Drnek v. City of Chicago (192 F. Supp. 2d 835, 2002)

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. 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 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.

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 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