Davis v. Indiana State Police, No. 07-2543 (7th Cir. Sept. 3, 2008); Jenkins v. Winter, No. 07-2049 (8th Cir. Sept. 2, 2008); Whitman v. Mineta, No. 07-2049 (9th Cir. Sept. 8, 2008)

| Sep 2, 2008 | Daily Developments in EEO Law |

A cavalcade of employee victories — a former police officer threads a loophole in the ADEA, 29 U.S.C. § 623(j)(2), exemption for law enforcement agencies in the Seventh Circuit; the Eighth Circuit straightens out a district court judge on an evidentiary issue; and a pro se flight data specialist enjoys a reversal of fortune in the Ninth Circuit, owing to a recent Supreme Court decision.

Davis v. Indiana State Police, No. 07-2543 (7th Cir. Sept. 3, 2008):  Here’s a state trooper who left the force at age 42 and tried to return two months later, only to have the department bar his return because of his age (the maximum hire-age under state policy was age 40).  This complaint was dismissed for failure to state a claim because the district court believed that the decision was entirely subsumed by the law-enforcement exemption under 29 U.S.C. § 623(j)(2):  that decisions “pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter” are beyond the ADEA.  Judge Easterbrook, writing for the panel, holds that the age-40 cut-off policy was “bona fide,” in the sense that it was the “real rule,” even if its application was harsh or irrational.

But, aha!, the former trooper gets a second shot at another theory:  that the failure to rehire him was not “pursuant to a . . . . plan” at all, and therefore not exempt:

“Section 1-4-18, which spells out the procedure if a former trooper applies for reinstatement, has some curious language:

“The applicant shall meet all the requirements for police employees as specified in 240 IAC 1-4-2 and 240 IAC 1-4-3 subject to the approval of the superintendent and the board.

“240 Ind. Admin. Code §1-4-18(b)(4). What does ‘subject to the approval of the superintendent and the board’ mean? It could mean that the superintendent and board must decide whether the applicant satisfies the two listed sections; that would be unproblematic. Another possibility, however, is that the phrase means something like ‘if the superintendent and the board decide to enforce those rules.’ A power to set the plan aside at will-to reject Davis as too old at age 42 while rehiring other ex-troopers at age 45 or 50-would mean that the decision is not pursuant to the age rules specified in §1-4-3. (We do not have a situation in which the plan itself creates exceptions.)

“When dismissing Davis’s complaint, the district court did not mention the requirement that the employer’s decision be ‘pursuant to’ the plan; the judge asked only whether Indiana has a bona fide plan. Having a bona fide plan is not enough; that plan must be applied to yield the contested decision.”

So the plaintiff goes back to challenge the policy under this alternative argument, that the termination was not “pursuant” to the plan but subject to the caprice of the responsible decision-maker.

Moreover, as the panel recognized, the section here at issue is an affirmative defense which (at the pleadings stage) need not be anticipated in the complaint in any event:  “Defending its judgment on appeal, the employer contends that Davis’s complaint does not adequately plead that the decision was not made ‘pursuant to’ the plan. But a complaint need not plead this; it is enough to plead the claim (here, that the state held Davis’s age against him, and that he was at least 40 years old and thus protected by the ADEA). Section 623(j) affords the state an affirmative defense; on this subject Indiana bears the burdens of both production and persuasion. . . . Complaints need not anticipate, and attempt to plead around, potential affirmative defenses.”

Jenkins v. Winter, No. 07-2049 (8th Cir. Sept. 2, 2008):  Summary judgment reversed in a Title VII sex harassment case against the Navy.  And here we see a neat bit of appellate advocacy.  The agency successfully struck the employee’s witness affidavit (in response to summary judgment) on the ground that it was not submitted under oath.  But the employee’s attorney came armed on the day of oral argument:  “At oral argument, the original of the Frank Waranch affidavit was presented to the court. It is a valid affidavit – signed, attested before a notary public, and bearing a notary seal.” With that affidavit, and addition al facts that the district court disregarded, the plaintiff made out a triable issue of fact on her hostile work environment claim.

Whitman v. Mineta, No. 07-2049 (9th Cir. Sept. 8, 2008):  Most of this six-page opinion is devoted to an ordinary affirmance of a dismissal of a federal sector ADEA case. The detour is the plaintiff’s retaliation claim, where he “alleges that he was denied an extension of a work detail, denied a promotion, and subjected to acts of intimidation due to animus surrounding his discrimination complaint.”  When the case was before the district court, the judge held that federal sector employees had no cause of action for ADEA retaliation.  But the Supreme Court straightened this issue out (5-4) in Gomez-Perez v. Potter, 128 S. Ct. 1951 (2008), and the agency withdrew its defense of this claim.  So back it goes for discovery

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