and the Chicago Tribune reported that “retirementt of older supervisors who climbed through the ranks of what city consultants called an old boy network also would open positions for minorities.” Drnek R. 41 at 11, 15. Plaintiffs also cited newspaper reports that the City waited four ycars after the 1996 exemption *14 was passed to enaet the MRO, so that a friend of the Mayor’s in the Police Department could retire voluntarily at age 68, suggesting that the City lacked a “legitimate public safety interest” in enacting the ordinance. Dmek R. 41 at 7, 13, 14.
VII. THE ORDER DENYING THE CITY’S MOTION TO DISMISS
On March 26, 2002, the Distriet Court denied the motion to dismiss with respect to plaintiffs’ ADEA cairns as well as the firefighters’ due process claims. A3-A40.10 The Court held that (1) the 2000 MRO was a “new law” and satisfies the age limits test set forth in 29 U. S. C. § 623(j)(1)(B)(ii) (A 17-A18); (2) section 623 (J) permits the City to enaet a MRO without offering fitness tests since HHS has failed in its mandate to develop such tests (Al0-Al7); (3) plaintiffs have sufficiently alleged subterfuge with their allegations that the MRO was passed for reasons that violate the ADEA’s purposes (AI8-A27); (4)even if the MRO specifically ineluded “publiesafety” as its stated purpose, the MRO, if it is to qualify for the §623(j) exemption, can be tainted by no impennissible purposes (A24-A25); and, (5) an analysis into the motivation of legislators and other City officials in passing the MRO is relevant to plaintiffs’ subterfuge claim (A23).11
*15 VIII. THE CERTIFICATION ORDER
On April 4, 2002, the City moved for interlocutor appeal pursuant to 28 U.S.C. § 1292(b) (2000). Drnek R. 33. The City proposed the following question for certification: “whether alleged illicit motives on the part of individual legislators and municipal officials for enacting a retirement plan that mandatorily retires, police and fire personnel at age 63 and results in their replacement with younger workers can demonstrate subterfuge under section 623(j)(2) of the ADEA.” Drnek R. 33 at 5; A43. The District Court elected to treat the City’s motion in part as a motion for reconsideration. Drnek R. 35.
On May 24, 2002, the District Court denied the City’s motion for reconsideration, noting that the City’s theory regarding the “subterfuge” prong as set forth in its motion would render the subterfuge prong “if not dead, at least moribund.” A50. Specifically, the Distriet Court noted that:
10

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Section 623(j) only applies if a mandatory retirement plan both meets the age requirements in §(j)(1) and is not a subterfuge under §(j)(2). The City’s interpretation [...] that facial compliance with (j)(1) precludes me from looking elsewhere, for evidence of subterfuge, would eviscerate the requirement that the plan not be a subterfuge.
A52.
However, while rejecting the City’s proffered question, the District Court sua sponte certified its own question for interlocutor review: “whether a plaintiff can demonstrate subterfuge under §623(j)(2) with any kind of evidence if there is no violation of §623(j)(1).” A53-54 (emphasis in original).
*16 SUMMARY OF ARGUMENT
Congress, in creating the 29 U.S.C. §623(j) safe harbor from the ADEA, did not intend to give states and municipalities carte blanche to fashion mandatory retirement schemes for any reason whatsoever. Instead, other provisions of the ADEA Amendments of 1996, as well as legislative history and settled precedent, indicate that the exemption was created for public safety purposes. Congress’ inclusion of language precluding states and municipalities from creating mandatory retirement schemes that are a “subterfuge” to evade the purposes of the ADEA indicates that if a municipality implements a mandatory retirement scheme for reasons that violate the ADEA’s stated purposes, that municipality cannot take advantage of the safe harbor.
A negative answer to the certified question, “whether a plaintiff can demonstrate subterfuge under §623(j)(2) with any kind of evidence if there is no violation of §62(j)(1),” would render §623(j)(2) a superfluous nullity, in violation of canons of statutory construction. This would be an especially improper result, given the remedial nature of the ADEA and the weighty precedent cautioning that exceptions to remedial statutes must be narrowly construed.
The City has raised several issues not immediately germane to the certified question, and plaintiffs address these issues in this brief. Despite the City’s unfounded attempts to improperly shift the burden to plaintiffs and to read heightened pleading standards into 29 U.S.C. §623(j) where none exist, the Distriet Court properly held that plaintiffs have stated a cause of action under the ADEA. The City relies on irrelevant and misleading case law to suggest that plaintiffs must allege a “substantive allegation” of the ADEA, and proceeds to mischaracterize plaintiffs’ complaints to say they have not done so, when a cursory examination of the pleadings indicates that they have. Finally, the City’s suggestion that its mere invocation of the safe harbor should shield it from all scrutiny of *17 its motivations in enacting and implementing the MRO has no basis in the law. Therefore, plaintiffs request that this Court uphold the judgment of the Distriet Court denying the City’s motion to dismiss, and answer the certified question in the affirmative.
*18 ARGUMENT
I. INTRODUCTION
This interlocutor appeal concerns a simple question of statutory interpretation addressed at the pleadings stage: whether a municipal employer can take advantage of a limited “safe harbor” exception to the ADEA to force public safety employees12 to retire at age 63, where plaintiffs have alleged that the City has engaged in a subterfuge of the ADEA’s purposes and has therefore failed to satisfy one of two distinct requirements set forth by Congress to take advantage of that exception. Following fundamentals of statutory construction, the question certified by the Distriet Court13 must be answered in the affirmative.
11

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The City’s insistence that the mere invocation of the “safe harbor” affords them protection from any scrutiny of its motivations as an employer is simply incorrect. Giving a municipal employer a pass from analyzing alleged discriminatory motivations for its employment decisions flies in the face of decades of ADEA and other civil rights jurisprudence. As detailed below, the mandatory retirement safe harbor does not give municipalities free rein to create any sort of mandatory retirement system they desire for police officers and firefighters. The exemption was created by Congress for a limited public safety purpose.
Answering the certified question in the negative, as the City is requesting, would run counter to established law in this Circuit and elsewhere, would deeplyprejudice plaintiffs, and would violate *19 the express language of the ADEA. Plaintiffs assert that the Distriet Court was correct in holding that they have surpassed the low threshold requirements to sur-vive a motion to dismiss. Plaintiffs therefore request that this Court uphold the District Court’s opinion denying the City’s motion to dismiss plaintiffs’ claims under the ADEA, and hold in response to the certified question that a plaintiff can demonstrate subterfuge under §623(j)(2) of the ADEA with any kind of evidence if there is no violation of §623(j)(1).
II. THE EXEMPTION SET FORTH AT 29 U.S.C. §6230) DOES NOT GIVE MUNICIPAL EMPLOYERS CARTE BLANCHE TO MANDATORILY RETIRE PUBLIC SAFETY EMPLOYEES.
In its brief, the City stretches the §623(j) exemption past any credible interpretation. It concludes that Congress intended to give municipalities nearly unfettered discretion to mandatorily retire public safety workers. This conclusion is incorrect. Other statutory language, the circumstances of the exemption’s passage, related legislative history, and judicial interpretation all reveal that Congress constructed the exemption to provide states and municipalities limited flexibility to use mandatory retirement for public safety purposes, not for any purpose.
Plaintiffs agree with defendant that “the starting point for interpreting a statute is the language of the statute itself.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Ine., 484 U.S. 49, 56 (1987). Viewed in their entirety, the 1996 amendments to the ADEA -- both within the four corners of the exemption itself, and in the other provisions simultaneously passed by Congress - demonstrate that Congress did not intend for states and municipalities to have carte blanche to mandatorily retire public safety workers for any reason. This is clear from not only the 4 exception to the exemption” (the §623(j)(2) subterfuge clause.) It is also true because, in keeping with the purposes of the ADEA, the provisions passed by Congress simultaneously with the 1996 *20 exemption were designed to ensure that the abilities of older public safety workers would be respected and their rights protected. These provisions,taken as a whole, suggest that Congress could not have intended the exemption to be an open invitation to municipal employers to implement arbitrary, discriminatory age restrictions in employment. Rather, the statute strongly suggests that the only legitimate reasons for the mandatory retirement of a public safety employee stem from public safety concerns.
When it amended the ADEA in 1996, Congress mandated that public employers would, in the future, be required to employ fitness tests for public safety employees. See 110 Stat. 3 009-24. This mandate was an explicit directive within the text of the 1996 exemption: Section 623(j)(1) specifically requires that an employer is entitled to safe harbor from the ADEA’s prohibitions only if the “employer has complied with section 3(d)(2) of the [ADEA] Amendments of 1996 [....]”14 Section 3(d)(2), in turn, requires that, effective on the date of issuance of the HHS regulations identifying “valid, nondiseriminatory job performance tests ..... an employer seeking [to mandatorily retire a firefighter or law enforcement officer] shall provide [...] an annual opportunity to demonstrate physical and mental fitness by passing [such a test] in order to continue employment.” (Emphasis supplied.)
While the requirement that employers comply with section 3(d)(2) may still be a prospective one (HHS has not yet promulgated any regulations), this does not render the overarching there of Congress’ amendments meaningless or superfluous. In mandating the development of fitness tests for public safety employees, Congress manifested its rejection of the notion that public employers should be indefinitely permitted to use age as a proxy for fitness to perform public safety jobs. By *21 requiring public employers to provide Public safety officers an annual opportunity to demonstrate their fitness for the job through the use of a valid, nondiscriminatory test, Congress manifested its intent that public safety employees
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should be able to continue to work -- regardless of age -- if they are flt to do so.15
In the interim between the passage of the 1996 amendments and the date upon which HHS finally issues valid fitness testing regulations, Congress therefore merely intended to give public employers a “grace period” in which they would be permitted to use age as a proxy for fitness to perform public safety jobs, and avoid the necessity of demonstrating that age is a bona fide occupational qualification (“BFOQ”) for ernployment as a public safety employee.16 This does not translate into an invitation forpublic employers to mandatorilyretire public safety employees for any reason (as defendant suggests), particularly a reason that has nothing to do with public safety.17
*22 Courts have consistently viewed 623(j) as a public safety exemption, created to serve public safety interests. As this Court noted in Kopec, “[a]s there was yet no consensus as to the propriety of such [mandatory retirement] age limits in Me public safety context, Congress believed that a national standard presumptively barring them (that is, unless they met the narrow criteria for a BFOQ) was inappropriate .... 193 F.3d at 900 (emphasis supplied). See also Glennon v. Village of South Barrington, 2000 WL 1230494 at *3 (N.D. Ill. 2000) (“Section 623(j) is a public safety exemption to the ADEA.” (emphasis supplied; Knight, 992 F.2d at 1546 (“mandatory retirement policies [...] in the case of firefighters and law enforcement officers, are understood to be motivated by concerns of safety, not cost.”)
Indeed, courts in this circuit have been hostile to municipalities’ attempts to use the §623(j) exemption for non-public safety purposes. Quinones, 829 F. Supp. at 242-43. In Quinones, the plaintiff (a newly-hired 34-year-old paramedic) sued the cityof Evanston and its Firefighters Pension Fund for failure to admit plaintiff to the pension fund based on age restrictions. Id. In moving to dismiss, Evanston argued that the §623(j) exemption meant that “it may discriminate against Plaintiff with regard to pension benefits on the basis ofage because the ADEA [specifically §623(j)] excludes firefighters from its protection.” Id. at 242. The court flatly rejected this argument, holding that “[t]he firefighter provision was passed to case the burden on local governments, but only to ensure public safety.” Id. at 243. The court went on to note that Evanston, in attempting to use the §623(j) exemption for non-public safety purposes misconstruess congressional intent in passing the ADEA.” Id. at 243. “It could not be the goal of an age discrimination law to create two classes of firefighters *23 on the basis of age, and then to sanctify discrimination against the group of older mernbers without justification merely because they are firefighters.” Id.
Plaintiffs concur with the City that nothing in the statute itself describes the exception as a public safety” exception. As indicated by the legislative and judicial history provided herein and in the City’s brief, however, the plain purpose of the exception was and is forpublie safetypurposes. To preclude other, illegal purposes, Congress placed an explicit exception within the exemption itself, by including the “subterfuge” language of 29 U.S.C. §623(j)(2).
Plaintiffs here allege that defendant engaged in subterfuge because it used mandatory retirement not for legitimate public safety purposes, but to accomplish a political objective. As plaintiffs explained in a hearing held below,18 citing published reports and statements by the key sponsors of the MRO, the City wanted to create large scale employment opportunities for younger workers, minorities, and wornen in these Departments and accomplished this objective on the backs of older workers. Dmek R. 41, 5-17. Plaintiffs cited discriminatory statements made by the Ordinance’s sponsors and contained in published reports, that suggested that mandatory retirement was necessary to rernove “deadbeats” and “old-timers” from the departments, to rout out the “old boy network,” and to “give [...] younger people a chance to move up, bring fresh ideas and talent, and give [...] the older members a chance to enjoy the retirement ycars that they worked so hard to eam.” Drnek R. 41, 12-14. These facts, which were obtained through pre-filing investigation and *24 not with the benefit of any discovery in this litigation, support plaintiffs’ allegation that the City used mandatory retirement as a subterfuge to evade the ADEA’s prohibition against arbitrary age discrimination.
III. THE DISTRICT COURT PROPERLY FOUND THAT PLAINTIFFS ALLEGED A VIABLE THEORY OF LIABILITY UNDER THE ADEA
A. Plaintiffs’ Subterfuge Claims Are Valid and Sufficiently Pled
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Plaintiffs’ allegations of subterfuge easily satisfy the liberal pleading standard for employment discrimination cases. As the Suprerne Court recently made clear, a discrimination complaint must include only “a short and plain statement of the claim showing that the leader is entitled to relief.” Swierkiewiez v. Sorerna, 534 U.S. 506, 512 (2002). As the Swierkiewiez Court explained, “This simplified notice pleading standard relies on liberal discovery rules, and summary judgrnent motions to define disputed facts and issues and to dispose of unmeritorious claims.” Id. In their complaints, plaintiffs summarized their subterfuge allegations in a manner which, as the Swierkiewiez Court required, “give[s] the defendant fair notice of what the plaintiff s clairn is and the grounds upon which it rests.” Id, citing Conley v. Gibson, 355 U.S. 41, 47 (1957).19 These allegations are more than sufficient to satisfy liberal notice pleading standards.
On a motion to dismiss, the Court must take all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiffs. Szumy v. American Gen. Fin. Inc., 246 F.3d 1065, 1067 (7th Cir. 2001). A motion to dismiss should be denied unless *25 it is impossible for a plaintiff to prevail under any set of facts consistent with its allegations; defendant bears the burden of demonstrating such an impossibility. Albiero v. Kankakee, 122 F3d 417, 419 (7th Cir. 1997). The task of the Court is to “look to sce whether there is any possible interpretation of the complaint under which it can state a claim.” Martinez v. Hooper, 148 F.M 856, 858 (7 Ih Cir. 1998). Applying these standards, the Distriet Court properly found that plaintiffs have stated a claim for a violation of the ADEA under the subterfuge provision of 29 U.S.C. §623(j)). A27.
The City, however, makes, two arguments that suggest an improper “heightened pleading standard” applies to ADEA subterfuge claims. First, defendant argues, that plaintiffs have not properly pled subterfuge because plaintiffs fail to allege that the City’s MRO evades “a substantive prohibition of the ADEA.” Br. at 24. Secondly, the City misconstrues plaintiffs’ case as simply an allegation that the MRO was intended to replace older workers with younger workers, and argues that this cannot constitute subterfuge as a matter of law. Br. at 24. Both arguments should be rejected.
B. The City Misinterprets “Subterfuge”
The City, relying on Public Ernployces Retirement System of Ohio v. Betts, 492 U.S. 158 (1989), and Bell v. Purdue University, 975 F.2d 422 (7th Cir. 1992), asserts that in order to trigger the §623(j)(2) subterfuge restrictions, plaintiffs must allege that the MRO violated a “substantive prohibition” of the ADEA. Br. at 24-25. Nothing in the language of §623(j)(2), however, supports this assertion. Furthermore, the subterfuge analysis contained in Betts and Bell has been *26 conclusivelyre jected; onlythe definition of subterfuge proffered by the Betts court lives on.20Solon v. Gary Community Sch. Corp., 180 F3d 844, 849 n.2 (7th Cir. 1999) (“Congress overruled Betts [...] when it enacted the Older Workers Benefit Proteetion Act of 1990,” citingPub. L. No. 101-433, 104 Stat. 978 (1990).) Therefore, the City’s tortured, unsuccessful attempts to distill a coherent “subterfuge” analysis from Betts and Bell, an analysis which ultimately corresponds to neither legislative history nor any relevant precedent, must be rejected.21 Br. at 27.
Even if the Betts subterfuge analysis still survives in any form, however, it is not relevant to theinstant case. The Betts decision involved a retirce rceciving “age-and-service” retirement benefits who had sought to retire under a more lucrative disability retirement but was kept from doing so because she did not meet maximum age requirements. 492 U.S. at 163-64. The plaintiff asserted that the age requirements constituted an improper subterfuge. Id. at 164. The Betts court disagreed, holding that because all age-based retirement plans facially violate the provisions set forth in 29 U.S.C. §623(a), in terms of fringe benefits, Congress could not have intended the “subterfuge” *27 prohibition to preclude age-based differentials. Id. at 177-78. However, for “non-fringe” aspects of the employment relationsliip, including “hiring and firing, wages and salaries [...],” the Court made elear that “[a]ny attempt to avoid the prohibitions of the Act by cloaking forbidden discrimination in the guise of age-based differentials in benefits will fall outside the [...] exemption.” Id. at 177, 180.
The City misreads Betts to hold that “subterfuge” should be cireumseribed in the same manner for both “fringe” and “nonfringe” benefits. This is ineorreet. Forced termination, as wc have here, is clearly a “non-fringe” aspect of the employment relationship. Betts and Bell, even if still valid, are therefore inapposite. Nevertheless, the City builds upon the weak foundation of these two questionable cases to read into the statute a nonexistent requirement that an allegation of
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subterfuge requires an allegation of a substantive allegation of the ADEA. Br. at 27-31.
1. Nothing in the Subterfuge Prong Requires “Substantive Allegations”
Section 623(j)(2) requires that in order for a mandatory retirement plan to qualify for the ADEA exemption, it must be made “pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade Mepurposes of this chapter.” 29 U.S.C. §623(j)(2) (emphasis supplied). There is nothing in §623(j) to suggest that plaintiffs must allege a “substantive allegation” of the ADEA in order to allege subterfuge. If Congress had intended to require that subterfuge could only be an illicit scheme or plan to violate a narrow range of substantive provisions of the ADEA, it would have written this explicitly into the exception. It did not; instead, Congress gave subterfuge the broadest possible application. A subterfuge claim can be prernised on the evasion of any of the “purposes” of the ADEA, defined at 29 U.S.C. §621 (b): “[i]t is therefore the purpose of this chapter to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age *28 discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.” Plaintiffs have alleged that the City’s MRO was passed as a subterfuge, for reasons that violated the Act’s stated purposes. Minch R. 1, Drnek R. 6. Therefore, plaintiffs have sufficiently alleged subterfuge.
2. Even Assuming, Arguendo, That The “Substantive Allegation” Argument Is Valid, Plaintiffs Have Met This Burden
The City repeatedly alleges that plaintiffs “fail to identify any prohibition of the ADEA that the City’s Ordinance allegedly ‘evades.”’ Br. at 35. This is simply untrue. Plaintiffs’ complaints specifically allege that the passage of the MRO violates the “substantive provisions” of 29 U.S.C. §623(a) forbidding diserimination “withrespeetto [...] compensation, terms, conditions, or privileges of employment, because of age.” 29 U.S.C. §623(a). Minch R. 1, ¶32; Drnek R. 6, ¶¶19. They also specifically allege that plaintiffs “suffered loss [...] of employMent, wages, benefits, and Compensation” Minch R. 1, ¶¶36; Drnek R. 6, ¶¶28. The City’s insistence that plaintiffs have not alleged a “substantive violation” of the ADEA should be discounted entirely.22
C. Plaintiffs Have Not Solely Alleged That the MRO Replaces Older Workers with Younger Workers.
Defendant attempts to pigeonhole plaintiffs’ subterfuge allegations as consisting entirely of assertions that the MRO replaced older workers with younger workers. Br. at 43. lt is a threshold requirement of an ADEA complaint that plaintiffs allege that an older worker was replaced with a younger worker. Futrell v. J.I. Case, 38 F.M 342, 346 (7th Cir. 1994). Plaintiffs therefore, based *29 upon their profiling investigation, made such an allegation. Minch R. 1-1 at 8-9; Dmek R. 6 at 5. But what has been alleged with respect to the City’s improper motivations does not represent every faet upon which plaintiffs’ cairns are based. There is no requirement that plaintiffs allege every faet which supports their claims. Swierkiewicz, 534 U.S. at 512.
IV. THE CITY BEARS THE BURDEN OF PROVING THAT IT IS ENTITLED TO THE EXEMPTION UNDER 623(j)
A. The City Bears the Burden of Proof that it did not Engage in Subterfuge
While there is no case which identifies who bears the burden of proving that an employment action taken pursuant to §623(j) is not “a subterfuge to evade the purposes of [the ADEA]” under §623(j)(2), Congress has answered the question as it relates
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to a different, nearly identical, provision of the ADEA which prohibits the use of benefit plans which are “intended to evade the purposes of [the ADEA]”, §4(f)(2) (now 29 U.S.C. 623(f)(2)). In overruling Betts through the passage of the OWBPA, Congress explicitly rejected, inter alia, the erroneous conclusion that the plaintiff bears the burden of “proving that the discriminatory plan provision actually was intended to serve the purpose of discriminating in some nonfringe-benefit aspect of the employment relation,” 492 U. S. at 181.23 Congress clarified that the exemption afforded by §4(f)(2) is an “affirmative defense” and wrote into the Act itself the requirement that the burden of proof would rest with the employer to demonstrate its actions are lawful, rather than on the employee to demonstrate that they are not. OWBPA, §103(1), amending29 U.S.C. 623(f)(2). See e.g., EEOC v. Westinghouse Elect. Corp., 925 F.2d 619, 622 n.2 (3d Cir. 1991).24
*30 Significantly, the Committee on Labor and Human Resources, which was referred and recommended the Bill (S 1511), explained that this change was intended to make the assignment of burden of proof consistent with other provisions of the ADEA, so that the assignment of the burden of proof to employers “to plead and prove the defenses and exceptions established in [section 4(f)].” was “reestablished” Senate Report No. 101-263, 1990 U.S.C.C.A.N. 1509, 1510, 1535. As the Committee wrote:
The Court in Betts erroneously held that section 4(f)(2) is not an affirmative defense and, therefore, that the employee bears the burden of proof under the exception for employee benefit plans. [...] The Committee wishes to make clear, by adding the last sentence to section 4(f), that the employer bears the burden to plead and prove the defenses and exceptions established in that section. The Committee intends that the amendments made by the bill to section 4(f)(2) - should be interpreted in a manner similar to the way the EEOC and most courts have interpreted the ADEA’s other affirmative defense, section 4(f)(1).
Id.
Having “reestablished” that the burden rests with employers to prove under 29 U.S.C. §623(f)(2)(a) that a benefit plan “is not intended to evade the purposes of this chapter,” so as to bring this provision into line with other provisions of the ADEA, Congress eliminated any doubt that an employer also bears the burden to prove that employment action taken pursuant to a closely related provision of the ADEA, 29 U.S.C. §623(j), is “not a subterfuge to evade the purposes of [the ADEA].” 29 U. S. C. §623(j)(2). To conclude otherwise would result in the very same inconsistent assignment of burdens which Congress souglit to eliminate.
*31 B. While the Exemption Relieves the City from Making a BFOQ Showing, it Does Not Immunize the MRO from Scrutiny
The City attempts to use the legislative history of the exemption to reach two unsupportable conclusions. First, it asserts that if it is required to justify its use of mandatory retirement on public safety grounds, that such a requirement reinstitutes the “age-as-BFOQ” requirement from which the exemption was meant to provide relief. Br. at 40. Second, and somewhat contradictorily, it also suggests that because the public safety motivation of Congress in passing the exemption is apparent from the legislative history, the City, by merely invoking the exemption, should be given the benefit of the doubt when it states that the exemption is being used for public safety purposes. Br. at 42. Neither argument can withstand serutiny.25
At the same time that defendant cites public safety as the “stated purpose” of the MRO, it asserts that there is no rcquirement under the ADEA that publie safety be its true purpose. The City argues that because the exemption provides relief from making a BFOQ showing, it bears no burden regarding justification of the exemption on public safety grounds. Br. at 40. But this is putting the cart before the horse. In order to qualify for the exemption in the first instance, the City must satisfy cach of the requirements of the exemption; for relevant purposes, here, it must satisfy its burden to demonstrate that it did not enaet the MRO as a subterfuge to evade the ADEA’s purposes. While the safe harbor provision of §623(j) may relieve the City of the obligation to make a BFOQ showing, it does not permit the City to lise mandatory retirement, in the first instance, as a subterfuge to evade *32 the purposes of [the ADEA].” 29 U.S.C. §623(j). Nor does being relieved of the obligation to make a BFOQ showing mean that the City is relieved of its burden to prove, in this case, that its Mandatory Retirement Ordinance
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was not intended to serve a discriminatory purpose. This burden still falls squarely on defendant.26
The City argues that a public safety purpose must be presumed from its attempted invocation of the exemption, because the Congressional history strongly indicates that public safety was the reason for the exemption.27 Br. at 41. This supposed presumption, if it exists, however, does not and cannot inoculate every improper motive for creating a mandatory retirement scherne from allegations of subterfuge.
Defendant suggests that if public employers were required to use mandatory retirement only for public safety purposes, this would place the burden on public employers “to prove that relationship.” Br. at 4 I. But this argument does somersaults around the issue. First, while defendant may not be required to prove the connection between age and public safety in order to meet its burden of demonstrating that mandatory retirement was not used as a subterfuge, this does not mean that no such connection needs to exist for its conduct to be inoffensive to §623(j)(2). The question *33 of whether the City had a public safety purpose for passing the MRO is directly relevant to the issue of whetherit engaged in subterfuge. Plaintiffs assert that the only purposes which are consis tent with the exemption, and which do not offend the prohibition against subterfuge, are those which are solidly grounded in public safety interests. lt is those purposes which should have guided the City’s conduct in the first instance. As the subterfuge clause makes clear, the prohibition on the misuse of the exemption, like the ADEA itself, has a prohibitory as well as remedial purpose, that is designed to curb arbitrary discrimination. 29 U.S.C. §623(j)(2). The City’s complaint that ascertaining the relationship between age and public safety is somehow “too difficult” (Br. at 37) therefore addresses only the BFOQ question, and is simply not relevant to what the statute does demand, that a municipal employer’s use of age limits for firefighters and police officers may not be a subterfuge to evade the ADEA’s antidiscimination purposes. The City’s assertion that requiringjustification of mandatory retirement on public safety grounds would subject it to a BFOQ requirement is similarly inapposite. Br. at 40. As indicated by the City’s own legislative history analysis, the exemption was passed for public safety purposes. Br. at 4 I. Otherwise there would be no justification for allowing blatant age discrimination in the form of mandatory retirement.28
V. UNDER BASIC PRINCIPLES OF STATUTORY CONSTRUCTION, THE CERTIFIED QUESTION MUST BE ANSWERED IN THE AFFIRMATIVE
The language of the §623(j) “safe harbor” contains two requirements that the City must satisfy to receive the safe harbor’s benefit: (1) a requirement concerning minimum retirement age (29 U.S.C. §623(1)), and (2) a requirement that mandatoryretirernent not be a “subterfuge to evade *34 the purposes” of the ADEA (29 U.S.C. §623(2)). Congress intended that both elements be fulfilled for a municipality to qualify for the exemption from the ADEA. The question certified by the District Court - “whether a plaintiff can demonstrate subterfuge under §623(j)(2) with any kind of evidence if there is no violation of §623(j)(1)” A54 (emphasis in original) - must, therefore, be answered affirmatively. To do otherwise would frustrate Congressional intent, rendering the “subterfuge” prong meaningless and superfluous. Furthermore, remedial statutes such as the ADEA must be construed broadly (Oscar Mayer & Co. v. Evans, 441 U. S. 750, 765 (1979) (Blackmun, J., coneurring)), and exceptions to such statutes must be construed narrowly. Piedmont & Northern Railway Co. v. Interstate Commerce Commission, 286 U.S. 299, 311-12 (1932). Answering the certified question in the negative would not meet these requirements.
This Court has held that among the most important elements of statutory construction is reading the statute in its entirety. Kopec, 193 F.3d at 902 (Courts “are loathe to adopt constructions that render a statutory provision superfluous, citing Hohn v. United States, 524 U.S. 236, 249 (1998)); Matter of Lifschultz Fast Freight Corp., 63 F.3d 621, 628 (7th Cir. 1995) (Courts have a “deep reluctance to interpret a statutory provision so as to render superfluous other provisions of same enactment.” (internal citations omitted.
The Distriet Court appropriately rejected the City’s interpretation of §623(j) because it would, in effect, collapse §623(j)(1) and §623(j)(2) into one inquiry rendering the “not a subterfuge” language in §623(j)(2) “empty language.” A50-A51. If the certified question were definitively answered in the negative, it would foreelose a plaintiff from attacking any mandatory retirement plan passed after 1996, so long as it imposed a retirement age at or over age 55, no matter how much subterfuge
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played a role in the passage or implementation of the plan, and no matter how *35 discriminatory the municipality’s motives might have been. As noted by the Distriet Court, such a reading would render the subterfuge prong of the exemption meaningless.
To counter this argument, the City sets forth potential scenarios where it admits subterfuge could be proven. Br. at 52. Unfortunately for the City, plaintiffs’ allegations correspond to these scenarios. These scenarios include a claim of an agebased reduction in compensation, which the City characterizes as a properly-alleged violation of 29 U.S.C. §623(a).29 Br. at 52-53. As stated above, plaintiffs have alleged that passing the mandatory retirement ordinance represents a violation of 29 U.S.C. §623(a). Minch R. 1, ¶¶32; Drnek R. 6, ¶¶19. Therefore, by the City’s own reasoning, plaintiffs have successfully alleged a claim of subterfuge.
Much of the City’s argument rests on the foundation that plaintiffs have not alleged a substantive violation of the ADEA, and that such an allegation is required for a claim of subterfuge to stand:
By its plain terms, the subterfuge provision does not provide separate substantive protection; it is a reminder that the other substantive prohibitions of the ADEA cannot be evaded. As such, the subterfuge provision does provide significant protection -- it ensures that mandatory retirement will not be used as a means of discriminating against older workers in other aspects of their employment.
*36 Br. at 54 (emphasis supplied). Plaintiffs have conclusively demonstrated that the “substantive violation” requirement does not exist; however, it is critical to note that even tlie City’s arguments run counter to the result that would take place if thecertified question were answered in the negative. If plaintiffs can proffer no evidence of subterfuge provided that 29 U.S.C. §623(1) is met, the subterfuge claim would be obliterated, providing none of the “significant protection” the City seeks to reassure the Court it does indeed provide.
The City’s reassurance to this Court that the subterfuge prong would still provide protection (even though the City’s preferred answer to the certified question would wipe it out completely) is disingenuous. Answering the certified question in the negative, as the City urges, would eliminate any protection under the ADEA for older public safety workers who are retired at or above the age of 55 (or where the retirement age in effect is the same as was in effect in 1983). This would eviscerate the subterfuge prong entirely.
This result is clearly inconsistent with the broad rernedial purposes of the ADEA and the narrow purpose of the §623(j) exemption. The ADEA is a remedial statute, and as such, must be liberally construed in order to effect its purposes. Oscar Mayer, 441 U.S. at 765 (Blackmun, J., concurring). See e.g., Anderson v. Montgomery Ward & Co., Inc., 852 F.2d 1008, 1012 (7th Cir. 1988) (“ADEA must be interpreted liberally to further its remedial purposes [....]”); Kephart v. Institute of Gas Technology, 581 F.2d 1287, 1288 (7th Cir. 1978).
The 623(j) safe harbor, on the other hand, is an exception to remedial social legislation and must be narrowly construed. Sexton v. Beatrice Foods Co., 630 F.2d 478, 486 (7th Cir. 1980) (ADEA exemption must be narrowly construed), citing A.H. Phillips, lnc. v. Walling, 324 U.S. 490, 493 (1945). Congress has determined that arbitrary age limits are, in general, repugnant to the *37 ADEA’s purposes. See 132 Cong. Rec. 32658 (1986). Therefore, the mandate to interpret exceptions to the Act’s protections narrowly is especially significant when, as here, individuals are being mandatorily retired. Western Air Lines, Ine. v. Criswell, 472 U.S. 400,410 (1985). The City’s proffered limitation of “subterfuge” to a vestigial redundancy can in no way be considered a narrow interpretation of the 623(j) exemption, and was therefore properly rejected by the Distriet Court.
VI. ASAMATTEROFLAW, THE CITYCANNOT QUALIFY FOR THE 623(j) “SAFE HARBOR” WITHOUT SATISFYING BOTH OF ITS DISTINCT REQUIREMENTS.
The Kopec court regularly referred to the mandatory retirement exemption as a “safe harbor,” a term with specific legal 18

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connotations. 193 F.3d at 900. To qualify for a “safe harbor” a defendant must meet all of the safe harbor’s stated requirements. See e.g., Stuart v. Unum Life Insurance Co. of America, 217 F.3d 1145 (9th Cir. 1999). For example, in order to satisfy a safe harbor provision to be excerpted from the Employee Retirement Income Security Act (ERISA), several circuits have held that an employer must satisfy all four requirements of the safe harbor provision. Id. at 1153 (internat citations omitted).
Settled precedent in this Circuit indicates that the two prongs of the public safety exemption are separate and distinct requirements, and both must be met for a municipality to qualify for the safe harbor. Kopec, 193 F.3d at 902 n.5;Glennon, 2000 WL 1230494 at *3. As the Seventh Circuit found in Kopec, there is no ambiguity in the statute concerning whether the two prongs of 623(j) are distinct. 193 F.3d at 902 n.5 (“[T]he statute conditions the exemption from ADEA coverage on two distinct criteria...” (Emphasis supplied.)) After the Kopec court concluded that the defendant’s retirement scheme was lawful under the first prong of the ADEA’s public safety exemption, the Seventh Circuit did not stop its analysis (as the City requests the court do here, and as a negative *38 answer to the certified question would require). 193 F.3d at 899. Rather, the Seventh Circuit faithfully adhered to the statutory requirements, completing the analysis required by the statutory language in §623(j) by also addressing the second prong (finding “no evidence that [defendant’s] plan amounted to a subterfuge.”)30Id.
The Seventh Circuit also took care to analyze both prongs of a “subterfuge” exception to the ADEA in Karlen, 837 F.2d at 319-20.31 In that case, the Court analyzed a claim under an earlier iteration of the ADEA concerning early retirement plans in general. Id. at 318, citing29 U.S.C. §623(f)(2). The specific requirements of the “safe harbor” at issue in that case were “that the features of the Early Retirement Program of which the plaintiffs complain are (1) part of a bona fide employee benefit plan, and (2) not a subterfuge.” Id. at 318, 319. Finding that the plan was indeed bona fide, the Court went on to analyze whether it constituted subterfuge. Weighing evidence presented by both parties, the Court held that the jury could find the plan to be a subterfuge of the ADEA, and denied summary judgment to defendant. Id. at 320.
Plaintiffs have alleged that the City has failed to meet both requirements set forth in 29 U.S.C. §623. Specifically, plaintiffs have alleged the City cannot meet the second requirement set *39 forth at §623(j)(2) because the MRO was passed as a subterfuge to evade the purposes of the ADEA. Minch R. 1 at 8-9; Drnek R. 6 at 5. The City insists that plaintiffs’ allegations that the MRO was motivated by considerations other than public safety do not state a claim of subterfuge. Br. at 36-42. But the City misapprehends plaintiffs’ allegations - the City’s actions in passing the MRO do not constitute subterfuge simply because reasons other than public safety motivated its passage. The Citv ‘s actions constitute subterfuge because those other reasons vilate the ADEA, thereby irrevocably tainting the MRO and preventing it from qualifying for the safe harbor exemption. As Judge Bucklo noted in her opinion denying the City’s motion to dismiss, “it is not enough that a permissible motive is conceivable; under §623(j), the wrong motive is fatal, even if a permissible motive can be imagined.” A24-A25.
The Distriet Court held that the current MRO satisfies §623(j)(A)(2). Al7-Al8. As detailed above, plaintiffs have successfully alleged that the MRO cannot meet 29 U.S.C. §623(j)(2) because, as the Distriet Court appropriately held, at the motion to dismiss stage and with discovery stayed, plaintiffs had stated a cause of action alleging “subterfuge.” A18-A27. Therefore, guided by principles of statutory construction, the language of the statute itself, and prior Seventh Circuit precedent, the Distriet Court correctly upheld plaintiffs’ “subterfuge” caims and denied the City’s motion to dismiss.
VII. THE CITY’S ATTEMPTS TO CURTAIL INQUIRY INTO LEGISLATIVE MOTIVATION ARE MISPLACED.
Defendant insists that the creation of job openings andpromotional opportunities, foryounger workers is nothing more than the “inevitable result” of any mandatory retirement policy. Br. at 43. But this argument ignores the faet that an ernployer’s misuse of mandatory retirement as a subterfuge *40 will also yield the same “inevitable result,” even though the employer’s subterfuge is clearly prohibited. After all, it is the motive of the employer that makes, the conduct lawful or unlawful, not simply its “result.”
The City spends a substantial portion of its brief rehashing the settled issue of whether legislative motivation is a topie
19

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plaintiffs have the right to examine. Br. at 46-52. The City asserts that plaintiffs are foreclosed from any analysis of its motivation in this case, even though it functioned as an employer. Br. at 46-52. Both the precedential history of “subterfuge” as described above, as well as other precedent, belie the City’s assertion. By alleging subterfuge, plaintiffs have placed at issue defendant’s true motivation in passing and implementing the MRO. If plaintiffs succeed in proving that defendant engaged in subterfuge, the Citywill find no safe harbor protection under 29 U.S.C. §623(j).
The City’s fervent reliance on Pacific Gas & Electrie Co. v. State Energy Resources Conservation & Development Comm’n., 461 U.S. 190, 216 (1983) is misplaced. Br. at 48. As the District Court noted the second time it rejected this same argument:
I rejected the City’s reliance on Pacific Gas, for the proposition that inquiry into the motives of the legislators’ state of mind was never permissible. I held that Pacific Gas was distinguishable on two grounds: (1) that subterfuge is a factual question, whereas preemption, the issue in Pacific Gas, is a matter of law; and (2) that the legal standards in Pacific Gas and under the ADEA were different, and that the “true motive” of the legislators does matter for the purposes of §623(j)(2) of the ADEA.
A45.
Nothing in the City’s Appellate brief counters the Distriet Court’s analysis of Pacific Gas. The Seventh Circuit has considered “subterfuge” under the ADEA and has repeatedly utilized a faetbased *41 inquiry in both the cases upon which the City itself relies, Kopec and Bell, as well as in several other cases.32
The City insists on misrepresenting plaintiffs’ arguments regarding legislative motivation as entirely consisting of arguments concerning “individual” legislator motivation. Br. at 46 During the evidentiary hearing before the Distriet Court, plaintiffs made reference, among other things, to statements of individual legislators and municipal officials which suggested illicit intent in passing the MRO Drnek R. 41. Those statements, however, do not represent the universe of subterfuge evidence potentially available to plaintiffs. The full scope of that evidence is simply unknown at this pre-discovery stage of the case.
Nevertheless, even if all plaintiffs can present is evidence of discriminatory intent on the part of individual legislators and municipal officials, such evidence could still be sufficient for a trier of faet to find subterfuge for ADEA purposes. In Hunt v. Markham Ill., 219 F.3d 649 (7th Cir. 2000), the Seventh Circuit held that repeated “racist” and “ageist” comments made by African-American city officials about older white police officers constituted sufficient evidence to survive summary *42 judgment when those police officers sued under, among other statutes, the ADEA. The Court distinguished between cases where “stray remarks” were made in a work environment and cases where similar remarks were made by employment decisionmakers:
The defendant does not argue, however - which would also be frivolous - that the City of Markham is not legally responsible for the discriminatory actions of the mayor, city council, and board of fire and police commissioners; for they are the city government. [...] It is different when the decision makers themselves, or those who provide input into the decision, express such feelings (1) around the time of, and (2) in reference to, the adverse employment action complained of. For then it may be possible to infer that the decision makers were influenced by those feelings in making their decision. This is such a case. Although the mayor does not vote at meetings of the city council, he recommends actions to them, including the denial of the raises sought by these two plaintiffs. Emanating from a source that influenced the personnel action (or nonaction) of which these plaintiffs complain, the derogatory comments became evidence of discrimination [....]
Id. at 652-53 (citations omitted; emphasis in the original).
The City continues to insist, however, that because courts are “ordinarily reluctant” to look into legislative motives, no such analysis is warranted here.33 Br. at 47. As the Distriet Court *43 emphatically noted, motivation does matter in this case. A2lA27. When statutory or Constitutional requirements render the motives of legislators relevant to the disposition of the case,
20

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courts do not shrink from examining those motives. Rather, the practical difficulties, are dealt with as they comer. As the Seventh Circuit stated recently in a First Amendment case:
In short, the relevance of motive to constitutional adjudication varies by context. No automatie cause of action exists whenever allegations of unconstitutional intent can be made, but courts will investigate motive when precedent, text, and prudential considerations suggest it necessary in order to give full effect to the constitutional provision at issue.
Grossbaum v. Indianapolis-Marion County Bldg. Authority, 100 F.M 1287, 1294 (7th Cir. 1996). See e.g., Wallace v. Jaffree, 472 U.S. 38,56-60 (1985); Washington v. Davis, 426 U.S.229 (1976); Arlinzton Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 141 (3rd Cir. 1977). Where, as here, motivation is necessarily implicated, plaintiffs must be allowed to examine such motivations. See e.g., Fraternal Order of Police v. Hobart, 864 F.2d 551, 554 (7th Cir. 1988) (In a First Amendment case, where evidence of legislative motivation is required to prove a claim, such evidence must be admissible.)
The City, however, has argued below, and has argued less vigorously before this Court, that since its MRO has stated a legitimate public safety purpose within the prearnble of the Ordinance,34*44 any inquiry into the motivation for its passage must end there.35 This argument is illogical in a case where allegations of subterfuge have been made.36 No one could reasonably expect that the Ordinance’s “stated purpose” would be anything other than a legitimate one. Indeed, if all that was necessary to insulate an ill-motivated law from a subterfuge claim was the insertion of a legitimate stated purpose in the text of the law, it would be the rare legislative body which would not take this step as protection against allegations of discriminatory motive. Courts have long recognized that plaintiffs in discrimination cases face particular evidentiary obstacles because few employers will admit that their conduct was discriminatory. “Even an employer who knowingly discriminates on the basis of age may leave no written records revealing the forbidden motive and may communicate it orally to no one.” Oxman v. WLS TV, 846 F.2d 448, 453 (7th Cir. 1988).
Where, as in the instant litigation, plaintiffs allege that City officials and legislators, acting in their role as employers, created a mandatory retirement scheme that is a subterfuge meant to evade the ADEA’s purposes, the motivation behind such a decision must be scrutinized. The City’s attempt to utilize Pacific Gas as a shield from such scrutiny is incorrect, and this Court should so hold.

*45 VIII. CONCLUSION
For the foregoing reasons, the judgment of the District Court denying the City’s motion to dismiss plaintiffs’ ADEA claims should be upheld, and the certified question should be answered inn the affirmative.

Footnotes

1

The Distriet Court also denied the City’s motion as to the due process cairns of the firefighter plaintiffs, but granted the motion as

to the due process cairns of the police officer plaintiffs. A27-A40. The firefighters’ due process cairns rernain before the Distriet

Court and are not at issue in this appeal.

2

Citations beginning with “A” refer to the appellate appendix.

3

The City’s proffered issue was whetherhr allegedly illicit motives on the part of individual legislators and municipal officials for

enacting a retirement plan that mandatorily retires police and fire personnel at age 63 and results in their replacement with younger

workers can demonstrate subterfuge under section 623(j) of the ADEA.” A54.

4

Plaintiffs also made other allegations concerning the lack of fitness testing for public safety employees facing mandatory

retirement, as well as violation of their due process rights under the federal and Illinois constitutions. Minch R. 1; Drnek R. 6.

21

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5

The 1986 exemption read:

(j) Employment as firefighter or law enforcement officer:

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, and

(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.

29 U.S.C. §623(j)(1990).

6

Gately v. Massachusetts, 1998 WL 518179 at * 2 (D. Mass. 1998), citing Landy, F.J., et al., Alternatives to Chronological Age in

Determining Standards of Suitability for Public SLfety Jobs, Executive Summary, Pennsylvania State University, 17-18 (1992).

7

STUDY AND GUIDELINES FOR PERFORMANCE TEST

(a) STUDY. - Not later than 3 years after the date of enactment of this Act, the Secretary of Health and Human Services, [...] shall

conduct [...] a study, and shall submit to the appropriate committees of Congress a report based on the results of the study that shall

include -

(1) A list and description of all tests available for the assessment of abilities important for the completion of public safety tasks

performed by law enforcement officers and firefighters;

(2) A list of the public safety tasks for which adequate tests described in paragraph (1) do not exist;

(3) A description of the technical characteristics that the tests shall meet to be in compliance with applicable Federal civil rights

law and policies;

(4) A description of the alternative methods that are available for determining minimally acceptable performance standards on the

tests;

(5) A description of the administrative standards that should be met in the administration, scoring and score interpretation of the

tests; and,

(6) An examination of the extent to which the tests are cost-effective, are safe, and comply with the Federal civil rights law and

policies.

[...]

(c) ADVISORY GUIDELINES.--Not later than 4 ycars after the date of enactment of this Act, the Sceretary shall develop and

issue, based on the results of the study required by subsection (a), advisory guidelines for the administration and use of physical

and mental fitness tests to measure the ability and competency of law enforcement officers and firefighters to perform the

requirements of the jobs of the officers and firefighters.

(d) JOB PERFORMANCE TESTS. - -

(1) IDENTIFICATION OF TESTS.--After issuance of the advisory guidelines described in subsection (c), the Sceretary shall issue

regulations identifying valid, nondiscriminatory job performance tests that shall be used by employers seeking the exemption

described in section 4(J) of the [ADEA] with respect to firefighters or law enforcement officers who have attained an age of

retirement described in such section 4(j).

(2) USE OF TESTS.--Effective on the date of issuance of the regulations described in paragraph (I), any employer seeking such

exemption with respect to a firefighter or law enforcement officer who has attained such age shall provide to each firefighter or law

enforcement officer who has attained such age an annual opportunity to demonstrate physical and mental fitness by passing a test

described in paragraph (I), in order to contirme employment.

[...]

8

“Section 3(d)(2) of the ADEA Amendments of 1996, referred to in subsec. (j)(1), probably means Pub.L. 104-208, Div. A., Title I,

§ 101(a)[Title I, §119, subsec. 2(d)(2)], Sept. 30, 1996, 110 Stat. 3009-25, which is set out as a note under this section.” 29 U.S.C.

§623(j), Historical and Statutory Notes, “Reference in Text.”

9

The May 17, 2000 Ordinance amended Chapter 2-152-140 of the Municipal Code to read, in relevant part, as follows:

(a) Effective December 31, 2000, the age of 63 shall be the maximum age for employment of sworn members of the police

department, including a sworn member who is transferred or appointed to a supervisory or administrative position.

(b) Effective December 31, 2000, the age of sixty-three shall be the maximum age for employment of any member of the

uniformed service of the Fire Department, the duties of whose position are primarily to perform work directly connected with the

control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment, including an employee

engaged in this activity who is transferred or appointed to a supervisory or administrative position.

10

The Court dismissed the police officers’ due process claims based on analysis of the specific language contained in their collective

22

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bargaining agreements. A27-A40. As only the ADEA issue was certified for interlocutor appeal, the firefighters’ due process caims remain before Judge Bucklo. Minch R.77; Drnek R. 53.

11

The Court reasoned:

[T]he intent or desire of alderman or other City officials is both relevant and material. A subterfuge analysis, like a pretext analysis

under a traditional MeDonnell Douglas-style analysis, necessarily requires the trier of faet to look beyond the defendant’s

statement of purpose or intent to sce whether it is just an excuse or an “artifice of evasion” to cover up otherwise prohibited

conduct.

A23.

12

Throughout this brief, plaintiffs use the term “public safety employees” to refer to police officers and firefighters forced to retire by

the City of Chicago. Plaintiffs note that for reasons that are unclear (but seem inconsistent with the purported public safety

justification suggested by the City), paramedics were not covered in the City’s mandatory retirement plan.

13

“Whether a plaintiff can demonstrate subterfuge under §623(j)(2) with any kind of evidence if there is no violation of §623(j)(1).”

A54 (emphasis in original)

14

See n. 8, supra.

15

The presence of this testing requirement mitigated the concerns of some members of Congress worried that permitting age-based

mandatory retirement of public safety employees was overly restrictive and inflexible. See 141 Cong. Rec. H3822-01 (March 28,

1995) (comments of Congressman Fawell); 142 Cong. Rec. S11922-01 (September 30, 1996) (comments of Senator Moseley-

Braun).

16

“This provision was meant to allow states to use age as a proxy for determining the physical and mental reliability of public safety

employees. The concern was that local governments were so overwhelmed with the cost of defending age-based hiring and

retirement decisions on the basis of the bona fide occupational qualification exception that Congress feared municipalities might

completely abandon these policies, and thus risk public safety.” Quinones v. City of Evanston, 829 F. Supp. 237, 242 (N.D. Ill.

1993), citing House Committee on Education and Labor, Age Diserimination Act of 1986, H.Rep. No. 756, 99th Cong., 2nd Sess.

16-17 (1986), reprinted in 1986 U.S.C.C.A.N. 5628, 5640-42. See Kopec v. City of Elmhurst, 193 F.3d 894, 897 (7th Cir. 1999)

(specifically referring to the initial 1986 exemption as a “grace Period”); Knight v. Georgia, 992 F.2d 1541, 1544 (11th Cir. 1993)

(describing 1986 exemption as relief from BFOQ-based litigation).

17

If HHS were to promulgate testing guidelines tomorrow, by the plain language of the statute, the City would be required to

immediately implement their use in lieu of its mandatory retirement scheme. Plaintiffs note that other entities, have successfully

created physical fitness tests designed to measure physical fitness rather than age. Gately, 1998 WL 518179 at *2 (test

development process collaboratively undertaken by the parties).

18

The Distriet Court, exercising the utmost caution before ruling on defendant’s motion to dismiss, required plaintiffs, sua sponte, to

demonstrate that they had factual support for their subterfuge allegations. The Distriet Court considered plaintiffs’ additional

factual narration without converting defendant’s motion to dismiss to one for summary judgrnent. A21, n.6, citing Forseth v.

Village of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). Plaintiffs agree with this conclusion, particularly in light of the faet that their

factual presentation was made in response to the Court’s directive. Drnek R. 41, 4-5.

19

Plaintiffs’ complaints specifically alleged, inter alia, that by enacting and enforcing the [MRO] for improper purposes, and in

terminating their employment, defendant and its agents have willfully and intentionally discriminated against plaintiffs and the

class on the basis of their age in a manner that acts as a subterfuge of the ADEA. Minch R. 1 ¶¶22, 23, 27; Drnek R. 6 ¶¶15, 19.

20

The plain meaning of the term “subterfuge” is “a scherne, plan, stratagem, or artifice of evasion.” Betts, 492 U.S. at 167.

21

Congress reacted to Betts by passing the Older Workers Benefit Proteetion Aet (“OWBPA”), Pub.L. No. 101-433, 104 Stat. 978

(1990) (codified as arnended at 29 U.S.C. §§ 626, 630 (2000)), and rescinding the portion of the ADEA including the term

“subterfuge” that Betts (and Bell) construed. Some courts, interpreting residual “subterfuge” clauses in the ADEA (including

§623(j)) and the Americans with Disabilities Act, 42 U.S.C. § 1213 1, have held that Congress’ retention of the term “subterfuge”

in these clauses indicates that Congress intended the Betts analysis to stand. See e.g., Knizht, 992 F.2d 1541 at 1545-46. Other

courts, however, caution that Congressional inaction should not be relied upon in statutory interpretation. Central Bank of Denver,

N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 187 (1994). The Seventh Circuit appears to have completely rejected

23

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the Betts subterfuge analysis. Solon, 180 F3d at 849. The City’s reliance on Bell seerns especially misplaced. Bell concerned the same invalidated provision of the ADEA as addressed in Betts. 975 F.2d at 424. Even though Bell was decided after the OWBPA was in place, the only reason it considered the invalidated provision was because the OWBPA was not retroactive. Id.

22

In their appellate brief, the City admits that plaintiffs made substantive allegations: “[T]he only substantive provision of the ADEA

even remotely invoked by [plaintiffs’] caims was the prohibition on age-based discharge.” Br. at 44. Defendant cannot have it both

ways, first saying plaintiffs have never made a substantive allegation, and then dismissing the substantive allegation it admits

plaintiffs have alleged.

23

SeeSenate Report No. 101-263, 1990 U.S.C.C.A.N. 1509, 1510, 1535.

24

Even before these amendments to the OWBPA, this Circuit held that defendant has the “burden of production and persuasion on

both [elements of the defense]” that a benefit plan is “part of a bona fide employee benefit plan” and “is not a subterfuge to evade

the purposes, of [the ADEA].” Karlen v. City Colleges of Chicago, 837 F.2d 314, 318 (7th Cir 1988).

25

The City also suggests that Congress intended the exemption to remain in place, rather than use fitness tests, in part due to

concerns that fitness tests would give rise to discriminatory impacts on women and minorities. Br. at 41-42. This was raised during

debate over an earlier version of the bill than what was eventually passed. However, this purported defect was cured when the bill

that became law made fitness testing mandatory as soon as HHS developed nondiscriminatory tests.

26

See e.g., Karlen, 837 F.2d at 319 (In analyzing safe harbor protection under §4(f)(2)(now 29 U.S.C. §623(f)(2)), the Court

explained “where, as in the present case, the employer uses age-not cost, or years of service, or salary - as the basis for varying

retirement benefits, he had better be able to prove a close correlation between age and cost if he wants to shelter in the safe harbor

of section 4(f)(2).”)

27

The City asserts that “legislative history makes clear that section 623(j) reflects Congress’ willingness to presume that mandatory

retirement of police and fire personnel benefits the public safety rather than require public employers to prove that relationship.”

Br. at 4 I. It is worth noting that the City’s citations to legislative history on this point all relate to HR 849 and S 553, bills which

were never enacted into law. Indeed, those bills did not include the fitness testing provisions which were referenced in the body of

the exemption in the final bill that did pass, HR 3610.

28

Congress obviously did not create the exemption so that states and municipalities could create mandatory retirement schemes for

all employees; it confined the exemption’s application to employment action related to public safety employees. Had public safety

not been the primary motivation, Congress might not have been as precise.

29

The City’s example of an appropriate allegation of subterfuge is based upon a theoretical scenario where “a municipality enacted a

mandatory retirement ordinance requiring police officers to retire at age 63, but at the same time created a new, lower-paying

position and gave all mandatorily retired police officers preference for the newly created position.” Br. at 52. The City refers to this

as a claim that the ordinance was “designed to circumvent the ADEA’s prohibitions on age-based discrimination in compensation.”

Br. at 52. The same statute that forbids age-based discrimination in compensation, 29 U.S.C. §623(a), also forbids discrimination

in “terms and conditions of employmentt” including forced retirement. If an allegation that a violation of one element of §621 (a) is

a properly-pled allegation of subterfuge according to the City, plaintiffs’ allegation must logically be one as well.

30

Plaintiffs again note that most of the case law cited in this brief and in defendant’s brief where subterfuge was not found was

decided at the summary judgment stage, when the evidentiary record had been fully developed. Where, as here, the sufficiency of

plaintiffs’ complaint is at issue, there should be no dismissal where a claim of subterfuge has been sufficiently pled. Glennon, 2000

WL 1230494 at *3.

31

The Karlen case, 839 F.2d at 319-20, like EEOC v. Home Insurance Co., 672 F.2d 252 (2nd Cir. 1982) (a case relied upon by the

Distriet Court in denying the City’s motion to dismiss) concerned “subterfuge” prongs that have been subsequently removed from

the ADEA. The analysis of subterfuge in those cases is gennane to the instant litigation. Unlike Betts and Bell, the Seventh Circuit

has not rejected the analysis of the term “subterfuge” in Karlen or Home Insurance. Therefore, contrary to the City’s assertions,

Betts and Bell have not rendered Karlen or Home Insurance “obsolete.” Br. at 33.

32

See Karlen, 837 F.2d at 320.See also Pitasi v. Gartner Group, Ine., 184 F.3d 709, 715 (7th Cir. 1999) (In a case examining

subterfuge, as that term was used in an earlier iteration of the ADEA referring to all early retirement plans, the Seventh Circuit

demanded a faet-based inquiry where subterfuge has been alleged. “Wc have made clear that neither retirement nor offers of early-

24

Donald DRNEK, James D. Minch, Richard A. Graf and..., 2002 WL 32307759...

retirement incentives support an inference of age discrimination and that it is the conditions slirrounding the offer, rather Man the offer of early retirement, Mat count in considering whether the ADEA is violated. (Emphasis supplied.); EEOC v. City Colleges of Chicago, 944 F.2d 339, 342 (7th Cir 1991)(under same early retirement “subterfuge” prong, the Court noted “[J]ust as the illegality of the seniority system in Lorance [v. AT&T Technologies, Inc., 490 U.S. 900 (1989)] depended on a finding that the employer adopted it with the intent to discriminate, the illegality of City Colleges’ retir ement plan depended on City Colleges’ intent at adoption that the plan be a means of discriminating against older employees regarding sore nonfringe-benefit aspect of the employment relationship.” (Emphasis supplied.) (Although abrogated by statute, 42 U.S.C. §2000e-5 e-2, Huels v. Exxon Co. USA, Ine., 121 F3d 1047, 1050 (7th Cir. 1997); holds reasoning remains persuasive outside of Title VII context.)

33

In addition, the City attempts to further complicate the issue by suggesting that plaintiffs must demonstrate that a majority of

legislators share an improper motivation in order to expose a municipality to liability. Br. at 49. The City’s argument rests on an

unstable foundation. First of all, in contradiction to the City’s professed reliance on Pacific Gas, the Eleventh Circuit cases the City

cites in support of its “majority” proposition, contrary to the City’s arguments, actually presume that it is permissible to look into

legislative motivation. Matthews v. Columbia Coun 294 F.3d 1294, 1297 (11th Cir. 2002); Mason v. El Portal, 240 F.3d 1337,

1339 (11th Cir. 2001). Furthermore, these cases concern constitutional caims under § 1983, and thus implicate state action. The

doctrine there involves the conditions under which a municipality can be held liable for the actions of its agents, and the doctrine

asserts that only those with “final policy-making authority” are the actors who can put a municipality in j jeopardy of violating

someone’s constitutional rights. See Church v. Huntsville, 30 F.3d 1332, 1343 (11th Cir. 1994). ADEA cases, however, are

distinguishable since the municipality, as employer, is subject to the law like any other employer. Hence the employer-municipality

need not meet the requirements of state action doctrine to be found liable for violating the ADEA. Thus, the motives of important

decision-makers of the employer are relevant to show suspect motives, without requiring that all, or a majority, of the people

involved held improper motives. Hunt, 219 F.M at 652.

34

WHEREAS, The safety of the citizens of the City of Chicago is of the utmost concern to the City Council of the City of Chicago;

and

WHEREAS, The citizens of the City of Chicago deserve the most effective police and fire protection possible; and

WHEREAS, The City Council finds that tliese goals are served by returning to the mandatory retirement age of sixty-three which

had historically applied to sworn police and unifonned firefighters; and

WHEREAS, Both the Illinois legislature and United States Congress have recognized the necessity of allowing municipalities to

institute mandatory retirement for police and fire personnel;

[...]

Journal of Proceedings in the Chicago City Council Journal, May 17, 2000, 32900-32901.

35

The City argued that because the prearnble to the MRO cites “Public safety” as its purpose, the inquiry stops there, and no probe

may be made to test the City’s true motivation in passing the Ordinance. Br. at 51; Minch R. 7; Dmek R. 10 at 11-12; Drnek R. 41,

10:13 -10:20.

36

Taking the City’s argument to its logical extreme, with no inquiry into legislative motivation, the only possible way a mandatory

retirement scherne could violate the “subterfuge” provision of 29 U.S.C. §623(j) is if it said on its face that it was being

implemented as a subterfuge to evade the purposes of the ADEA - a disfavored result.

25

 
 In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2587
JAMES D. MINCH, RICHARD A. GRAF, and RICHARD COSENTINO,
Plaintiffs-Appellees, v.
CITY OF CHICAGO,
Defendant-Appellant. ____________

No. 02-2588 DONALD DRNEK,

Plaintiff-Appellee, v.

CITY OF CHICAGO,

Defendant-Appellant.

____________
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 01 C 0840 & 01 C 2586—Elaine E. Bucklo, Judge.
____________
ARGUED FEBRUARY 28, 2003—DECIDED April 9, 2004 ____________

Before POSNER, MANION, and ROVNER, Circuit Judges.

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ROVNER, Circuit Judge. In 1996, Congress restored to the Age Discrimination in Employment Act (“ADEA”) an exemption permitting state and local governments to place age restrictions on the employment of police officers and firefighters. See 29 U.S.C. § 623(j) (1994 & Supp V 1999). Four years later, the Chicago City Council exercised its authority under this exemption to reestablish a mandatory retirement age of 63 for certain of the City’s police and firefighting personnel. Police officers and firefighters who were subject to the age restriction filed two suits asserting in relevant part that the reinstated mandatory retirement program amounted to subterfuge to evade the purposes of the ADEA. See § 623(j)(2). Although the text of the City’s ordinance indicated that the City was reestablishing a mandatory retirement age in furtherance of public safety, the plaintiffs asserted that in truth the City, as evidenced by the remarks of certain City Council members and City officials, acted out of bias against older workers and a desire to open positions on its police and firefighting forces for younger and more diverse individuals. The City moved to dismiss the complaints, contending that the plaintiffs had failed to state a claim of age discrimination on which the court could grant relief. The district court denied the motion, reasoning that if the plaintiffs could prove that the City reinstated a mandatory retirement age for discriminatory reasons, the mandatory retirement program would amount to a subterfuge to evade the purposes of the ADEA. Drnek v. City of Chicago, 192 F. Supp. 2d 835 (N.D. Ill. 2002) (“Drnek I”). The court subsequently certified for interlocutory appeal the question of whether there is any evidence through which a plaintiff might prove that a mandatory retirement program, so long as it satisfies the other criteria specified by the statutory exemption, see § 623(j)(1), constitutes a subterfuge to evade the purposes of the ADEA. Drnek v. City of Chicago, 205 F. Supp. 2d 894, 900 (N.D. Ill. 2002) (“Drnek II”). Although we answer that question in the affirmative, we conclude that the particular

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theory of subterfuge that the plaintiffs pursue in this case is not viable. We accordingly remand with directions to dismiss their ADEA claims.

I.
Historically, Chicago, like many other state and local governments, has placed age limits on the employment of its police and firefighting personnel. As early as 1939, for example, Chicago’s municipal code required city firefighters to retire at the age of 63.
As it was originally enacted in 1967, the ADEA by its terms did not apply to the employees of state and local governments. Congress amended the statute to include those employees in 1974. P.L. 93-259 § 28(a)(2), 88 Stat. 55, 74 (April 8, 1974). However, in view of the Tenth Amendment jurisprudence of the day, see National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S. Ct. 1005 (1985), the constitutional validity of the amendment remained in doubt until 1983, when the Supreme Court held in E.E.O.C. v. Wyoming, 460 U.S. 226, 103 S. Ct. 1054 (1983), that the Tenth Amendment posed no obstacle to banning age discrimination by state and local governments.1 State and local rules establishing maximum

1 More recently, of course, the Supreme Court has held that Congress exceeded its authority under the enforcement clause of the Fourteenth Amendment when it purported to abrogate the States’ Eleventh Amendment immunity from suit by private individuals under the ADEA. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 120 S. Ct. 631 (2000). That holding does not affect the plaintiffs’ suits against the City, however, as the Eleventh Amendment does not apply to municipalities. See Lake Country
(continued...)

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hiring and retirement ages for police officers and firefighters were now vulnerable to challenge; only if it could be shown that age was a bona fide occupational qualification for these positions would the rules survive scrutiny under the ADEA. See Kopec v. City of Elmhurst, 193 F.3d 894, 897 (7th Cir. 1999). The Equal Employment Opportunity Commission (“E.E.O.C.”) began to challenge these age limits as discriminatory. Chicago, seeing the handwriting on the wall, raised the mandatory retirement age for its firefighters and police officers to 70, the maximum age at which employees enjoyed the protection of the ADEA at that time.2
Responding to the concerns expressed by state and local governments, Congress in 1986 amended the ADEA to exempt the mandatory retirement of state and local police and firefighting personnel from the statute’s coverage. P.L. 99-592 §§ 3, 4, 100 Stat. 3342, 3342-43 (Oct. 31, 1986). As we noted in Kopec, Congress enacted the exemption in recognition that there was, as of that time, no consensus as to the propriety of age limits on employees working in the realm of public safety. 193 F.3d at 903-04. The exemption thus permitted any state or local government which, as of March 3, 1983 (the day after the Supreme Court decided E.E.O.C. v. Wyoming), had in place age restrictions on the employment of police officers and firefighters, to restore

(...continued)
Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401 & n.19, 99 S. Ct. 1171, 1177 & n.19 (1979); Nelson v. LaCrosse County Dist. Atty., 301 F.3d 820, 827 n.7 (7th Cir. 2002); Richman v. Sheehan, 270 F.3d 430, 439 (7th Cir. 2001).
2 Congress later amended the ADEA to remove age 70 as the maximum age at which the statute applied. See P.L. 99-592 § 2(c)(1), 100 Stat. 3342, 3342 (Oct. 31, 1986).

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those restrictions.3 In 1988, Chicago took advantage of the exemption and reinstated a mandatory retirement age of 63 for its firefighters and police officers.
Pursuant to a sunset provision in the 1986 legislation, the exemption permitting the reinstatement of these age limits expired at the end of 1993. P.L. 99-592 § 3(b), 100 Stat. 3342, 3342. In the ensuing years, Chicago, along with other state and local governments, were again compelled to drop their age restrictions on the employment of police and firefighting personnel.

3 The exemption provided that “[i]t 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, and
(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.
29 U.S.C. § 623(j) (1988).
The 1986 legislation also called upon the United States Secretary of Labor and the E.E.O.C. to study the feasibility of examining police and firefighting personnel for physical and mental fitness as an alternative to age limitations on their employment. P.L. 99-592 § 5, 100 Stat. 3342, 3343. The legislation further directed the E.E.O.C. to propose guidelines for the administration of such physical and mental assessments. Id. Although a feasibility study was completed, no guidelines for the administration of fitness testing for such workers were ever proposed. See Kopec, 193 F.3d at 897 n.1.

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In 1996, however, Congress reinstated the exemption, this time without any sunset provision, and retroactively to the date that the prior exemption had expired in 1993. P.L. 104208 §§ 119(1)(b), 119(3)(b), 110 Stat. 3009, 3009-23 - 300925 (Sept. 30, 1996); see Kopec, 193 F.3d at 898. The 1996 legislation also broadened the exemption, allowing cities and states which had not imposed age restrictions on their police and firefighters prior to the Wyoming decision to enact such limits. As relevant here, the exemption, codified at 29 U.S.C. § 623(j),4 permits a public

4 The 1996 exemption provides as follows: (j) Employment as firefighter or law enforcement officer.

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, the employer has complied with section 3(d)(2) of the Age Discrimination in Employment Amendments of 1996 if the individual was discharged after the date described in such section, and the individual has attained—

(A) the age of hiring or retirement, respectively, in effect under applicable State or local law on March 3, 1983; or

(B) (i)

if the individual was not hired, the age of hiring in effect on the date of such failure or refusal to hire under applicable State or local law enacted after September 30, 1996; or

(ii) if applicable State or local law was enacted after September 30, 1996, and the individual was discharged, the higher of—
(continued...)

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(...continued)

(I) the age of retirement in effect on the date of such discharge under such law; and

(II) age 55; and

(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.

29 U.S.C. § 623(j) (1994 & Supp. V. 1999).

In the 1996 legislation, Congress also directed the Secretary of Health and Human Services to study and report to Congress within three years on the feasibility of testing the ability of police and firefighters to complete public safety tasks. Within four years, the Secretary was to issue advisory guidelines for the use and administration of tests designed to gauge the mental and physical competence of police and firefighting personnel. After those guidelines were issued, the Secretary was further directed to issue regulations identifying appropriate tests that a state or local government could use to evaluate the fitness of police officers and firefighters who had reached the mandatory retirement age specified by that government. Once those regulations were in place, state and local governments would be compelled to give their public safety personnel the opportunity to demonstrate their continued fitness for duty once they reached retirement age. P.L. 104-208 § 119(2), 110 Stat. at 3009-24 - 3009-25; see Kopec, 193 F.3d at 898 n.2. To date, however, no such guidelines or regulations have been issued.

The failure to promulgate guidelines and regulations for fitness testing gives rise to an ambiguity in the statute. Section 623(j)(1) purports to condition applicability of the exemption on the state or local government’s compliance with section (3)(d)(2) of the 1996 amendment. This is an apparent reference to the fitness guidelines and regulations that the Secretary of Health and Human Services was directed to promulgate. See Drnek I, 192 F. Supp. 2d at 838-39. As no such guidelines and regulations have yet been issued, state and local governments obviously cannot comply with them. Consequently, this component
(continued...)

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employer to discharge a police officer or firefighter based on his age, subject to two principal conditions. First, section 623(j)(1) specifies that the employee must have attained either the age of retirement that the state or municipality had in place as of March 3, 1983 or, if the age limit was enacted after the date the 1996 exemption took effect, the higher of the retirement age specified in the post-1996 enactment or the age of 55. Second, section 623(j)(2) requires that the state or city discharge such an employee pursuant to a bona fide retirement plan that is not a subterfuge to evade the purposes of the statute.
Four years later, the Chicago City Council adopted a mandatory retirement ordinance (“MRO”) reinstating a mandatory retirement age of 63 for its police officers and for its uniformed firefighting fire personnel.5 In the pre-

(...continued)
of section 623(j)(1) is essentially meaningless at this juncture. As the district court summarized, “The provision in § 623(j)(1) for compliance with § 3(d)(2) merely imposed an obligation on employers to provide [fitness] tests when and if suitable tests became available; it did not make tests a condition precedent to the operation of the exception. Because HHS has not promulgated the regulations called for by the statute, the City could not violate § 623(j)(1) by failing to provide fitness tests before enforcing the [Mandatory Retirement] Ordinance.” Id. at 842.
5 In relevant part, the City’s Municipal Code, as amended by the MRO, reads:
(a) Effective December 31, 2000, the age of 63 shall be the maximum age for employment of sworn members of the police department, including a sworn member who is transferred or appointed to a supervisory or administrative position.
(b) Effective December 31, 2000, the age of 63 shall be the maximum age for employment of any member of the uniformed service of the fire department, the duties of whose
(continued...)

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amble to that ordinance, the City Council indicated that
its purpose in restoring the retirement age was to protect the safety of Chicago residents.6

(...continued)
position are primarily to perform work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment, including an employee engaged in this activity who is transferred or appointed to a supervisory or administrative position. . . .
* * *
(d) All persons to whom this ordinance applies shall be retired upon attainment of age 63. Any person to whom this ordinance applies whose age is 63 or more on December 31, 2000 shall be retired upon that date.
***
Municipal Code of Chicago § 2-152-410 (Lexis Nexis 2001).
6 The preamble to the MRO stated:
WHEREAS, The Safety of the citizens of the City of Chicago is of the utmost concern to the City Council of the City of Chicago; and
WHEREAS, The citizens of the City of Chicago deserve the most effective police and fire protection possible;
WHEREAS, The City Council finds that these goals are served by returning to the mandatory retirement age of sixtythree which had historically applied to sworn police and uniformed firefighters; and
WHEREAS, Both the Illinois Legislature and United States Congress have recognized the necessity of allowing municipalities to institute mandatory retirement for police and fire personnel;
. . . .
Journal of Proceedings in the Chicago City Council Journal, May 17, 2000, 32900-32901.

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The four plaintiffs were Chicago police officers and uniformed firefighters who were 63 or greater when the MRO took effect and thus were forced to take immediate retirement. They filed two actions against the City asserting, in relevant part, that the City was not actually motivated by public safety purposes in enacting the MRO. The cases were consolidated in the district court. Although the plaintiffs do not dispute at this juncture that the MRO and their involuntary retirement pursuant to the MRO satisfy the criteria set forth in section 623(j)(1), they allege that the MRO amounts to a subterfuge to evade the purposes of the ADEA and for that reason amounts to illegal age discrimination. Among other motives for enacting the MRO, the plaintiffs assert, the City wanted to get rid of what one city council member described as “old-timers” and “deadbeats” in the police and fire departments and to make room in those departments for younger, more racially and ethnically diverse individuals who would work harder and bring “fresh” ideas with them. This amounts to age discrimination in violation of the ADEA, in the plaintiffs’ view.
The district court denied the City’s motion to dismiss the plaintiffs’ ADEA claims. Drnek I, 192 F. Supp. 2d at 843-46. In the court’s view, the question of whether the city reinstated a mandatory retirement age of 63 as a subterfuge for age discrimination was one of fact that necessitated inquiry beyond the statement of purpose set forth in the preamble to the MRO into the true motive or motives behind the legislation. Id. at 844-45. “Age-based retirement is tolerated in limited circumstances under § 623(j), but not for the wrong reasons, i.e. not for reasons that are merely a coverup for the type of ageism prohibited by the ADEA.” Id. at 845. Here, the plaintiffs were able to point to the remarks of the sponsor of the MRO and of high-ranking city officials as proof that the City may have been motivated impermissibly by stereotypes and bias against older members of the police and fire departments when it enacted

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the MRO. The plaintiffs also represented that the City had delayed reinstating the retirement age of 63 until after a close friend of the Mayor (who otherwise would have been forced to retire) voluntarily retired at age 68. The district court found these allegations, suggesting that the City did not actually enact the MRO for legitimate, safety-related reasons, sufficient to state a viable claim for subterfuge. Id. at 843-46.
On reconsideration, the court distinguished Bell v. Purdue Univ., 975 F.2d 422 (7th Cir. 1992), in which this court had rejected a claim of subterfuge notwithstanding evidence of an employer’s animus toward older employees. Bell dealt with an employer’s practice of ceasing pension fund contributions on behalf of an employee once he or she reached the age of 65. The relevant version of the ADEA contained an exception permitting age-based decisions in employee benefit programs so long as they were not a subterfuge to evade the purposes of the statute. See 29 U.S.C. § 623(f)(2) (1982). Looking to the Supreme Court’s decision in Public Employees Retirement Sys. of Ohio v. Betts, 492 U.S. 158, 109 S. Ct. 2854 (1989), we concluded that an age-based differential in fringe benefits would not amount to a subterfuge unless the employer used that differential to camouflage age discrimination in some distinct aspect of the employment relationship—i.e., other than with respect to fringe benefits. Bell, 975 F.2d at 430. The City argued that here, as in Bell, there was no case to be made that it had taken advantage of a statutory exemption that expressly allowed mandatory retirement in order to commit some other type of age-based discrimination forbidden by the statute.
The district court acknowledged that “[t]here is some consistency between the City’s interpretation here and the Betts/Bell interpretation.” Drnek II, 205 F. Supp. 2d at 898. However, the court was concerned that applying the Betts/Bell approach in the context of mandatory retirement

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would render the subterfuge provision of section 623(j)(2) “if not dead, at least moribund.” Id. Whereas the exception at issue in Betts and Bell concerned only fringe benefits, leaving all other aspects of the employment relationship protected by the ADEA’s ban on arbitrary age discrimination, section 623(j) permits an employer to terminate a worker’s employment altogether, leaving nothing in the employment relationship for the statute to protect. Id. Thus, a view of subterfuge that required the plaintiff to show that mandatory retirement is being used as a cover for some type of age discrimination other than age-based discharge would render the “not a subterfuge” language of section 623(j)(2) “utterly meaningless.” Id. at 899. The court therefore declined to apply Bell’s rationale to this case. It remained convinced that if the City had reinstated mandatory retirement with the aim of clearing older employees from the ranks of firefighters and police officers in order to make room for younger workers, as the plaintiffs alleged, that discriminatory purpose in and of itself would establish a subterfuge within the meaning of section 623(j)(2). Id.
Recognizing that there was room for disagreement on the issue, however, the court granted the City’s request to certify a question for interlocutory review. See 28 U.S.C. § 1292(b). The City had asked the court to certify the question “whether allegedly illicit motives on the part of individual legislators and municipal officials for enacting a retirement plan that mandatorily retires police and fire personnel at age 63 and results in their replacement with younger workers can demonstrate subterfuge under section 623(j) of the ADEA.” The court rejected this as an appropriate question, “because it is too early in the lawsuit to determine that this is the only type of evidence of subterfuge that the plaintiffs could discover.” Drnek II, 205 F. Supp. 2d at 899 (emphasis in original). At the same time, the court was forced to wonder what proof might suffice to establish subterfuge. If, as the City contended, evidence of

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impure motives for enacting the MRO did not suffice, and if, as the court believed, it was essentially impossible for a plaintiff to establish the type of subterfuge envisioned by Betts and Bell, then as a practical matter, there was no way to show that a mandatory retirement program constituted a subterfuge to evade the purposes of the ADEA. In effect, so long as a mandatory retirement program satisfied the basic eligibility criteria set forth in section 623(j)(1), the program would be immune from challenge as a subterfuge. See id. at 898-99. The court thus opted to certify a broader question than the City had proposed, asking “whether a plaintiff can demonstrate subterfuge under § 623(j)(2) with any kind of evidence if there is no violation of § 623(j)(1).” Id. at 900 (emphasis in original).

II.
This appeal calls upon us to consider under what circumstances a mandatory retirement program for public safety personnel might constitute a subterfuge to evade the purposes of the ADEA. The question certified by the district court asks whether there is any evidence with which a plaintiff can demonstrate subterfuge under section 623(j)(2) if there is no violation of section 623(j)(1). We agree with the district court that subterfuge can be shown even if the requirements of subsection (j)(1) are satisfied. A plaintiff can establish subterfuge if he or she can demonstrate that a state or local government took advantage of the exemption and imposed a mandatory retirement age for police and firefighting personnel in order to evade a different substantive provision of the statute. However, because the ADEA expressly permits employers like Chicago to reinstate mandatory retirement programs for police and fire personnel and thus to discharge employees based on their age, proof that local officials exercised this right for impure motives will not in and of itself suffice to establish subter-

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fuge for purposes of section 623(j)(2). Given that the plaintiffs’ theory of subterfuge in these cases relies solely on proof that Chicago City Council members and other City officials may have harbored discriminatory attitudes about older workers when they reinstated a mandatory retirement age of 63 for police officers and firefighters and that they adopted the MRO for illicit motives unrelated to public safety, the plaintiffs have failed to state an ADEA claim on which relief may be granted.
The ADEA itself does not specify what constitutes a “subterfuge to evade the purposes” of the statute, and the Supreme Court has not specifically addressed that question within the confines of section 623(j)(2). However, the Supreme Court’s decision in Betts and our own decision in Bell have considered the meaning of “subterfuge” for purposes of a similar provision of the ADEA, since revised. The language of section 623(j)(2) appears to have been modeled after (and is virtually identical to) the language construed in Betts and Bell, see Knight v. Georgia, 992 F.2d 1541, 1545 (11th Cir. 1993), and so we look to those cases for guidance as to what might constitute a subterfuge for purposes of section 623(j)(2). See Trans World Airlines v. Thurston, Inc., 469 U.S. 111, 121, 105 S. Ct. 613, 621 (1985); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S. Ct. 2066, 2071 (1979).
At issue in Betts was the validity of an age-based disability retirement program for state and local government employees in Ohio. Under the terms of that program, an employee who became permanently disabled before the age of 60 was eligible for disability retirement benefits, which amounted to a minimum of 30 percent of her final average salary. Employees who became disabled after the age of 60, however, were eligible only for standard retirement benefits based on their age and years of service. No floor applied to those benefits, so that an employee who became disabled after the age of 60 could (depending on her age and

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length of service) receive retirement benefits amounting to substantially less than 30 percent of her final average salary. The plaintiff in Betts had a medical condition that forced her to retire at age 61, and her monthly benefits under the standard retirement program were about half what they would have been had she been eligible for the age-restricted disability retirement benefits. She filed suit contending that the age ceiling of 60 that the program placed on disability retirement benefits violated the ADEA’s ban on age discrimination.
At the time that Betts was decided, the ADEA contained a provision exempting from the statute’s ban on age discrimination any bona fide employee benefit plan, including a retirement and pension plan, so long as the plan was not a subterfuge to evade the purposes of the statute. 29 U.S.C. § 623(f)(2) (1982). The parties in Betts conceded that the disability retirement plan at issue was bona fide, and as the Supreme Court noted, that plan fell squarely within the exemption. 492 U.S. at 166, 109 S. Ct. at 2860-61. Thus, only if the plan amounted to a subterfuge to evade the purposes of the statute would it be illegal. Interpretive regulations issued by the Department of Labor and the E.E.O.C. indicated that fringe benefit programs awarding different levels of benefits based on age were not a subterfuge so long as the age distinctions were cost-justified. Relying in part on those regulations, the lower courts had concluded that Ohio’s disability retirement program amounted to a subterfuge to evade the purposes of the ADEA because the state could point to no cost justification or other substantial business purpose for restricting eligibility to persons who became disabled before reaching the age of 60. Betts v. Hamilton County Bd. of Mental Health Retardation, 631 F. Supp. 1198 (S.D. Ohio 1986), aff’d, 848 F.2d 692 (6th Cir. 1988). The Supreme Court reversed.

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At the outset of its analysis, the Supreme Court rejected the notion, reflected in the interpretative regulations, that an age-based distinction in employee benefits could only survive scrutiny under the ADEA if the employer were able to establish a cost justification for the distinction— i.e., that providing the benefit to older workers would burden the employer with added costs. In the court’s view, such a requirement could not be squared with the plain language of the statutory exemption for fringe benefit plans, which said nothing about such a justification. 492 U.S. at 169-172, 109 S. Ct. at 2862-64. Although the plaintiff pointed to support in the legislative history for the notion that the exemption should be limited to age-based distinctions that were cost-justified, the Court saw no need to resort to legislative history, as the statutory language was clear: line-drawing based on age was permitted in a fringe benefit program so long as the program did not constitute a subterfuge to evade the purposes of the statute. See id. at 172, 109 S. Ct. at 2864.
The term, “subterfuge,” in the Court’s view, should be given its ordinary meaning, id. at 168, 109 S. Ct. at 2862, i.e., “a scheme, plan, stratagem, or artifice of evasion,” id. at 167, 171, 109 S. Ct. at 2861, 2863 (quoting United Air Lines, Inc. v. McCann, 434 U.S. 192, 203, 98 S. Ct. 444, 450 (1977)). The Court observed that the purposes of the ADEA include promoting the employment of older persons based on ability rather than age, prohibiting arbitrary age discrimination in employment, and helping employers and workers ascertain means of addressing difficulties arising from the impact of age upon employment. Id. at 175-76, 109 S. Ct. at 2866 (quoting 29 U.S.C. § 621(b)). The only one of these purposes that the retirement plan at issue could be a subterfuge to evade would be the elimination of arbitrary age discrimination in employment. Id. at 176, 109 S. Ct. at 2866. But not all age discrimination is arbitrary, the Court pointed out, for the ADEA itself sets out various exemptions

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from and affirmative defenses to its coverage. Ibid. In order to determine whether a particular practice is arbitrary, and therefore contrary to the purposes of the ADEA, one must look for guidance to the substantive provisions of the statute, which “provide the best evidence of the nature of the evils Congress sought to eradicate.” Ibid. The statute does prohibit age-based discrimination in compensation and the other terms, conditions or privileges of employment, see 29 U.S.C. § 623(a)(1), and that provision could be construed to reach employee benefit plans. Id. at 176-77, 109 S. Ct. at 2866. One thus could say that any retirement or other employee benefit plan restricting eligibility based on age constitutes a form of age discrimination in the terms and conditions of employment and to that extent amounts to a subterfuge to evade the statutory purpose of prohibiting such arbitrary discrimination. Id. at 177, 109 S. Ct. at 2866. But that view obviously would render the statutory exemption for benefit programs “nugatory.” Ibid. On the other hand, one could read the exemption and its “not a subterfuge” criterion to permit age-based line drawing in a fringe benefit program such as a disability retirement plan, so long as the plan does not discriminate “in other, non-fringe benefit aspects of the employment relationship.” Id. at 177, 109 S. Ct. at 2866. This alternate construction, the Court reasoned, would give effect both to the broad ban on arbitrary age discrimination in employment and to the exemption for bona fide employee benefit plans. Id. at 177, 180, 109 S. Ct. at 2866-67, 2868.
The Court postulated two scenarios in which an employee benefit plan might be considered an effort to evade the purposes of the ADEA. In the first scenario, an employer implements a provision in a benefit plan that has the effect of penalizing an employee who has spoken out against practices made unlawful by the ADEA. In that instance, the plan could be viewed as a means of retaliating against the employee for asserting his statutory rights, something

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which is forbidden by the anti-retaliation provision of the statute. Id. at 180, 109 S. Ct. at 2868; see 29 U.S.C. § 623(d). In the second scenario, the employer reduces the salaries of all workers while substantially increasing fringe benefits for younger workers. There too, the terms of the fringe benefit plan could be viewed as an effort to accomplish something that the statute expressly forbids—paying younger workers higher wages than older workers, based solely on age. Ibid.; see 29 U.S.C. § 623(a)(1). These examples sufficed to demonstrate that the subterfuge provision, construed as the Court thought it should be, provided “notinsignificant protections” to older workers while at the same time preserving a safe harbor for bona fide employee benefit plans. Ibid.
The Court therefore sustained Ohio’s age-based disability retirement plan notwithstanding the lack of proof that the age cutoff of 60 was justified by cost considerations. The statutory scheme placed the burden on the plaintiff to establish subterfuge, the Court observed:
[The subterfuge prong of the exemption] is not so much a defense to a charge of age discrimination as it is a description of the type of employer conduct that is prohibited in the employee benefit plan context. By requiring a showing of actual intent to discriminate in those aspects of the employment relationship protected by the provisions of the ADEA, [the subterfuge prong] redefines the elements of a plaintiff’s prima facie case instead of establishing a defense to what would otherwise be a violation of the Act. Thus, when an employee seeks to challenge a benefit plan as a subterfuge to evade the purposes of the Act, the employee bears the burden of proving that the discriminatory plan provision actually was intended to serve the purpose of discriminating in some non-fringe benefit aspect of the employment relation.

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Id. at 181, 109 S. Ct. at 2868. The plaintiff in Betts had not shown that the retirement disability plan was a vehicle for discrimination in some aspect of employment relationship other than fringe benefits, and so she had not proven that it was a subterfuge to evade the purposes of the ADEA. Id. at 182, 109 S. Ct. at 2869.
In Bell v. Purdue Univ., supra, this court considered whether a university’s practice of discontinuing contributions to pension plans for employees once they reached age 65 might constitute a subterfuge.7 Employees filed suit contending that the practice amounted to age discrimination. The university defended the practice based on the same statutory provision at issue in Betts, exempting a bona fide fringe benefit plan from the statutory ban on age discrimination so long as it was not a subterfuge to evade the purposes of the ADEA. This court found Betts controlling, and, accordingly, it looked for proof that the university’s practice of cutting off pension fund contributions at age 65 reflected an effort to discriminate in other aspects of the employment relationship. 975 F.2d at 425-26, 428-29. We found no evidence to support such a finding.
Although the plaintiffs in Bell highlighted “statements and anecdotal evidence that some officials at Purdue preferred younger faculty,” id. at 429, we found this evidence insufficient to support the claim of subterfuge. Arguably the evidence spoke to the university’s motives for cutting off pension contributions for older employees—the plaintiffs held it up as proof that the cutoff was adopted as a way to

7 An amendment to the ADEA which took effect after the plaintiffs filed suit required an employer to continue contributing to a pension fund on an employee’s behalf until the employee actually retired. P.L. 99-509 § 9201, 100 Stat. 1973, 1973-74 (Oct. 21, 1986); see Bell, 975 F.2d at 423. Bell thus addressed the legality of the university’s practice with respect to pension fund contributions prior to the effective date of the amendment. Id.

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Nos. 02-2587 & 02-2588

discourage faculty members from staying on past the age of 65. But we made clear that “the defendants cannot be liable for their motives if their conduct has not evaded the ADEA’s prohibitions.” Id. And the plaintiffs could point to nothing suggesting that the university was using the contribution cutoff as a way to alter the wages of older employees, or alternatively to force their retirement or otherwise diminish their employment prospects. Id. at 429-30. “The plaintiffs . . . have offered no evidence that the fringe benefit cut in this case is anything more than meets the eye—an age differential in fringe benefits which is permitted under the ADEA.” Id.
Here, the plaintiffs urge us to disregard the approach to subterfuge set out in Betts and followed by this court in Bell. The Older Workers Benefit Protection Act, P.L. 101433 § 101, 104 Stat. 978 (Oct. 16, 1990) (“OWBPA”), overruled the result in Betts, amending the ADEA so as to prohibit employers from disfavoring older workers in employee benefit programs except as justified by cost considerations. See Bell, 975 F.2d at 424 n.2. For that reason, the plaintiffs insist that the Betts approach to subterfuge is no longer valid. We disagree.
Although Congress overruled the result of Betts, the manner in which it did so is telling. Rather than supplying its own definition of what constitutes a subterfuge to evade the purposes of the ADEA, Congress elected to remove the “not a subterfuge” language altogether from the exemption for benefit programs. See P.L. 101-433 § 103, 104 Stat. 978, 978-89. That course suggests that Congress, although displeased with the result in Betts, was not attempting to supplant the Court’s approach to subterfuge. See Modderno v. King, 82 F.3d 1059, 1060-61 (D.C. Cir. 1996); Knight, 992 F.2d at 1546.
Betts itself made this same point. The Court in Betts looked to its prior decision in United Air Lines, Inc. v.

Nos. 02-2587 & 02-2588

21

McCann, 434 U.S. 192, 98 S. Ct. 444 (1977), for guidance as to what might constitute a subterfuge. McCann had concluded that a retirement plan compelling employees to stop working at the age of 60 could not constitute a subterfuge to evade the purposes of the ADEA when the plan had been adopted more than 25 years before the statute was enacted. Id. at 203, 98 S. Ct. at 450. In the interim between McCann and Betts, Congress had overruled the result in McCann by adding language to the statutory exemption for benefit plans stating that no such plan shall require or permit the involuntary retirement of any individual based on his or her age. P.L. 95-256 § 2(a), 92 Stat. 189, 189 (April 6, 1978). In view of the amendment, the plaintiff in Betts contended that McCann’s subterfuge analysis was no longer good law. The Court rejected that argument. The Court noted that Congress had not amended the statute by supplying its own definition of subterfuge or by modifying the subterfuge language; rather, it had simply added a clause forbidding mandatory retirement based on age. 492 U.S. at 168, 109 S. Ct. at 2862. The Court thus saw no reason to depart from McCann’s understanding of subterfuge. Ibid.
In section 623(j)(2), Congress has used virtually the same language that the Court construed in Betts. Indeed, Congress enacted the current version of section 623(j) in 1996, years after Betts was decided. Had Congress intended for courts to embark on a different course with respect to subterfuge, it could have made that clear in the statutory language. Accordingly, we see no signal from Congress that subterfuge should be handled differently for purposes of section 623(j)(2) than it was by the Supreme Court in Betts and subsequently by this court, following Betts’ lead, in Bell. See Knight, 992 F.2d at 1546. We note that our sister circuits, in construing similar subterfuge language contained in the Americans with Disabilities Act, 42 U.S.C. § 12201(c), have likewise continued to look to Betts as the relevant precedent on subterfuge. See E.E.O.C. v. Aramark

22

Nos. 02-2587 & 02-2588

Corp., 208 F.3d 266, 269-70 (D.C. Cir. 2000); Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 103-06 (2d Cir. 1999); Ford v. Schering-Plough Corp., 145 F.3d 601, 611 (3d Cir. 1998); Krauel v. Iowa Methodist Medical Center, 95 F.3d 674, 678-79 (8th Cir. 1996).
Among other things, Betts makes clear that the burden is on the plaintiffs to establish that the mandatory retirement of firefighters and police officers constitutes a subterfuge to evade the purposes of the ADEA. 492 U.S. at 181, 109 S. Ct. at 2868. The plaintiffs remind us that the OWBPA also overruled Betts in this regard, shifting the burden to the employer to prove that a benefit plan drawing distinctions based on age is not a subterfuge. See P.L. 101433 § 103, 104 Stat. 978, 979; e.g., Erie County Retirees Ass’n v. County of Erie, Pa., 220 F.3d 193, 204-05 (3d Cir. 2000). Once again, however, the route that Congress chose to that end is significant. Congress added language to the exemption for benefit plans expressly allocating to the employer the burden of proof on subterfuge. See § 623(f)(2) (“[a]n employer . . . shall have the burden of proving that [its] actions [in observing the terms of a benefit plan] are lawful in any civil enforcement proceeding brought under this chapter”). By contrast, it omitted such language in 1996 when it reenacted section 623(j)(2), electing instead to use language virtually identical to that before the Supreme Court in Betts. The fact that Congress elected to use language that Betts had construed to impose the burden of proof on the plaintiff leaves no doubt in our minds that Congress meant to embrace that construction. See Bragdon v. Abbott, 524 U.S. 624, 645, 118 S. Ct. 2196, 2208 (1998); Lorillard v. Pons, 434 U.S. 575, 580-81, 98 S. Ct. 866, 870 (1978); see also, e.g., Leonard F., 199 F.3d at 104. Therefore, we must proceed to consider how the plaintiffs might carry their burden within the Betts framework for subterfuge.
We may resolve one point with dispatch. In the question that the district court certified, the court asked whether

Nos. 02-2587 & 02-2588

23

there is any evidence with which a plaintiff might establish subterfuge for purposes of section 623(j)(2) if there is no violation of section 623(j)(1). If, for example, a public employer had in place age restrictions on the employment of public safety officers prior to March 3, 1983, as Chicago did, are there any circumstances under which the reinstatement or renewed enforcement of those age limits could possibly amount to a subterfuge to evade the purposes of the ADEA? The district court understood the City to be arguing that this question must be answered in the negative, foreclosing any inquiry into subterfuge. Cf. Knight, 992 F.2d at 1546-47 (because mandatory retirement age of 55 for Georgia state troopers was established in 1970, before ADEA was extended to cover state employees, the retirement age necessarily could not have been a subterfuge to evade the purposes of the ADEA); see Drnek II, 205 F. Supp. 2d at 897-98. To accept this argument as correct, the district court believed, would be to collapse the two prongs of section 623(j) and render subsection (j)(2), which contains the subterfuge language, a nullity. Id. at 898-99. We agree. Section 623(j) permits a state or local government to discharge a police officer and/ or firefighter who has reached a mandatory retirement age so long as that retirement age was in place when Wyoming was decided or (if not) the plaintiff is at least 55 years old (prong 1) and the discharge is effectuated pursuant to a bona fide retirement plan that is not a subterfuge to evade the purposes of the ADEA (prong 2). Both subsections of the exemption must be given meaning to the extent possible. See, e.g., Ortloff v. United States, 335 F.3d 652, 659 (7th Cir. 2003) (citing Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253, 112 S. Ct. 1146, 1149 (1992)), cert. denied, 124 S. Ct. 1520 (2004). As set forth below, we believe there are circumstances in which the reinstatement of mandatory retirement might amount to a subterfuge for purposes of section 623(j)(2), even if such a program meets the requirements of section (j)(1).

24

Nos. 02-2587 & 02-2588

Evidence that City officials had impure motives for reinstating a mandatory retirement age, however, will not by itself support an inference of subterfuge. As Betts makes plain, an employment plan “cannot be a subterfuge to evade the ADEA’s purpose of banning arbitrary age discrimination unless it discriminates in a manner forbidden by the substantive provisions of the Act.” 492 U.S. at 176, 109 S. Ct. at 2866. The ADEA does not forbid Chicago from making age-based retirement decisions as to its police and firefighting personnel; it expressly allows state and local governments to make such decisions so long as they act within the parameters set forth in section 623(j)(1), which Chicago did. The statute does not condition the validity of such retirement programs on proof that the public employer has adopted the program genuinely believing that it is justified in the interest of public safety. Instead, recognizing that there was not yet any national consensus as to the relationship between age and one’s fitness to serve as a police officer or firefighter, Congress opted simply to restore the status quo ante, permitting states and cities to continue imposing age limits on these positions as they had been able to do prior to the ADEA’s extension to state and municipal employers and Wyoming’s 1983 holding sustaining that extension. See Kopec, 193 F.3d at 903-04.
Thus, proof that Chicago resumed mandatory retirement for police and fire personnel based in whole or in part on stereotypical thinking—that older individuals are not up to the rigors of law enforcement or firefighting and should make room for younger, “fresher” replacements—or for reasons wholly unrelated to public safety, will not establish subterfuge because it does not reveal a kind of discriminatory conduct that the ADEA by its very terms forbids. The Supreme Court in Betts concluded that age-based decisions in disability retirement benefits were not vulnerable to challenge as a subterfuge merely because there was no proof that the age differentials were justified on a cost

Nos. 02-2587 & 02-2588

25

basis. The statute, as it was written at that time, expressly allowed such decisions. 492 U.S. at 169-177, 109 S. Ct. at 2862-67. Likewise, we concluded in Bell that an age-based cutoff in the university’s retirement contributions did not amount to a subterfuge even in the face of evidence that the university preferred a younger faculty. “[T]he defendants cannot be liable for their motives if their conduct has not evaded the ADEA’s prohibitions,” we said, 975 F.2d at 429 (emphasis supplied), and doing something that the statute expressly permits does not evade its prohibitions. See Betts, 492 U.S. at 176-77, 109 S. Ct. at 2866-67.
What is necessary to establish subterfuge is proof that the employer is using the exemption as a way to evade another substantive provision of the act. Id. at 181, 109 S. Ct. at 2868. Both of the hypotheticals that Betts used to illustrate this point envision the employer making an age-based distinction that is expressly permitted by the statute as a means of committing another kind of discrimination that the ADEA prohibits. Here then, a viable claim of subterfuge would require the plaintiffs to allege and prove that Chicago took advantage of the statutory authorization to mandatorily retire police officers and firefighters as a means of discriminating in another aspect of the employment relationship—that is, other than in the discharge decision—in a way that the statute forbids.
The district court was concerned that so limiting the means of establishing subterfuge would render the subterfuge provision of section 623(j)(2) almost meaningless. Because mandatory retirement, in contrast to a reduction in fringe benefits, effectively ends the employment relationship, the district court reasoned, it would be difficult if not impossible for a mandatorily retired police officer or firefighter ever to show that the employer used the retirement program as a means of committing some independent form of forbidden discrimination. Drnek II, 205 F. Supp. 2d at 898-99.

26

Nos. 02-2587 & 02-2588

Yet, that is not the case. In fact, each of the two hypotheticals that the Supreme Court cited in Betts as examples of viable claims for subterfuge under the former version of section 623(f)(2) readily translates into the present context. First, as Betts makes clear and as the district court recognized, a plaintiff of course would have a claim for subterfuge if a city or state government exercised its right to reimpose age limits in order to retaliate against one or more employees for protesting practices made illegal by the ADEA. Betts, 492 U.S. at 180, 109 S. Ct. at 2868; Drnek II, 205 F. Supp. 2d at 899. Second, Betts suggested in the context of a fringe benefit plan that reducing the wages of all workers while substantially increasing the benefits provided to younger workers might constitute a subterfuge for wage discrimination against older workers. 492 U.S. at 180, 109 S. Ct. at 2868. One can imagine a variant of that hypothetical here: as the City suggests, if it were shown that a public employer had reinstated mandatory retirement for police and firefighting personnel pursuant to section 623(j) but, at the same time, created a new, lowerpaying position not restricted by age and invited the mandatorily-retired officers to apply for that position, then it could be inferred that the employer was using its mandatory retirement program as a subterfuge for wage discrimination against older employees. These examples demonstrate that the subterfuge provision of section 623(j)(2) retains meaning when construed in a manner consistent with Betts and Bell. We therefore see no need to depart from the approach of those precedents.
We owe a plaintiff’s complaint a generous construction in deciding whether it states a claim on which relief can be granted. E.g., Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1001-02 (7th Cir. 2002). Here, the plaintiffs’ complaints broadly allege that the MRO amounts to a subterfuge to evade the purposes of the ADEA. Unadorned, those allegations might state a viable ADEA claim if the

Nos. 02-2587 & 02-2588

27

plaintiffs were prepared to establish subterfuge in one of the ways illustrated by Betts. However, as fleshed out in the briefing, the particular theory of subterfuge that the plaintiffs are pursuing is not viable. The plaintiffs suggest no way in which Chicago might have used its authority to reimpose mandatory retirement pursuant to section 623(j) as a subterfuge for forbidden discrimination in some other aspect of their employment relationship. Their sole contention is that in exercising the City’s prerogative to reinstate mandatory retirement, certain City legislators and other officials were motivated by a desire to remove from the police and firefighting forces older workers whom they felt were not up to the job and/or to create openings for younger workers. Yet, the statutory exemption expressly permits the City to reinstate its mandatory retirement program, and the inevitable result of any such program will be to force older employees from the workforce and create openings for younger workers. That some City officials affirmatively wished for that result, perhaps because of unfortunate stereotypes about the abilities of older workers, is immaterial insofar as section 623(j)(2) is concerned. Betts and Bell require proof that the City was using mandatory retirement as a vehicle to commit some other type of age discrimination forbidden by the ADEA. And here the plaintiffs can postulate no type of discrimination other than the very type of age-based discrimination (mandatory retirement) that the statute permits.

III.
Having answered the question certified for interlocutory review, we REMAND these cases to the district court with directions to DISMISS the plaintiffs’ ADEA claims and to conduct such further proceedings as may be consistent with this opinion. We thank the parties and amicus American Association of Retired Persons for their helpful briefs.

28 A true Copy:
Teste:

Nos. 02-2587 & 02-2588
________________________________ Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—4-9-04

 
 USCA7 Docket Sheet for 02-2588

Page 1 of 8

General Docket
US Court of Appeals for the Seventh Circuit

Court of Appeals Docket #: 02-2588 Nsuit: 3442 Civil Rights Jobs-Fed. Ques. Drnek, Donald v. City of Chicago Appeal from: United States District Court

Filed: 6/17/02

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Lower court information:

District: 0752-1 : 01 C 840 Court Reporter: Cheryl Young, Court Reporter Ordering Judge: Elaine E. Bucklo, Judge Date Filed: 2/6/01 Date order/judgment: 5/22/02 Date NOA filed: 6/11/02 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Fee status: paid

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Prior cases:

None

Current cases:

Lead

Member

Start

End

Consolidated:

02- 2587 02- 2588 6/17/02

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Docket as of October 28, 2004 11:16 pm

Page 1

02-2588 Drnek, Donald v. City of Chicago

DONALD DRNEK Plaintiff - Appellee

Joan Matlack FAX 312/427-1850 312/427-3600 Suite 1850 [COR LD NTC ret] FUTTERMAN & HOWARD 122 S. Michigan Avenue Chicago, IL 60603 USA

v.

CITY OF CHICAGO, a Municipal Corporation
Defendant - Appellant

Myriam Zreczny FAX 312/744-3588 312/744-3564 Room 800 [COR LD NTC ret] OFFICE OF THE CORPORATION COUNSEL

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USCA7 Docket Sheet for 02-2588

Appeals Division 30 N. LaSalle Street Chicago, IL 60602 USA

-------------------------

AMERICAN ASSOCIATION OF RETIRED PERSONS
Amicus Curiae

Laurie A. McCann FAX 202/434202/434-2060 [COR LD NTC ret] AARP FOUNDATION LITIGATION 601 E Street N.W. Washington, DC 20049 USA

Docket as of October 28, 2004 11:16 pm

Page 2

Page 2 of 8

02-2588 Drnek, Donald v. City of Chicago
DONALD DRNEK, Plaintiff - Appellee
v.
CITY OF CHICAGO, a Municipal Corporation, Defendant - Appellant
Docket as of October 28, 2004 11:16 pm

Page 3

02-2588 Drnek, Donald v. City of Chicago

6/17/02

Private civil case docketed. [02-2588] [1513169-1] Transcript information sheet due 6/27/02. Appellant's brief due 7/29/02 for City of Chicago. Docketing Statement due 6/18/02. (hudk) [02-2588]

6/17/02

Case transferred from Miscellaneous Docket No. 02-8012. [02-2588] [1520888-1] (hudk) [02-2588]

6/17/02

[02-2588] ROA from No. Dist. of Il., E. Div. due 6/25/02. (hudk) [02-2588]

6/17/02

ORDER: The court, on its own motion, orders these appeals CONSOLIDATED for purposes of briefing and disposition pursuant to the court's order of 6/11/02 that issued in case nos. 02-8012 and 02-8013. [1520888-1] [02-2587, 02-2588] (hudk) [02-2587 02-2588]

6/21/02

Filed Appellant City of Chicago in 02-2587, Appellant City of Chicago in 02-2588 docketing statement. [02-2587, 02-2588] [1521741-1] (julr) [02-2587 02-2588]

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6/25/02

Filed Seventh Circuit Transcript Information Sheet by Mara S. Georges for Appellant City of Chicago in 02-2588. [02-2588] [1520880-1] (julr) [02-2588]

7/8/02

Original record on appeal filed. Contents of record: 2 vol. pleadings; 2 vol. loose pleadings; . [02-2587, 02-2588] [1525311-1] (dave) [02-2587 02-2588]

7/8/02

Original record on appeal filed. Contents of record: 1 vol. pleadings; 1 vol. transcripts; 1 vol. loose pleadings; . [02-2588] [1525334-1] (stef) [02-2588]

7/22/02

Filed motion by Appellant City of Chicago in 02-2587, Appellant City of Chicago in 02-2588 to extend time to file appellant's brief. [1530225-1] [02-2587, 02-2588] (julr) [02-2587 02-2588]

7/23/02

ORDER issued GRANTING motion for extension of time to file appellant's brief. [1530225-1] JKL [02-2587, 02-2588] Appellant's consolidated brief due 8/28/02 for City of Chicago in 02-2587, for City of Chicago in 02-2588. 2. The appellee(s) briefs are due on or before 6/27/02 for Richard Cosentino in 02-2587, for Richard A. Graf in 02-2587, for James D. Minch in 02-2587, for Donald Drnek in 02-2588. 3. The reply brief, if any, is due 10/11/02 for City of Chicago in 02-2587, for City of Chicago in 02-2588. (amyd) [02-2587 02-2588]

Docket as of October 28, 2004 11:16 pm

Page 4

02-2588 Drnek, Donald v. City of Chicago

7/24/02

ORDER: Amending order of 7/23/02 to reflect that the appellees' brief is due 9/27/02. [1531079-1] [02-2587, 02-2588] Appellant's brief due 8/28/02 for City of Chicago in 02-2587, for City of Chicago in 02-2588. Appellee's brief due 9/27/02 for Richard Cosentino in 02-2587, for Richard A. Graf in 02-2587, for James D. Minch in 02-2587, for Donald Drnek in 02-2588 Appellant's reply brief due 10/11/02 for City of Chicago in 02-2587, for City of Chicago in 02-2588. (amyd) [02-2587 02-2588]

8/21/02

Filed motion by Appellant City of Chicago in 02-2587, Appellant City of Chicago in 02-2588 to extend time to file appellant's brief. [1540002-1] [02-2587, 02-2588] (kell) [02-2587 02-2588]

8/22/02

ORDER issued GRANTING motion for extension of time to file appellant's brief. [1540002-1] JKL [02-2587, 02-2588] Appellant's brief due 9/27/02 for City of Chicago in 02-2587, for City of Chicago in 02-2588. 2. The appellee(s) briefs are due on or before 10/28/02 for Richard Cosentino in 02-2587, for Richard A. Graf in 02-2587, for James D. Minch in 02-2587, for Donald Drnek in 02-2588. 3. The reply brief, if any, is due 11/12/02 for City of in 02-2587, for City of Chicago in 02-2588. (kell) [02-2587 02-2588]

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8/26/02

Supplemental record on appeal filed. Contents of record: 3 vol. transcripts; . [02-2588] [1540942-1] (stef) [02-2588]

9/19/02

Filed motion by Appellant City of Chicago in 02-2587, Appellant City of Chicago in 02-2588 to extend time to file appellant's brief. [1549152-1] [02-2587, 02-2588] (hudk) [02-2587 02-2588]

9/20/02

ORDER issued GRANTING motion for extension of time to file appellant's brief. [1549152-1] CMD [02-2587, 02-2588] Appellant's brief due 10/11/02 for City of Chicago in 02-2587, for City of Chicago in 02-2588. 2. The appellee(s) brief is due on or before 11/12/02 for Richard Cosentino in 02-2587, for Richard A. Graf in 02-2587, for James D. Minch in 02-2587, for Donald Drnek in 02-2588. 3. The reply brief, if any, is due 11/26/02 for City of Chicago in 02-2587, for City of Chicago in 02-2588. (kell) [02-2587 02-2588]

10/11/02

Filed 15c appellant's brief by City of Chicago in 02-2587, City of Chicago in 02-2588. Disk filed. [02-2587, 02-2588] (fern) [02-2587 02-2588]

10/16/02

Filed oversized record in Section 25 of exhibit room: 1 box containing briefs. [1520888-1] [02-2587, 02-2588] (cove) [02-2587 02-2588]

Docket as of October 28, 2004 11:16 pm

Page 5

02-2588 Drnek, Donald v. City of Chicago

11/4/02

Filed motion by Appellee James D. Minch in 02-2587, Appellee Richard A. Graf in 02-2587, Appellee Richard Cosentino in 02-2587, Appellee Donald Drnek in 02-2588 to extend time to file appellees' brief. [1564833-1] [02-2587, 02-2588] (julr) [02-2587 02-2588]

11/7/02

ORDER issued GRANTING motion for extension of time to file appellees' brief. [1564833-1] CMD [02-2587, 02-2588] Appellees' brief due 12/12/02 for Richard Cosentino in 02-2587, for Richard A. Graf in 02-2587, for James D. Minch in 02-2587, for Donald Drnek in 02-2588. 3. The reply brief if any is due on 12/26/02 for City of Chicago in 02-2587, for City of Chicago in 02-2588. (julr) [02-2587 02-2588]

11/18/02

Filed motion by Appellee James D. Minch in 02-2587, Appellee Richard A. Graf in 02-2587, Appellee Richard Cosentino in 02-2587, Appellee Donald Drnek in 02-2588 to extend time to file appellees' brief. [1569072-1] [02-2587, 02-2588] (julr) [02-2587 02-2588]

11/21/02

ORDER issued GRANTING motion for extension of time to file appellees' briefs. [1569072-1] CMD [02-2587, 02-2588] Appellee's briefs due 1/10/03 for Richard Cosentino in 02-2587, for Richard A. Graf in 02-2587, for James D. Minch

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in 02-2587, for Donald Drnek in 02-2588. 3. The reply brief if any is due on 1/24/03 for City of Chicago in 02-2587, for City of Chicago in 02-2588. (julr) [02-2587 02-2588]

1/10/03

Filed 15c appellee's brief by James D. Minch in 02-2587, Richard A. Graf in 02-2587, Richard Cosentino in 02-2587, Donald Drnek in 02-2588. Disk filed. [02-2587, 02-2588] [0-0] (odea) [02-2587 02-2588]

1/10/03

Disclosure Statement filed by Clinton A. Krislov and Michael R. Karnuth for Appellee Donald Drnek in 02-2588. [02-2588] [1520880-1] (hard) [02-2588]

1/10/03

Terminated attorney Clinton A. Krislov for Donald Drnek in 02-2588 and added attorney Joan Matlack (as counsel of record) per disclosure statement. Disclosure statement filed for Appellee Donald Drnek in 02-2588 by Ronald L. Futterman, Joan Matlack, and William W. Thomas in 02-2588. [02-2588] [1520880-1] (squi) [02-2588]

1/13/03

NOTICE: Myriam Zreczny will not be available for oral argument February 12, March 4, 2003. [02-2587, 02-2588] [1520888-1] (broo) [02-2587 02-2588]

1/13/03

Filed oversized record in Section 25 of exhibit room: 1 box containing 2 vol. pleadings; 3 vol. loose pleadings. [1520888-1] [02-2587, 02-2588] (cove) [02-2587 02-2588]

Docket as of October 28, 2004 11:16 pm

Page 6

02-2588 Drnek, Donald v. City of Chicago

1/17/03

Filed motion by Appellant City of Chicago in 02-2587, Appellant City of Chicago in 02-2588 to extend time to file appellant's reply brief. [1585996-1] [02-2587, 02-2588] (hudk) [02-2587 02-2588]

1/21/03

Filed 15c amicus brief by Amicus Curiae AARP in 02-2587, Amicus Curiae AARP in 02-2588, by consent. Disk filed. [02-2587, 02-2588] [0-0] (cerr) [02-2587 02-2588]

1/21/03

ORDER issued GRANTING motion for extension of time to file appellant's reply brief. [1585996-1] CMD [02-2587, 02-2588] Appellant's reply brief due 2/24/03 for City of Chicago in 02-2587, for City of Chicago in 02-2588. No further extensions of time will be allowed. (hudk) [02-2587 02-2588]

1/22/03

NOTICE: Myriam Zreczny will not be available for oral argument March 5, 2003. [02-2587, 02-2588] [1520888-1] (broo) [02-2587 02-2588]

1/28/03

ORDER: Argument set for Friday, February 28, 2003 at 9:30 a.m. Each side limited to 20 minutes. [02-2587, 02-2588] [1588903-1] (broo) [02-2587 02-2588]

1/29/03

ORDER: A review of the court's docket indicates that this

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appeal has been scheduled for oral argument on 2/28/03. Accordingly, this court's order dated 1/21/03 is AMENDED to reflect that the reply brief, if any, is due by 2/21/03. The reply brief must be received in the clerk's office by noon on the due date. Fed. R. App. P. 25(a)(2)(B) will not apply. [1520888-1] CMD [02-2587, 02-2588] (hudk) [02-2587 02-2588]

2/4/03

Supplemental record on appeal filed. Contents of record: 1 vol. transcripts; . [02-2587] [1591024-1] (stef) [02-2587]

2/21/03

Appearance entered per filing of brief for Appellant City of Chicago in 02-2587, in 02-2588 by attorney Myriam Zreczny in 02-2587, in 02-2588. Involvement of attorney Mara S. Georges for City of Chicago in 02-2587, in 02-2588 terminated. [02-2587, 02-2588] [1520888-1] (cerr) [02-2587 02-2588]

2/21/03

Filed 15c appellant's reply brief by City of Chicago in 02-2587, City of Chicago in 02-2588. Electronically Transmitted. [02-2587, 02-2588] [0-0] (cerr) [02-2587 02-2588]

2/24/03

Filed motion by Appellee James D. Minch in 02-2587, Appellee Richard A. Graf in 02-2587, Appellee Richard Cosentino in 02-2587, Appellee Donald Drnek in 02-2588 to correct response brief. [1597259-1] [02-2587, 02-2588] (hudk) [02-2587 02-2588]

Docket as of October 28, 2004 11:16 pm

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02-2588 Drnek, Donald v. City of Chicago

2/25/03

ORDER issued GRANTING motion to correct brief. The court takes notice of the typographical errors on pages 16 and 27, where the appellees erroneously employed the phrase "substantive allegation" rather than the intended phrase "substantive violation." The clerk of this court distribute a copy of this order and the motion to correct the response brief to the assigned merits panel. [1597259-1] JKL [02-2587, 02-2588] (squi) [02-2587 02-2588]

2/27/03

ORDER: Argument reset for Friday, February 28, 2003 at 10:00 a.m. Each side limited to 15 minutes. [02-2587, 02-2588] [1598348-1] (broo) [02-2587 02-2588]

2/28/03

Case heard and taken under advisement by panel: Circuit Judge Richard A. Posner, Circuit Judge Daniel A. Manion, Circuit Judge Ilana D. Rovner. [02-2587, 02-2588] [1598888-1] (broo) [02-2587 02-2588]

2/28/03

Case argued by Joan Matlack for Appellee Richard Cosentino, Appellee Richard A. Graf, Appellee James D. Minch in 02-2587, Myriam Zreczny for Appellant City of Chicago in 02-2587, Myriam Zreczny for Appellant City of Chicago in

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02-2588, Joan Matlack for Appellee Donald Drnek in 02-2588 . [02-2587, 02-2588] [1520880-1] (broo) [02-2587 02-2588]

7/2/03

Supplemental record on appeal filed. Contents of record: 1 vol. transcripts. [02-2587, 02-2588] [1638956-1] (greg) [02-2587 02-2588]

4/9/04

Filed opinion of the court by Judge Rovner. We REMAND these cases to the district court with directions to DISMISS the plaintiff's ADEA claims and to conduct such further proceedings as may be consistent with this opinion. Circuit Judge Richard A. Posner, Circuit Judge Daniel A. Manion, Circuit Judge Ilana D. Rovner. [02-2587, 02-2588] [1520888-1] (julr) [02-2587 02-2588]

4/9/04

ORDER: Final judgment filed per Opinion. The parties shall bear their own costs. [02-2587, 02-2588] [1726917-1] (julr) [02-2587 02-2588]

4/23/04

Filed 30c Petition for Rehearing and Petition for Rehearing Enbanc by Appellee Richard Cosentino in 02-2587, Appellee Richard A. Graf in 02-2587, Appellee James D. Minch in 02-2587, Appellee Donald Drnek in 02-2588. Dist. [02-2587, 02-2588] [1731512-1] (amyd) [02-2587 02-2588]

5/5/04

ORDER: Appellee Richard Cosentino in 02-2587, Appellee Richard A. Graf in 02-2587, Appellee James D. Minch in 02-2587, Appellee Donald Drnek in 02-2588 Petition for Rehearing and Petition for Rehearing Enbanc is DENIED. [02-2587, 02-2588] [1731512-1] (amyd) [02-2587 02-2588]

Docket as of October 28, 2004 11:16 pm

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5/13/04

MANDATE ISSUED AND ENTIRE RECORD RETURNED. (Contents returned: 3 vol. pleadings; 3 vol. loose pleadings; 6 vol. transcripts.) [02-2587, 02-2588] [1598890-1] (cove) [02-2587 02-2588]

5/13/04

Filed mandate receipt. [02-2587, 02-2588] [1737681-1] (amyd) [02-2587 02-2588]

8/9/04

Filed notice from the Supreme Court of the filing of a Petition for Writ of Certiorari. Supreme Court Case No.: 04-176. [02-2587, 02-2588] [1764550-1] (tiff) [02-2587 02-2588]

10/13/04

Filed order from the Supreme Court DENYING the Petition for Writ of Certiorari. Supreme Court Case No.: 04-176. [02-2587, 02-2588] [1785968-1] (tiff) [02-2587 02-2588]

Docket as of October 28, 2004 11:16 pm

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