Snyder v. City of Chicago

Filing 95

MEMORANDUM Opinion and Order signed by the Honorable Elaine E. Bucklo on 6/23/2017. Mailed notice. (mgh, )

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

Anthony Snyder,

)
)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,

v.
City of Chicago
Defendant.

No. 15 C 1160

Memorandum Opinion and Order
In this action, plaintiff Anthony Snyder, a paramedic with
the Chicago Fire Department (“CFD”), complains that the City of
Chicago violated the Age Discrimination in Employment Act, 29
U.S.C.

§ 623

opportunity

(“ADEA”)
for

when

it

“cross-over

failed

to

training”

offer
to

him
become

the
a

firefighter/paramedic based on his age. Before me is the City’s
motion for summary judgment, which I grant for the reasons that
follow.
I.
On

or

around

“Firefighter/EMT

March

Examination

7,

2006,

the

Announcement”

City
stating

issued

a

that

a

written examination would be administered on May 25 and 26,
2006,

as

“the

first

step

in
1

the

Chicago

Firefighter/EMT

examination

process.”

(the

Exam

“2006

Pl.’s

L.R.

56.1(b)(3)(C)

Announcement”).

The

2006

Stmt.,

Exam

Exh.

8

Announcement

included the statement, “NOTE: Pursuant to the Municipal Code of
Chicago 2-152-410, an applicant above the age of 38 may not be
appointed.”

The

referenced

section

of

the

Municipal

Code

provides:
No person above the age of 38 may receive initial
appointment
as
a
probationary
career
service
firefighter
or
firefighter/EMT
with
the
fire
department and no person above the age of 40 may
receive initial appointment as a probationary career
service police officer with the police department.
Provided, however, that these age restrictions shall
not apply to initial appointment as a probationary
career service police officer or firefighter or
firefighter/EMT from employment lists in existence on
the date of passage of this ordinance.
M.C.C. § 2-152-410(e).1
Plaintiff was hired as a paramedic in CFD’s Division of
Emergency Services on April 3, 2006, when he was thirty-two
years old. Shortly thereafter, he took and passed the written
examination

announced

in

the

2006

Exam

Announcement

and

was

placed on the firefighter “eligibility list” for training at the
fire

academy.

assigned

Placement

randomly

based

order
on

the

on

the

eligibility

candidates’

social

list

is

security

numbers. Aff. of Charles Stewart, III, Def.’s L.R. 56.1(A)(3)
Stmt., Exh. C at ¶ 11. In addition, pursuant to the parties’
1

When enacted, the ordinance provided that age 35 was the limit,
but the ordinance was amended in March of 2006, just prior to
the issuance of the 2006 Exam Announcement. See Def.’s L.R.
56.1(a) Stmt., Exhs. D-F.
2

Collective Bargaining Agreement, ten percent of each firefighter
candidate class is reserved for “cross-overs,” i.e., individuals
who,

like

plaintiff,

are

paramedics

already

employed

by

the

City, and who are selected for firefighter training based on
seniority. Id.
Plaintiff’s

randomly

assigned

number

on

the

eligibility

list was 7736, which he acknowledges would have put him “out of
the

running”

placement

on

56.1(b)(3)(C)

for

firefighter

the
Stmt.,

cross-over
Exh.

9;

training

were

eligibility
Opp.

at

2-3.

it

list.

not

for

Pl.’s

Plaintiff

his
L.R.

further

acknowledges that the first firefighter training class in which
he would have been eligible to participate based on his position
on the cross-over eligibility list began on March 14, 2014.
Def.’s L.R. 56.1(a)(3) Stmt., ¶ 25; Stewart Aff., ¶ 12. By that
time, however, plaintiff was forty years old—two years over the
age limit established in § 2-152-410(e). Accordingly, the City
did not invite him to participate in firefighter training.
Plaintiff filed timely a charge of discrimination with the
Illinois Department of Human Rights and the Equal Employment
Opportunity Commission based on the City’s failure to afford him
the opportunity to join the training class that began on March
14, 2014.2 On September 30, 2014, the IDHR dismissed the charge

2

The charge states that the candidate class began on March 4,
2014, but all other evidence in the record cites the date as
March 14.
3

for lack of substantial evidence. Pl.’s L.R. 56.1(b)(3)(C) Stmt.
Exh. 13. This lawsuit followed.
II.
The ADEA generally protects workers forty and over from
age-based discrimination in employment. Its protection of older
workers is not limitless, however. When the statute was enacted
in

1967,

it

did

not

apply

to

state

and

local

government

employees. Minch v. City of Chicago, 363 F.3d 615, 618 (7th Cir.
2004).

Indeed,

as

“[h]istorically,

the

Seventh

Chicago,

like

Circuit
many

explained

other

state

in

Minch,

and

local

governments, has placed age limits on the employment of its
police and firefighting personnel.” Id. After Congress amended
the ADEA in 1974 to bring state and local government employees
within

its

scope,

these

age

limits

became

vulnerable

to

challenge, prompting Chicago’s City Council to modify them to
align with the statute. Id.
In

response

to

concerns

raised

by

state

and

local

governments, however, Congress again amended the ADEA to exempt
state and local rules establishing hiring and retirement age
limits

for

police

Since

1996,

the

officers
ADEA

has

and

firefighters.

expressly

Id.

authorized

at

618-19.

such

limits

pursuant to 29 U.S.C. § 623(j). That section provides that it is
not unlawful for a state or its political subdivisions “to fail
or refuse to hire or to discharge any individual because of such
4

individual’s age if such action is taken...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. § 6230(j)(2).3
In 2000, the Chicago City Council exercised its authority
under
3

the

exemption

and

enacted

Municipal

Code

§ 2-152-410.

In full, the 1996 exemption provides:
(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—
(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

Minch,

363

ordinance
mandatory

F.3d

in
age

at

Minch

617.
and

limits

The

Seventh

considered
for

public

Circuit

under

examined

what

safety

the

circumstances

personnel

might

constitute “a subterfuge to evade the purposes of the ADEA.” 363
F.3d at 617. It concluded that “[w]hat 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
629. For example, the court explained, a plaintiff would have a
valid subterfuge claim if he or she could show that a state or
city government imposed age limits on public safety personnel
“in

order

to

retaliate

against

one

or

more

employees

for

protesting practices made illegal by the ADEA,” or could show
that a local government “reduc[ed] the wages of all workers
while substantially increasing the benefits provided to younger
workers” as a means of effectuating wage discrimination against
older

workers.

Id.

at

630.

But

where

age

maximums

are

used

precisely to establish a cap on the age at which police officers
or firefighters can serve in those capacities, they amount to
“the very type of age-based discrimination...that the statute
permits,” and are not “a vehicle to commit some other type of
age

discrimination

forbidden

by

the

ADEA.”

Id.

Accordingly,

there is no subterfuge. Id.
Plaintiff does not dispute that § 2-152-410 is generally a
bona fide hiring plan, nor does he identify any “other type of
6

age discrimination forbidden by the ADEA” that is effectuated by
§ 2-152-410.
ordinance’s
district

Indeed,

since

application

have

the

in

reiterated

Seventh

Minch,

that

it

Circuit

several

complies

upheld

courts
with

the

in

the
this

§ 623(j)

exemption. See, e.g., Ledbetter v. City of Chicago, No. 13 CV
9302, 2014 WL 4555579, at *3 (N.D. Ill. Sept. 15, 2014) (Dow,
J.); Vicenteno v. City of Chicago, No. 14 CV 2574, 2014 WL
4122863,

at

Nevertheless,

*1-*2

(N.D.

plaintiff

Ill.

contends

Aug.
that

21,

2014)

(Shah,

J.).

the

City’s

reliance

on

§ 2-152-410 to exclude him from the March 14, 2014, training
class amounted to a subterfuge because he did not fall within
the

category

of

candidates

to

whom

its

maximum

hiring

age

facially applies: candidates seeking an “initial appointment as
a probationary career service firefighter or firefighter/EMT.”
In plaintiff’s view, the testimony of the City’s Fed. R.
Civ. P. 30(b)(6) witness, former First Deputy Fire Commissioner
Charles Stewart, III, establishes that employees assigned to the
CFD have one and only one “initial appointment” date, which is
their date of hire. Plaintiff then reasons that because he was
hired as a paramedic on April 3, 2006, he could not have been
seeking an “initial appointment” as a firefighter/EMT when he
applied

for

the

position

announced

in

the

2006

Exam

Announcement. From this, plaintiff concludes that while § 2-152410 may comply with § 623(j) as applied to new hires, it does
7

not fit within the ADEA exemption when applied to cross-over
candidates like him. Neither the facts nor the law supports this
argument.
First, setting aside that plaintiff cites to several pages
of Deputy Stewart’s deposition testimony that are not in the
record,4

the statements he extracts do not controvert Deputy

Stewart’s testimony elsewhere that it was the policy of the CFD
to subject “all persons wishing to become firefighters to the
age restriction” set forth § 2-152-410, regardless of whether
they were cross-over candidates or prospective new hires, and
that a candidate’s age is considered as of the first date of
attendance in the candidate training class. Stewart Aff., ¶¶ 13,
15. The essence of Stewart’s cited deposition testimony is that
an employee’s “initial appointment” generally correlates to his
or her “career service date,” “date of hire,” and “seniority.”
See Stewart Dep., Pl.’s L.R. 56.1(b)(3)(C) Stmt., Exh. 7, at 1618.

But

even

ascertaining

assuming

seniority

that

in

under

the

some

contexts—such

CBA—an

employee’s

as

for

“initial

appointment” is the same as his or her date of hire, it makes no
4

Plaintiff cites pages 16-19 and 63 of Deputy Stewart’s
deposition transcript, but neither page 19 nor page 63 is
included in the excerpt plaintiff attaches as Exh. 7 (as
numbered on the CM/ECF docket; plaintiff identifies it as Exh.
6) to his L.R. 56.1(b)(3)(C) Statement. In the remaining pages,
Stewart’s only reference to an “initial appointment” is as
follows: “Q: Your initial appointment was the date you were
hired back in 19 – September 1st, ’76, correct? A: My career
service date was September 1, 1976, correct.” Stewart Dep. at
16:17-20.
8

sense,

in

the

context

of

§ 2-152-410,

to

sever

the

phrase

“initial appointment” from the terms that immediately follow it,
which define the nature of the job categories at issue, and are
the raison d’être of the ordinance itself. Indeed, the whole
point of the ordinance is to place limits on the ages at which
an individual can become (in the case of hiring), and remain (in
the case of retirement) a career service public safety employee.
As

the

City

correctly

points

out,

traditional

rules

of

statutory construction require that the ordinance be construed
to give effect to the legislative intent, and that it must be
read as a whole and afforded its plain and ordinary meaning.
People v. Marshall, 950 N.E. 2d 668, 673 (Ill. 2011). A natural
reading of § 2-152-410, taken as a whole, reflects the Chicago
City Council’s determination that individuals who qualify, for
the

first

time,

for

positions

that

perform

firefighting

functions may not be appointed to those positions if they are
older

than

employees

38,

regardless

qualified

to

of

whether

perform

other

they

are

already

functions.

City

Indeed,

to

construe the ordinance as mandating an age maximum only for new
hires,

while

allowing

cross-over

candidates

to

take

on

firefighting positions at any age, would undermine, rather than
further, the ordinance’s stated purpose. See Minch, 363 F.3d at
620-21 (noting that the preamble of the ordinance cited the

9

protection of “the safety of Chicago residents” as its purpose);
§ 2-152-410 (preamble).
Nothing in plaintiff’s lengthy discussion of the skills,
licenses, and pay rates of the various unit ranks and titles of
CFD employees is to the contrary. Although plaintiff devotes the
bulk of his submissions to these issues, the argument section of
his

opposition

brief

fails

to

tie

them

to

any

cogent

legal

theory supporting an ADEA violation. In his sur-reply, plaintiff
asserts that “the age 38 ordinance applies only if the ‘initial
appointment’ is to the position of Firefighter/EMT,” a rank he
contends

is

“reserved

for

new

employees,

not

crossing-over

paramedics who become FF/PMs.” Sur-reply at 5. As I understand
this argument, plaintiff contends that because his credentials
as

a

paramedic

were

superior

to

those

required

for

the

Firefighter/EMT position announced in the 2006 Announcement, he
would have become a firefighter/paramedic, or “FF/PM,” not a
“Firefighter/EMT”

upon

successful

completion

of

firefighter

training, and thus was not subject to the age restriction on
candidates

for

“initial

appointment

as

a

probationary

career

service firefighter or firefighter/EMT.” Even if plaintiff is
correct, however, about the rank he would have held if he had
completed firefighter training, his argument is unpersuasive.
Naturally,

the

broad

job

categories

of

“firefighter,”

“firefighter/EMT,” and “police officer” covered by the ordinance
10

encompass numerous ranks, positions, and job titles within each
of the relevant departments. But it would be unreasonable to
expect

that

an

ordinance

such

as

§ 2-152-410,

whose

stated

purpose is to maximize public safety by capping the age at which
public safety personnel can perform the duties associated with
their positions, to draw fine distinctions among the various
ranks and titles within the broadly recited job categories. Nor
does plaintiff cite any evidence, or articulate any reasoned
basis, to suggest that the City Council intended to restrict the
age of incoming firefighters and firefighter/EMTs, but not to
restrict
events,

the

age

nothing

of
about

incoming
the

firefighter/paramedics.

facts

plaintiff

raises

At
in

all
this

connection reasonably suggests that the City’s application of
§ 2-152-410 to cross-overs amounts to “a subterfuge to evade the
purposes of the ADEA” under the standard articulated in Minch.
Plaintiff raises two additional arguments, but each fails
to rebut the City’s evidence that its application of § 2-152-410
to cross-overs is pursuant to a bona fide hiring plan and not a
subterfuge to violate the purposes of the ADEA. In a similar
vein to his argument that cross-over candidates do not seek
“initial

appointments”

as

firefighting

personnel,

plaintiff

argues that cross-overs are outside the scope of the § 2-152-410
hiring age restriction because the restriction applies only to
candidates for initial appointment as a “probationary” career
11

service firefighter or firefighter/EMT, while cross-overs have
already served the nine-month probationary period established by
the CBA. But the fact that the CBA imposes a probationary period
on “[n]ew employees” does not preclude the construction of § 2152-410

as

applying

equally

to

cross-over

firefighter

candidates, who, as plaintiff concedes, “are subject to return
to their paramedic position should they be unsuccessful at the
academy.” Def.’s L.R. 56.1 Stmt., ¶ 29. Moreover, as discussed
above, construing the ordinance as equally applicable to all
first-time candidates for firefighting positions accords with
the ordinance’s stated purpose.5
Plaintiff’s final argument, which relates specifically to
Count II of his complaint, is the most perplexing. In Count II,
plaintiff alleges that because he was already a City employee at
5

Although plaintiff frames his claims in terms of subterfuge,
his argument that § 2-152-410 does not apply to cross-over
candidates seems better suited to the theory that while the
ordinance may be a bona fide hiring plan, the City’s decision to
exclude him from training as a cross-over candidate was not made
pursuant to that plan. As the Seventh Circuit explained in Davis
v. Indiana State Police, 541 F.3d 760, 763 (7th Cir. 2008),
“[s]ection 623(j)(2) requires the state to act ‘pursuant to a
bona fide hiring...plan’ (emphasis added). It is not enough to
have a plan.” (ellipses, parenthetical, and emphases in
original). Under Davis, plaintiff could potentially prevail on
evidence that the City sometimes allowed cross-overs older than
38 to train for jobs within the scope of § 2-152-410, but
declined to allow him to do so, since a jury could reasonably
conclude on those facts that the decision not to hire him was
not, in fact, “pursuant to” a bona fide plan. While that theory
might rest on sounder legal footing, however, it is at odds with
the
record
here,
as
Deputy
Stewart
testified
without
contradiction that the department’s policy is to apply § 2-152410 equally to new hires and cross-overs.
12

the time he applied for the position announced in the 2006 Exam
Announcement, the City’s age-based decision not to select him
for firefighter training was not “a failure or refusal to hire”
as required to fall within ADEA’s § 623(j) exemption. But as
defendant points out, plaintiff has no claim at all under the
ADEA unless he alleges an adverse action. While plaintiff is
entitled to frame his claim any way he wishes—as a failure to
hire, a failure to promote, or a decision amounting to some
other legally cognizable adverse action—he must, at this stage,
articulate some theory on which a jury could conclude, based on
the evidence, that defendant engaged in age-based discrimination
of a kind other than the kind expressly permitted by § 623(j)(2)
when it declined to consider him for a firefighting position
based on his age. He has not done so.
III.
For the foregoing reasons, defendant’s motion for summary
judgment is granted.

ENTER ORDER:

Elaine E. Bucklo
United States District Judge

Dated: June 23, 2017
13