“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.®

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 (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. 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.”).

© 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).

19


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, 456 S.E.2d 167, 181-82 (W. Va. 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

36


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 Occupational Safety and Health, 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

13


permissible motive is conceivable; under § 623(})(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 issue. In fact, suspicious timing of enactment 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.

23


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.

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 (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


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.

iS 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.

34


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. Thus, the question was only whether there was
a conceivable non-safety rationale for the state’s legislation, id.
at 213, and the Court needed to look no further than the state
statute’s statement of purpose, which gave an economic rationale,
id. at 216. 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.’

Federal preemption in Pacific Gas was a question of law, id.
at 201, 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

? 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.

20


interest,?° and (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. 1992). 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

*© 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, 687 N.E.2d 1050, 1060 (Ill. 1997), so the
analysis is the same for the state and federal claim.

26


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(}), 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,”® 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

® 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.

22


The claim as to vested plaintiffs has been rejected by the
Illinois Supreme Court. See Peters v. City of Springfield, 311
N.E.2d 107, 151-52 (Ill. 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 sixty-three,
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. The court agreed, and held

that § 5 “was not intended, and did not serve, to prevent the

35


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(3) (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 (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

17


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 ‘otherwise demonstrating
physical 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 C 1264,
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 addréss 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[,]


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 nondiscrimination
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.

32


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~-and therefore no property interest in--the 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

29


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 firefighters to perform
the requirements of the[ir] jobs.” Id. at (c). After issuing the
advisory guidelines, HHS was directed to issue regulations
identifying appropriate nondiscriminatory job performance tests,
id. at (d)(1), and “fe]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


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* 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 complete text of § 623(}) follows:
(3) 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(a) (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) (1) 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--
(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.

5


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 70145 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 Police [and Fire] Department[s] . . .
officers who had surpassed 63 years of age so that, among other
reasons, the City could promote younger police [and fire] officers
within its . . . Department[s].” Drnek Compl. § 17; see also Minch
Compl. 7 23. At oral argument on March 8, 2000, the plaintiffs made

additional factual allegations that the City’s true purpose was to

18


Police Department and for any member of the uniformed service of
the Fire Department. CMC § 2-152-410(a), (b).
A. Section 623(5) (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.


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) .* 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

° 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.

24


Minate Order Form (06/97)
i. 4

United States District Court, Northern District of [inois

“
Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Elaine E. Bucklo than Assigned Judge
CASE NUMBER 01 C 840 DATE 3/25/2002
CASE Drnek vs. City of Chicago
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

(1) gO Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) Oo Answer brief to motion due . Reply to answer brief due

(4) im Ruling/Hearing on set for. at :

(5) a Status hearing set for 4/26/02 at 10:00 a.m.

(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at .

(7) a Trialfset for/re-set for] on at

(8) aq {Bench/Jury trial} [Hearing] held/continued to __ at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

Crrcp4(m) General Rule21 COPRCP41(a)(1) CO FRCP41(a)2).

(io) «ol [Other docket entry} | 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 the time for filing motions for

summary judament.

dl) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
2
No notices required. number of notices
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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).

The so-called “public safety exemption,” H.R. 849,% was
introduced in the House of 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.

‘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.

11


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

10


that the CBA does not provide a property interest for police
officers age sixty-three or older, but argue 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.1? 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

3 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.

31


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, 475 N.E.2d 872, 876 (Ill. 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., 625 N.E.2d 956, 966 (Ill. 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

30


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 (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


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 171 (citations omitted)
Thus the intent or desire of aldermen or other 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 (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

21


w

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.
II.
The City’s motion to dismiss is DzNIED as to the ADEA claims of
f

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.

ENTER ORDER:

. oe
Elaine E. Bucklo
United States District Judge

Dated: March~f—, 2002

38


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 (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 sixty~three 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

27


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. Tli. 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


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

14


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(3) (1) (B) (11) provides an alternative® “if applicable State or
local law was enacted after September 30, 1996,” in which case
discharge is lawful if the officer has reached the higher of the
age in effect under the new law or 55. Notably, § 623(4) (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(3) (1) (B) (14), 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(3) (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 (3) (1), and I hold that it

5 Section (j) (1) refers to attainment of the age in subsection
(A) “or” (B).

16


be

themselves and others similarly situated.’ The City moves 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.% 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

» 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).


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

37


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
for 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(}4) (2).
III. Due Process

To state a Fourteenth Amendment claim for the deprivation of

a property interest without due process, the plaintiffs must (1

show that they have a constitutionally protected property

25


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONALD DRNEK,
Plaintiff,

v.
No 01 C 0840

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, No. O01 C 2586
v.

CITY OF CHICAGO, an Illinois
Municipal Corporation,

Defendant.

MEMORANDUM OPINION AND ORDER

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 seg. (“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


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,%
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 specific 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

“ § 2~74-080 incorporates chapter 2-160 by reference.

33


of age, among other things." 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’ 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 regulations relating to
wages, hours and conditions of 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’

TM 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.”

42 The Ordinance was enacted on May 17, 2000, subsequent to
ratification of the CBA on January 14, 1998.

28


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

12


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(j4)
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(4) (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

15