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Employment & Labor Law for Public Safety Agencies


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Age Discrimination - General

      Employees of a fire district that was a subdivision of Arizona asserted claims for alleged violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621-34. The two plaintiffs, both full time firefighters, were the two oldest firefighters when they were both terminated at ages 46 and 54 respectively. A federal trial court granted the employer’s motion for summary judgment, ruling that the fire district was not an employer within the meaning of the ADEA. A federal appeals court disagreed, reinstating the plaintiffs’ claims, and holding that the requirement that an employer have a minimum of 20 employees did not apply to employers that are political subdivisions of a state. Guido v. Mount Lemmon Fire District, #15-15030, 2017 U.S. App. Lexis 10764, 130 Fair Empl. Prac. Cas. (BNA) 336 (9th Cir.).

    A man worked for a local city parks department for 38 years before his employment classification was eliminated. He and many employees were laid off. He applied to be rehired in a newly created classification, but did not get a position. He then retired from city employment, but sued for age discrimination, retaliation, and harassment. The city asserted, with documentation, that its actions were taken for legitimate nondiscriminatory reasons, in that he had refused to cooperate with the implementation of a new departmental policy getting away from separate recreational events for disabled members of the public and their enhanced inclusion in general events. Summary judgment was upheld for the employer. The plaintiff's opposition to policies he viewed as discriminating against disabled members of the public was not protected activity because his opposition was not directed at an unlawful employment practice, so no unlawful retaliation occurred. Dinslage v. City and County of San Francisco, #A142365, 5 Cal. App. 5th 368, 2016 Cal. App. Lexis 970.
     A city's Superintendent of the Water Department claimed that he was fired in unlawful retaliation for planning to testify against the city in an age discrimination lawsuit. The federal appeals court rejected the city's argument that plaintiff's speech was not speech as a citizen on a matter of public concern and so fell outside the First Amendment's protections. In this case, his sworn statement and imminent testimony were outside the scope of his ordinary job duties, which meant that he was engaged in speech as a citizen for First Amendment purposes. The court also concluded that the retaliation provision of the age discrimination in employment statute did not preclude a plaintiff such as the one in this case from bringing a First Amendment retaliation claim under 42 U.S.C. 1983. Given the substantial difference between the levels of scrutiny afforded age discrimination equal protection claims and First Amendment retaliation claims, the court cannot assume that Congress intended the age discrimination statute to affect the availability of section 1983 claims. Stilwell v. City of Williams, #14-15540,, 2016 U.S. App. Lexis 14409 (9th Cir.).
      A white male terminated county employee claimed that a Hispanic voting block on the County Commissioners Court eliminated his job because of his race, and in retaliation for age-related protected activities while also violating his right to due process. A federal appeals court ruled that he failed to prove his race discrimination claim. He had earlier complained that the county’s health-insurance policy violated the Age Discrimination in Employment Act (ADEA) because it provided dependent health benefit coverage for dependent children of county employees. According to him, older workers were less likely to have children, so the older workers received "fewer County dollars per capita." This complaint was rejected by the county. The appeals court ruled that the 21 months between his complaint about the health insurance and his termination was too substantial a gap to support an inference of causation. Heggemeier v. Caldwell Cnty., TX, #15-50485, 2016 U.S. App. Lexis 11531, 100 Empl. Prac. Dec. (CCH) P45586, 129 Fair Empl. Prac. Cas. (BNA) 389 (5th Cir.).
     Firefighters in a city who took a promotional exam for Lieutenant or Captain but were not promoted sued under the Age Discrimination in Employment Act and an Ohio statute, claiming that the process had a disparate impact on firefighters over the age of 40. After a trial, a jury found that both promotional processes adversely impacted applicants over age 40 and that the city had not justified the age discrimination by demonstrating a business necessity. Backpay of $616,217.75 was awarded, and the trial court entered a permanent injunction against the age discrimination and appointed a court monitor. A federal appeals court upheld the finding of liability, reversed the backpay award for a new trial on the amount to be awarded since the trial court used an incorrect start date to calculate the back pay amount and other errors were made, and the court monitor's involvement in the process was limited to one promotional cycle. Howe v. City of Akron, #14-3352, 2015 U.S. App. Lexis 16529, 2015 Fed. App. 0231P (6th Cir.).
     A border patrol agent claimed that the failure to promote him was age discrimination. Reversing summary judgment for the defendant employer, a federal appeals court acknowledged that the average age difference between the plaintiff and the average selected Assistant Chief Patrol Agent was eight years, which was presumably insubstantial, but the plaintiff established a prima facie case of age discrimination by showing that the agency considered age to be significant in making these promotions and that the Tucson Chief Patrol Agent considered the plaintiff's age as specifically pertinent in considering whether to promote him. There was also a factual issue as to whether the Chief's articulated nondiscriminatory reasons for not promoting the plaintiff--his lack of leadership and judgment required for the position--were a pretext for age discrimination. France v. Johnson, #13-15534, 2015 U.S. App. Lexis 13487, 127 Fair Empl. Prac. Cas. (BNA) 1336 (9th Cir.).
     A 51-year-old African American man served in a city fire department since 1986 and was one of two district chiefs of Fire Prevention. At one point, his duties were altered. While he did not receive reduced pay or a reduction in rank, he perceived the realignment as discrimination, which he believed was based on his race, color, or age, in addition to being retaliation for having given a statement supporting an EEOC claim against the assistant chief who altered his duties. A federal appeals court upheld a determination that his lawsuit over the 2011 alteration of his duties was not timely filed. However, even if it had been, he had failed to establish a prima facie case of either discrimination or retaliation either for the 2011 duty alteration or for his subsequent non-selection as District Chief of Inspections in 2012. The roles of the position he held and the job he sought were considered equivalent, and they were not different in working conditions, benefits, or compensation. Jenkins v. City of San Antonio Fire Dept., 14-50483, 2015 U.S. App. Lexis 6510 (5th Cir.).
     When the police chief announced his retirement, the plaintiff, who sought the job, was 51, one year past being retirement eligible, While he had the highest service score of the finalists, and an unprecedented perfect 100 score from each commissioner, he was not selected, an another candidate who had the same 143 point score total as the plaintiff, but was 43 years old, was hired as chief instead. One commissioner said that retirement eligibility "might have been a factor." A federal appeals court found that issues of material fact on the plaintiff's age discrimination claim precluded summary judgment for the city. Hilde v. City of Eveleth, #14-1016, 2015 U.S. App. Lexis 1802 (8th Cir.).
     A woman employed by a state corrections department as a substance abuse counselor for 19 years lost her job when her employer contracted out its counseling program to a private company. She claimed that the private company's decision not to hire her stemmed from an incident a year before when she and a coworker complained that their desks were being used after hours to have sex on. She claimed that she was told that it was "just" staff members, not inmates, having sex on the desks, and that she could simply wash down her desk. It later was discovered that her coworker and the Major in charge of custody were having an affair, which led to both of them being fired, but the Major quickly returning to work at the prison on a contract basis. When the coworker filed a sex discrimination lawsuit, the plaintiff supported her. She now claimed that the failure to hire her back once counseling was contracted out constituted sex discrimination, age discrimination, and unlawful retaliation. Upholding summary judgment for the defendant employer, the private company providing counseling at the prison, the federal appeals court found that the plaintiff was merely the "unfortunate victim" of a reduction in workforce, rather than retaliation or discrimination. Ripberger v. Corizon, Inc., #13-2070, 2014 U.S. App. Lexis 23186, 125 Fair Empl. Prac. Cas. (BNA) 760 (7th Cir.).
     A county employee claimed that her employer discriminated against her on the basis of her sex and age when they fired her. The appeals court upheld the rejection of this claim, noting that the county had a legitimate, non-discriminatory reason for her termination--that she repeatedly made record keeping errors. The plaintiff failed to provide evidence adequate to raise a genuine issue of fact as to whether the county's reason was pretextual. Doucette v. Morrison County, Minnesota, #13-2424, 763 F.3d 978 (8th Cir.).
    A detective for a county prosecutor's office claimed that his termination was part of the agency's "well-known and established practice to push out older workers through termination or forced resignation." He unsuccessfully pursued an internal grievance and received a right to sue letter on his claims for age discrimination under the Age Discrimination in Employment Act (ADEA). He sued for that, as well as for violation of equal protection under 42 U.S.C. Sec. 1983. ADEA claims against the county were properly dismissed as the plaintiff had not named the county as a defendant on the EEOC intake questionnaire, and had not identified it as a defendant on the age discrimination claim until after the deadline for doing so had passed. ADEA claims against the district attorneys' office, however, were improperly dismissed as he had properly named it as a defendant in a timely fashion before the EEOC and adequately pleaded that he had exhausted available administrative remedies. Age discrimination claims may not be brought by a state or local government employee under Sec. 1983, but may only do so under the ADEA. Hildebrand v. Allegheny Cnty, #13-1321, 2014 U.S. App. Lexis 12136 (3rd Cir.).
     An employee of the Alabama Board of Pardons and Paroles sued her employer for age discrimination in state court. The Board removed the case to federal court. The federal court then entered judgment for the Board on a claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.S. §§ 621-634, on the basis of Eleventh Amendment sovereign immunity. A federal appeals court upheld that result, finding that the defendant, as a state agency, did not waive its immunity from liability for an ADEA claim by voluntarily removing the case to federal court. The removal did not affect the availability of a sovereign immunity defense, although the Board had waived its defense of immunity from litigation in federal court. Stroud v. McIntosh, #12-10436, 2013 U.S. App. Lexis 14868 (11th Cir.).
     A city held promotional exams for fire department positions of Captain and Lieutenant. Candidates were promoted in rank order based on a score that combined exam scores and additional points for seniority. After a hearing, a federal trial court concluded that the exam had adversely impacted 12 white Captain candidates and three Lieutenant candidates on the basis of race, and adversely impacted 11 Lieutenant candidates on the basis of their age. The trial court ordered the promotion of 18 candidates, and awarded each impacted Lieutenant candidate $9,000 in compensatory damages and $72,000 in front pay and each impacted Captain candidate $10,000 in compensatory damages and $80,000 in front pay. A federal appeals court upheld this result, finding that the plaintiffs met the standards for injunctive relief, as they demonstrated that substantially delaying their promotions would irreparably harm their careers. Howe v. City of Akron, #11-3752, 2013 U.S. App. Lexis 14745 (6th Cir.).
     In a federal employee's mixed case against the U.S. Department of Labor asserting claims for age and sex discrimination and discriminatory removal, a federal appeals court improperly upheld the trial court's dismissal for lack of jurisdiction, when the trial court said that the employee should have filed her claim initially with The Federal Circuit U.S. Court of Appeals. A federal employee, who claims that the employing agency's action that can be appealed to the Merit System Protection Board (MSPB) violates a federal antidiscrimination statute, can seek judicial review in a federal district court regardless of whether the MSPB decided her case on the merits or on procedural grounds. Kloeckner v. Solis, #11-184, 2012 U.S. Lexis 9420.
     A 54-year-old federal employee, having been rejected for an interview and promotion in favor of a 42-year-old co-worker, stated a valid claim for age discrimination. Once an employee or applicant shows a prima facie case of age discrimination, the employer has the burden of production of articulating a legitimate non-discriminatory reason for the allegedly adverse employment decision. The employee, in response to the statement of such reason must then show that there is a disputable issue of fact as to whether the reason given is a pretext for age discrimination. In this case, the fact that a supervisor inquired about the two employees' future retirement dates was sufficient to suggest that other reasons given could be a pretext. The framework for deciding motions for summary judgment set forth in McDonnell Douglas Corporation v. Green, #72-490, 411 U.S. 792 (1973), remains available for application in federal age discrimination in employment cases despite the subsequent case of Gross v. FBL Financial Services, Inc., #08-441, 129 S. Ct. 2343 (2009) under which the trial court improperly granted summary judgment against the plaintiff on the basis that he had not shown that he would have received the promotion "but for" his age. Shelley v. Geren, #10-35014, 666 F.3d 599 (9th Cir. 2012).
     Under a collective bargaining agreement entered into by a prison system and a union, an early retirement incentive system had an "age 55 cliff." Under it, if employees retire at 55, the employer continues to make unreduced contributions towards their health and dental insurance costs. Employees who continue to work past 55, however, are denied such contributions. A federal appeals court upheld the EEOC's position that this arrangement constituted a violation of the Age Discrimination in Employment Act (ADEA). The court ruled that a so-called "safe harbor" exception to the law for voluntary early retirement programs "consistent with the purposes" of the ADEA did not apply, since the plan here was based solely on the age of the retiring employees. It was therefore at odds with the statute's purpose of avoiding age discrimination. EEOC v. Minnesota Department of Corrections, #10–2699, 2011 U.S. App. Lexis (8th Cir.).
     The Indiana State Police's hiring plan, which limits the rehiring rights of former officers to those under age 40, falls under an exception to the federal age discrimination statute exempting bona fide hiring or retirement plans not intended as a subterfuge to evade the law. The court ordered further proceedings, however, on the issue as to whether the decision to not rehire the plaintiff officer was made "pursuant" to the plan, or whether the State Police exercised discretion to hire other former officers over the age limit despite the plan, and used that same discretion to not rehire the plaintiff officer. Davis v. Whitesell, #10-2617, 2011 U.S. App. Lexis 13719 (Unpub. 7th Cir.).
     In a 5-4 holding, the Supreme Court ruled that plaintiffs in a "mixed motive" age discrimination case must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was a motivating factor in that decision. Gross v. FBL Financial Services, #08-441, 129 S.Ct. 2343, 2009 U.S. Lexis 4535.
     EEOC challenges a fire district policy that disallowed credit toward a pension for firefighters over 65. The district amended its program in late 2006 to allow firefighters to earn service credit without regard to age, but did not allow retroactive credits. EEOC v. Eaton’s Neck Fire Dist., #08-5089, complaint (E.D.N.Y. 12/18/08).
     Section 623(d) of the ADEA specifically prohibits retaliation by non-federal employers. Initially some courts ruled that federal employees lacked a remedy for retaliation. The Supreme Court specifically overruled those cases. Gomez-Perez v. Potter, #06-1321, 128 S.Ct. 1931 (2008).
     EEOC revises ADEA regulations to conform to General Dynamics Land Sys. v. Cline, 540 U.S. 581 (2004); the 6-to-3 holding had rejected the claims of employees in their 40s who would not receive the same retirement health benefits as the employer's older employees. Coverage Under the Age Discrimination in Employment Act, EEOC Amendment to 29 C.F.R. Part 1625, 72 (129) Fed. Reg. 36873 (7/6/07).
     City's "Leave Donation Program," under which employees can donate excess leave to coworkers who have medical problems, violates the ADEA because workers age sixty or older could not participate. EEOC v. City of Independence, #05-4489, 2006 U.S. App. Lexis 31499 (8th Cir. 2006). [N/R]
     Because a sheriff's benefits plan resulted in younger workers who were disabled to receive higher benefits than older workers would receive, the EEOC established a prima facie violation of the ADEA, because the plan was facially discriminatory. EEOC v. Jefferson Co. Sheriff's Dept., #03-6437, 467 F.3d 571, 2006 U.S. App. Lexis 26981, 99 FEP Cases (BNA) 180, 2006 FED App. 0405P (6th Cir.). {N/R}
     A federal employee that elected to pursue an age discrimination appeal before the Merit Systems Protection Board is obliged to follow that route through to completion, to the exclusion of any other remedy that otherwise might be available. Stoll v. Principi, #05-2483, 2006 U.S. App. Lexis 13962 (1st Cir. 2006). {N/R}
      Federal court upholds a proposed EEOC Regulation [68 (134) Fed. Reg. 41542-49] that will allow employers to provide retirees 65 and older with health benefits that are inferior to the benefits given to younger retirees. AARP v. EEOC, #05-CV-509, 2005 U.S. Dist. Lexis 21495 (E.D.Pa. 2005), relying on language in National Cable v. Brand X, 125 S.Ct. 2688 (2005).
     The EEOC notes that rising health care costs and a larger numbers of workers nearing retirement age created an incentive for employers to eliminate all health benefits for retirees. {N/R}
    Sixth Circuit rejects an EEOC age discrimination charge brought against a county because disability pensions are restricted to workers under age 55 and the disabled applicant was a 61 year-old deputy sheriff. EEOC v. Jefferson Co. Sheriff's Dept., #03-6437, 424 F.3d 467, 2005 U.S. App. Lexis 20053, 2005 FED App. 0397P, 96 FEP Cases (BNA) 801 (6th Cir. 2005). {N/R}
     A retirement incentive plan that excludes persons over age 65 violates the Age Discrimination in Employment Act and is discriminatory on its face. Jankovitz v. Des Moines Sch. Dist., #04-3401, 421 F.3d 649, 96 FEP Cases (BNA) 695, 2005 U.S. App. Lexis 18557 (8th Cir. 2005). {N/R}
     Federal appeals panel rejects an age bias suit where a city worker failed to establish that she was subjected to a severe or pervasive hostile work environment, because of her superior's "silent treatment" of her and various age-related remarks. MacKenzie v. C&C of Denver, #02-1468, 414 F.3d 1266, 2005 U.S. App. Lexis 14225, 96 FEP Cases (BNA) 357, 16 AD Cases (BNA) 1616 (10th Cir. 2005). {N/R}
     Appeals court declines to enforce a release and waiver of rights under the ADEA because the wording was unclear and the employer declined to explain what it meant. Thomforde v. IBM, # 04-1538, 406 F.3d 500, 2005 U.S. App. Lexis 7592, 95 FEP Cases (BNA) 1145 (8th Cir. 2005). [2005 FP Aug]
     U.S. Supreme Court rules 5-to-3 that employers can be sued under the ADEA for employment actions that have a disparate impact on older workers. However, the Jackson, Mississippi, police officers and dispatchers who brought this particular case failed to prove their claim. Smith v. City of Jackson, #03-1160, 2005 U.S. Lexis 2931, 125 S.Ct. 1536 (2005). {N/R}
     Employer was not entitled to terminate a 73 year-old driver because a new insurance policy excluded drivers over age 70. Enlow v. Salem-Keizer, #02-35881, 371 F.3d 645, 2004 U.S. App. Lexis 11428, 93 FEP Cases (BNA) 1601 (9th Cir. 2004). {N/R}
     EEOC approves a final regulation that allows employers to reduce or end health benefits when a retiree becomes eligible for Medicare or under a comparable state retiree health plan, without violating the Age Discrimination in Employment Act. Age Discrimination in Employment Act: Retiree Health Benefits, 29 CFR Parts 1625 & 1627, RIN 3046-AA72, 72 (40) U.S. Law Week 2640 (2004). {N/R}
     Supreme Court holds that an employer may provide different benefits for retired workers, for those over age 50, and those under 50. The ADEA, which protects workers who are age 40 and older, offers no protection for younger workers against enhanced benefits for older employees, because it was enacted to protect older, not younger, workers. Gen. Dynamics Land Sys. v. Cline, No. 02-1080, 2004 U.S. Lexis 1623, 72 U.S.L.W. 4168 (2004). {N/R}
If an employee cannot show lost wages, he cannot recover any damages in an ADEA action because "the ADEA does not permit a separate recovery of compensatory damages for pain and suffering or emotional distress." Beverly v. Desmond Hotel, #02-6712, 2004 U.S. Dist. Lexis 353 (E.D. Pa. 2004). {N/R}
    A divided Fifth Circuit holds that age-differentiated pay increases were not subject to challenge under a "disparate impact" test, but could be challenged under a "disparate treatment" theory. Smith v. City of Jackson, MS, No. 02-60850, 2003 U.S. App. Lexis 23125 (5th Cir. 2003). [2004 FP Jan]
     Reverse discrimination: a divided Sixth Circuit has held that the ADEA allows younger workers to sue when older employees were given benefits they are denied. The U.S. Supreme Court has agreed to hear an appeal. Cline v. General Dynamics, 296 F.3d 466, 2002 U.S. App. Lexis 14643, 2002 FED App. 0242P (6th Cir.); cert. granted, 123 S.Ct. 1786, 2003 U.S. Lexis 2949 (2003). {N/R}
     Federal appeals court declines to overturn a $246,774 ADEA verdict because the plaintiff's economic expert allegedly lacked "sufficient facts and data, scientific principles, and reliable methods" to render a valid opinion. Hartley v. Dillard's, #02-1298, 2002 U.S. App. Lexis 23727 (8th Cir. 2002). {N/R}
     The EEOC plans to allow ADEA complainants to file a lawsuit, 60 days after filing of a charge with the Commission, and without waiting for a Notice of Dismissal or Termination to be issued. Procedures - Age Discrimination in Employment Act, 29 CFR Part 1626, 67 (155) Federal Register 52431-52433 (Aug. 12, 2002). {N/R}
     Employers cannot be sued for a suicide following an allegedly age-biased reduction in the workforce. Kulling v. Grinders, #99-74339, 115 F.Supp.2d 828, 2000 U.S. Dist. Lexis 15134 (E.D. Mich.). [2001 FP 19]
     $5,956,751 in back pay and statutory penalties awarded to a terminated executive (then 62 years-old). Jury found the defendant company wanted a younger image. Riseman v. Advanta Mortgage, unreported, verdict described in The Legal Intelligencer 12/7/2000 (E.D. Pa.). {N/R}
     Older workers who did not receive an offer of a severance package did not suffer an adverse employment action as long as the employer retained their services. Cooney v. U.P.R.R., #No 00-3425, 258 F.3d 731, 2001 U.S. App. Lexis 16271, 86 FEP Cases (BNA) 829 (8th Cir. 2001). {N/R}
     Two Federal Circuits rule against public employees who brought civil rights suits to set aside transfers allegedly motivated by advancing age. ADEA, not Sec. 1983, provides the appropriate remedy for age based discrimination claims. Izquierdo Prieto v. Mercado Rosa, 894 F.2d 467 (1st Cir. 1990).
     U.S. Supreme court upholds arbitrability of statutory employment discrimination claims (under the A.D.E.A.); employee waives right to sue in court. Gilmer v. Interstate/Johnson Lane Corp., 111 S.Ct. 1647 (1991). {N/R}
     Juries awarding substantial verdicts for emotional distress in age discrimination suits. Shapiro v. Halmar, Hampden Co. Super. Ct. #84-1836 (1988).
     Federal appeals court establishes formula for computing damages in age discrimination cases. Wages earned in other employment are deducted from double back pay award. Kossman v. Calumet County, 849 F.2d 1027 (1988).
     Firefighter who was denied promotion due to age must receive all the benefits of higher rank; no need to demote others. Civil Service Cmsn. of Waterbury v. Cmsn. of Human Rights and Opportunities, 195 Conn. 226, 487 A.2d 201 (1985).
     Federal court upholds an EEOC subpoena for allegedly irrelevant documents in an ADEA inquiry. "A party may not defeat an agency's authority to investigate by raising what could be a defense if the agency subsequently decides to bring an action against the party." EEOC v. Delaware State Police, 618 F.Supp. 451, 1985 U.S. Dist. Lexis 15275, 39 FEP Cases (BNA) 81 (D. Del.). {N/R}

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