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Employment & Labor Law for Public Safety Agencies


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Age Discrimination - Entry

     Cities that participate in a statewide police pension fund are subject to its age requirements. The trial court properly dismissed an age bias lawsuit of an applicant who was rejected for being over age 45. 29 U.S. Code §623(j) "provides that it shall not be unlawful for a local government to refuse to hire a person for a law enforcement position on the basis of age, if that person is over the maximum age of hire that the local government had in effect for that position as of March 3, 1983 ..." Kannady v. City of Kiowa, #07-7002, 590 F.3d 1161, 2010 U.S. App. Lexis 229 (10th Cir.).
     Montana Supreme Court strikes down an age 34 upper limit for firefighters. It violated the equal protection clause of the state's constitution. Jaksha v. Butte-Silver Bow County, #DA 08-0457, 2009 MT 263, 214 P.3d 1248, 2009 Mont. Lexis 398, 106 FEP Cases (BNA) 174.
    A state statute imposing 34-year-old age limit on firefighter hiring violated the equal protection clause of the Montana Constitution. The statutes legislative history was not supported by any empirical studies to justify the cut-off point at 34 years and the claim that period of productivity of a firefighter over 34 might be shorter was not a safety concern. Jaksha v. Butte-Silver Bow Co., #DA 08-0457, 2009 MT 263, 352 Mont. 46, 106 FEP Cases (BNA) 1746, 2009 Mont. Lexis 398.
     It was not a violation of the ADEA for a state police agency to decline to rehire a trooper over age 40 who quit and 2 months later applied for reinstatement, because the plaintiff is past the age for new appointees. If, however, management has overlooked the age requirement in past instances, "the decision not to rehire him was not made pursuant to a bona fide plan." Davis v. Indiana State Police, #07-2543, 2008 U.S. App. Lexis 8811 (7th Cir.).
     Fifth Circuit affirms the dismissal of an ADEA action brought by a 49-year-old rejected police applicant. He gave unacceptable answers to hypothetical police scenarios and appeared unable to logically process information. Joseph v. City of Dallas, #07-11235, 2008 U.S. App. Lexis 9742 (Unpub. 5th Cir.).
     Second Circuit upholds a N.Y. statutory age limit of 35 for new police officers; the law does not violate the ADEA. In 1986 the Congress amended the ADEA to provide state and local governments an exception covering the employment of law enforcement officers and firefighters. Pub. L. 99-592, 100 Stat. 3342, codified at 29 U.S. Code §623(i). Feldman v. Nassau County, #05-0444, 434 F.3d 177, 2006 U.S. App. Lexis 453, 97 FEP Cases (BNA) 449 (2d Cir. 2006). {N/R}
     Rejection of a 51-year-old police applicant because he was over the maximum age of 35 "was rationally related to the legitimate state interest of conserving financial resources, as well as ensuring a physically capable police force ... and fell within the ADEA's law enforcement exception." Feldman v. Nassau Co. Police Dept., #04-CV-0900, 349 F.Supp.2d 528, 2004 U.S. Dist. Lexis 25054 (E.D.N.Y. 2004). {N/R}
     Federal court upholds a maximum entry age of 35 for police officers in New York. Feldman v. Nassau Co., #04-CV-0900, 2004 U.S. Dist. Lexis 25054 (E.D.N.Y. 2004). {N/R}
     A 74-year-old Philadelphia police recruit, who was removed from the academy after failing firearms and running tests, loses his age discrimination lawsuit. Brophy v. City of Philadelphia Police Dept., #03-CV-4139, 2004 U.S. Dist. Lexis 14665 (E.D. Pa. 2004). [2004 FP Nov]
     Federal appeals court upholds maximum entry age of 32 for Boston police officers. Donohue v. City of Boston, #03-2227, 2004 U.S. App. Lexis 11204 (1st Cir. 2004).{N/R}
     Federal appeals court disallows a civil rights suit filed by a firefighter applicant who was rejected because he was over age 36; he lacked a property interest in a prospective position as a city firefighter. Moore v. Muncie Police and Fire Cmsn., #01-3175, 312 F.3d 322, 2002 U.S. App. Lexis 24598 (7th Cir. 2002). {N/R}
     The fact that a police applicant is presently too old under state law to be appointed does not prevent him from recovering for race discrimination, as he was under the maximum age when he was not hired. O'Neal v. City of New Albany, #00-3091, 2002 U.S. App. Lexis 11740 (7th Cir. 2002). {N/R}
     Federal court refuses to dismiss an ADEA suit by a 61-year-old police applicant. Purdy v. Town of Greenburgh, #00 Civ. 4363, 178 F.Supp.2d 439 (S.D.N.Y. 200). [N/R]
     Older firefighter who failed to pass a college-based fire academy could bring federal and state age bias claims against the academy, even though he was not an employee of the college. Claims against the city and union also survive a motion to dismiss. Tyrrell v. City of Scranton, #3:CV-00-0738, 2001 U.S. Dist. Lexis 3419, 134 F.Supp.2d 373 (M.D.Pa. 3/2/2001). [2001 FP 51]
     Dropping a woman applicant from the firefighter eligibility list after she reached the maximum age of 35 did not violate Title VII. The city's home rule ordinance prevailed over state law. Demick v. City of Joliet, 135 F.Supp.2d 921 (N.D. Ill.). {N/R}
     Police Dept. lawfully rejected a 45-year-old applicant because the 1996 amendment to the ADEA was retroactive to 1993 and extinguished his claim. Kopec v. Elmhurst, #98-858, 193 F.3d 894, 1999 U.S. App. Lexis 24657, 80 FEP Cases (BNA) 1842 (7th Cir. 1999). {N/R}
     A new Massachusetts law sets the maximum age for appointment as a local firefighter or police officer at 32, extended for up top 4 years for active military service. General Laws Ch. 31 Sec. 58 (8-10-00). {N/R}
     Two 60 year-old former L.A. police cadets recover $1,950,000 for age bias; both had been terminated for allegedly harassing women cadets. LaGorio {and Robinson} v. City of Los Angeles, L.A. Super.Ct., 37 (1800) G.E.R.R. (BNA) 221; p. B-1 L.A. Times, Art. #0990014381, 2/15/99. [1999 FP 51]
     Federal court in NYC upholds maximum entry age of 35. 1996 ADEA public safety exception is controlling; Equal Protection claims fail. Peterson v. City of N.Y., 1998 U.S. Dist. Lexis 7082 (S.D.N.Y.). [1998 FP 115]
     Federal court refuses to dismiss suit of a 49 year-old applicant who allegedly was rejected because he was "overqualified." Hamm v. NYC Comptroller, 1998 U.S. Dist. Lexis 2345 (S.D.N.Y.). [1998 FP 68]
     Congress amends the ADEA to allow governmental public safety agencies to impose a maximum entry age. Age Discrimination Amendment, 29 U.S. Code 623(j), 142 (137-1) Congressional Record H11651 (9/28/96). [1997 FP 3]
     EEOC prevails in attacking a maximum entry age requirement of N.Y. State Parks Police. EEOC v. New York, 1996 U.S.Dist. Lexis 9595 (S.D.N.Y.). [1997 FP 3]
     Federal appeals court upholds rejection of an "overqualified" applicant; probable job dissatisfaction is a legitimate basis for exclusion. EEOC v. Ins. Co. of Amer., 49 F.3d 1418 (9th Cir. 1995). [1995 FP 83]
     41-year-old LAPD academy ex-trainee wins $814,000 for allegedly age-biased proficiency scores, resulting in his termination. DeTeresi v. City of Los Angeles, L.A.Co. Docket #BC052988; 107 (223) L.A.D.J. {V&S} 6. (Super.Ct. 1994). [1995 FP 35]
     Applicant who lacked educational requirements for appointment as a police officer could not recover against the city for age discrimination, even if the city arbitrarily rejected him because of his age. Civ. Serv. Cmsn. v. Iowa (Montz), 522 N.W.2d 82 (1994). [1995 FP 55-6]
      New York abolishes age 29 maximum for police officers. Statutory revision allows the state's Civil Service Cmsn. to approve age requirements that are reasonable minimum qualifications for the job. N.Y.L. 1994 Ch. 278, 32 (1573) G.E.R.R. (BNA) 883. {N/R}
     When computing whether an ADEA suit is timely filed, the claim accrues as of the date the applicant is passed over in favor of a younger person, and not the earlier date his name was removed from the eligibility list. Petrelli v. City of Mount Vernon, 9 F.3d 250 (2nd Cir. 1993). {N/R}
     Federal court orders a city to hire a 40-year old officer because it did not have a maximum age limitation on 3-3-83. Petrelli v. City of Mt. Vernon, 796 F.Supp. 748 (S.D.N.Y. 1992). [1993 FP 51]
     Federal court rules a person attains a specific age on his or her birthday, not before. Bailey v. City of Lawrence, 972 F.2d 1447 (7th Cir. 1992). [1993 FP 51]
     Federal court orders a city to hire a 40-year-old officer because it did not have a maximum age limitation on 3-3-83. Petrelli v. City of Mt. Vernon, 796 F. Sup. 748 (S.D.N.Y. 1992). [1993 FP 51]
     Specific state law setting maximum age for appointment of police officers supersedes a general state law prohibiting age discrimination. Constantine v. White, 569 N.Y.S.2d 765 (A.D. 1991). [1992 FP 99]
     Federal appeals court holds that a refusal to hire a person because he is "overqualified" can be a "code word" for "too old." A jury could find that the reason masks a discriminatory purpose. Taggart v. Time, Inc., 924 F.2d 43, 54 FEP Cases (BNA) 1628 (2nd Cir. 1991). {N/R}
     State law setting maximum age for firefighters at 30 did not violate the Equal Protection Clause. Timerman v. Bence, 576 N.Y.S.2d 714 (A.D. 1991). {N/R}
     Appellate court holds that age of an applicant at time of application, not age at the time of a later scheduled exam, is to be used for minimum age purposes. Smithwick v. Levitt, 546 N.Y.S.2d 346 (A.D. 1989).
     Federal court strikes down maximum entry age of 40 law in suit by applicants for state conservation officers. EEOC v. State of W. Va. Civil Service Cmsn., 45 FEP Cases (BNA) 781, 675 F.Supp. 1021 (S.D. W.Va. 1987).
     Federal court refuses to enjoin city over maximum entry age of 31 years in Ohio fire department. Munteanu v. City of Barberton, 655 F.Supp. 1357, 43 FEP Cases (BNA) 769 (N.D. Ohio, 1987).
     EEOC settles age discrimination lawsuit against city of St. Louis Fire Department. EEOC v. City of St. Louis, U.S. Dist. Ct. (E.D. Mo. 7/2/87).
     Federal appeals court upholds New York's maximum age of 29 in suit by 30 year-old. Federal law not applicable. Doyle v. Suffolk County, 786 F.2d 523 (2d Cir. 1986).
     Indiana declines to order city to employ a 36-year old applicant; federal law did not apply. Sobieralski v. City of South Bend, 479 N.E.2d 98 (Ind.App. 1985); Rotach v. Connelie, 479 N.Y.S.2d 791 (A.D. 1984).
     Michigan holds that age majority act did not entitle 19-year-olds to apply for police and fire positions. Mich. Dept. of Civil Rights v. City of Warren, 355 N.W.2d 687 (Mich. App. 1984).
     Maximum entry age of 29 in N.Y. is discriminatory but not unlawful as to applicants 30 to 39, but violates ADEA for those over 40. Karney v. Clark, 596 F.Supp. 940 (W.D. N.Y. 1984).
     Federal appeals court upholds maximum entry age of 45 for police officers. EEOC v. Univ. of Texas, 710 F.2d 1091 (5th Cir. 1983).
     Federal court throws out Pennsylvania state statute setting maximum age of 35 for police applicants. EEOC v. County of Alleghany, 519 F.Supp. 1328 (W.D. Pa. 1981), aff'd 705 F.2d 679 (3rd Cir. 1983).
     Maximum entry age of 30 for firefighters rejected by Oregon appellate court. Civil Serv. Bd. of Portland v. Bureau of Labor, 61 Or.App. 70, 655 P.2d 1080 (1982). {N/R}
     Federal court upholds law setting maximum entry age at 29 when applicants in thirties are rejected. Colon v. City of New York, 535 F.Supp. 1108 (S.D.N.Y. 1982).
     District court finds applicants have proved that maximum entry age of 35 in fire and law enforcement violates federal law. Equal Employment Opportunity Commission v. County of Los Angeles, 526 F.Supp. 1135 (C.D. Cal. 1981), aff'd 706 F.2d 1039.
     Maximum appointment age of 36 upheld by Texas appellate court; BFOQ found on expert testimony. Poteet v. City of Palestine, 620 S.W.2d 182 (Tex. Civ. App. 1981).
     Maximum appointment age of 29 struck down as irrational and subject to impermissible exceptions. McMahon v. Barclay, 510 F.Supp. 1114 (S.D. N.Y. 1981).
     Virginia Beach consent decree protects police applicants between ages 40 and 70. EEOC v. City of Virginia Beach, Civil #79-557-N (E.D. Va. 1980).
     Federal Appeals court upholds West Virginia maximum age limitation for appointment to police forces. Arritt v. Grissell, 567 F.2d 1267 (4th Cir. 1977).
     City required to employ 54-year-old parking enforcement applicant. New York City Dept. of Personnel v. New York St. Div. of Human Rights, 396 N.Y.S.2d 845 (A.D. 1977).

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