Minch, James D. v. City of Chicago ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2702
JAMES D. MINCH and RICHARD A. GRAF,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 2586—Samuel Der-Yeghiayan, Judge.
____________
ARGUED SEPTEMBER 14, 2006—DECIDED MAY 14, 2007
____________
Before CUDAHY, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. More than two years after the
City of Chicago (the “City” or “Chicago”) agreed to disci-
pline and discharge its firefighters solely for cause, the
City adopted a Mandatory Retirement Ordinance (“MRO”)
compelling firefighters to retire at age 63. Two of the
firefighters who were forced to retire under the MRO filed
suit on behalf of themselves and others similarly situ-
ated, contending that mandatory retirement amounted
to age discrimination prohibited by the Age Discrimina-
tion in Employment Act (“ADEA”) as well as a deprivation
of procedural due process. We concluded in Minch v. City
of Chicago, 363 F.3d 615 (7th Cir. 2004), that mandatory
2 No. 05-2702
retirement of firefighters was not contrary to the ADEA.
Today we conclude that mandatory retirement did not
deprive the plaintiffs of their due process rights, because
the collective bargaining agreement did not preclude the
City from compelling its firefighters to retire at a par-
ticular age.
I.
On January 14, 1998, the City and its firefighters
entered into a collective bargaining agreement effective
for the four-year term beginning July 1, 1995 and ending
on June 30, 1999. More than five years later, on July 9,
2003, the parties entered into a successive agreement
governing the period from July 1, 1999 through June 30,
2007. In each instance, following the execution of the
agreement, the Chicago City Council enacted the agree-
ment into law. In all material respects, these two agree-
ments were identical, and for ease of discussion we
shall henceforth treat them as a single agreement (the
“CBA” or the “agreement”). We set forth the relevant
terms of the agreement below.
ARTICLE IX
SENIORITY RIGHTS
Section 9.1 Seniority
A. Seniority is defined as an employee’s length of
continuous service since his last date of hire. . . .
...
C. An employee’s continuous service and the employ-
ment relationship shall be terminated when an
employee:
No. 05-2702 3
1. Resigns or quits . . . [;]
2. Is discharged for just cause;
3. Retires or is retired;
4. Is absent for three (3) consecutive days (work-
days) without notifying the Employer’s autho-
rized representative;
5. Is laid off and fails to report for work within
ten (10) calendar days after mailing . . . a
notification of recall . . .;
6. Does not report to work after the termination
of an authorized leave of absence, . . . .
ARTICLE XIII
NO DISCRIMINATION
Section 13.1 No Discrimination
. . . In accordance with applicable law, neither the
Employer nor the Union shall discriminate against any
employee covered by this Agreement because of race,
creed, color, national origin, sex, age, religion or
political affiliation.
...
ARTICLE XVI
GENERAL PROVISIONS
...
Section 16.2 Discipline and Discharge
...
B. The Employer agrees that employees shall be
disciplined and discharged only for just cause. . . .
...
4 No. 05-2702
ARTICLE XIX
GUARANTEE OF TERMS
The Employer agrees that this Agreement shall be
immediately submitted to the City Council of the
City of Chicago for ratification and concurrent adop-
tion in ordinance form pursuant to the City’s Home
Rule authority. Such action by the Council shall
commit the City of Chicago to enact no subsequent
ordinances, executive orders or rules and regulations
having the force and effect of law which would impair
the binding effect of or make unenforceable the terms
of this Agreement.
R. 112 Ex. A.
In the years preceding the parties’ negotiation and
adoption of the Agreement, federal age discrimination law
had been in a state of flux with respect to age limits on
public safety personnel. A more complete history is set
forth in our opinion in Kopec v. City of Elmhurst, 193 F.3d
894, 896-98 (7th Cir. 1999). Briefly, when Congress
extended the ADEA to state and local governments in
1974, no exception was made for individuals employed
as police officers and firefighters; consequently, age limits
were permitted only to the extent that employers could
establish that age was a bona fide occupational qualifica-
tion for the job. See id. at 896. For a time, doubts remained
as to whether the Tenth Amendment permitted Congress
to subject state and local employees to federal anti-dis-
crimination law. See id. at 896-97. Those doubts were
put to rest by the Supreme Court’s decision in E.E.O.C. v.
Wyoming, 460 U.S. 226, 103 S. Ct. 1054 (1983). In 1986,
however, Congress amended the ADEA to exempt from
the statutory ban on age discrimination any state or
local age limits on public safety personnel which were in
place as of March 3, 1983, the day after the Wyoming case
was decided. Id. at 897. That exception expired by its
No. 05-2702 5
terms on December 31, 1993, with the result that age
limits for such personnel were once again presumptively
invalid under the ADEA. Id. Then, in 1996, Congress
reinstated the exemption retroactive to December 31, 1993
and with no expiration date. Id. at 898.
Seventy years ago, Chicago for the first time enacted an
ordinance requiring those of its police and fire personnel
holding civil service positions to retire at the age of 63. See
Malloy v. City of Chicago, 15 N.E.2d 861, 863 (Ill. 1938)
(per curiam). After the ADEA was extended to state and
local governments, and once the Supreme Court in
E.E.O.C. v. Wyoming sustained that extension, Chicago
raised the mandatory retirement age for its police officers
and firefighters to 70, beyond which age the ADEA did not
apply at that time. See Minch I, 363 F.3d at 618. After the
1986 exemption was adopted, Chicago in 1988 reinstated
a mandatory retirement age of 63 for these personnel.
Id. at 619. Following the expiration of the statutory
exemption in 1993, the City again lifted the age cap in
order to comply with the ADEA. Id. When the City and the
firefighters’ union came to terms on the CBA in 1998, the
City had not yet restored a mandatory retirement age
for its police and fire personnel, although Congress had
again authorized such age caps in 1996. Not until May
2000 did the City finally take advantage of the exemption
to put the mandatory retirement age of 63 back into
place. Id. at 620; see Chicago, Ill. Municipal Code § 2-152-
410.
On December 31, 2000, the effective date of the rein-
stated age limit, the two named plaintiffs in this action,
James D. Minch and Richard A. Graf, were required to
retire from the Chicago Fire Department against their
wishes. Minch was 64 at that time; Graf was 63.
6 No. 05-2702
Minch and Graf1 then filed suit against the City on
behalf of a class of similarly situated firefighters con-
tending, among other things, that enforcement of the
City’s MRO violated the ADEA and deprived them of their
Fourteenth Amendment right to due process.2 After the
district court (Hon. Elaine E. Bucklo) denied the City’s
motion to dismiss these claims, Drnek v. City of Chicago,
192 F. Supp. 2d 835 (N.D. Ill. 2002) (“Drnek I”), the court
1
Mandatorily-retired police officer Richard Cosentino joined
this suit on behalf of himself and similarly-situated police
officers. Separately, another police officer, Donald Drnek, filed
an individual action challenging the age limit, and the instant
suit was consolidated with Drnek’s action. Although the police
officers also challenged the mandatory retirement age on due
process grounds, the collective bargaining agreement that the
City entered into with its police officers contained a provision
expressly recognizing that nothing in that agreement pre-
cluded the City from requiring police officers to retire on or after
the age of 63. R. 7 Mem. Ex. B § 10.2. In light of that provision,
the district court concluded at the outset of the litigation that
the police officers had no protected property interest in employ-
ment beyond the age of 63 and dismissed their due process
claims. Drnek v. City of Chicago, 192 F. Supp. 2d 835, 848-49
(N.D. Ill. 2002). Consequently, once this court ordered the
dismissal of the age discrimination claims in Minch I, the police
officers had no remaining claims. The police officers have not
challenged the dismissal of their due process claims and are not
parties to this appeal.
2
The plaintiffs asserted a companion claim for the alleged
violation of their right to due process under the Illinois con-
stitution. The court ultimately disposed of that claim on the same
basis as the federal due process claim. R. 120; Minch v. City of
Chicago, 2005 WL 78945 (N.D. Ill. Jan. 12, 2005). However,
Minch and Graf do not challenge the dismissal of the state
claim, and consequently we make no further mention of that
claim here.
No. 05-2702 7
certified for interlocutory appeal the question of whether
a state or local ordinance compelling the retirement of
public safety personnel at a particular age which other-
wise meets the criteria of the statutory exemption set forth
in 29 U.S. § 623(j)(1) could be proven to constitute a
subterfuge to evade the purposes of the ADEA and thus be
actionable under section 623(j)(2), Drnek v. City of Chi-
cago, 205 F. Supp. 2d 894 (N.D. Ill. 2002) (“Drnek II”). We
concluded in Minch I that the answer to that question
was yes, but that the facts alleged in this case did not
support a viable subterfuge claim. 363 F.3d at 628-30.
When the City reinstated a mandatory retirement age for
its firefighters, we reasoned, it took action that was
expressly authorized by the ADEA. Even if, as the plain-
tiffs alleged, City officials adopted the MRO based on
outdated, inaccurate, and biased assumptions about the
abilities of older workers, their motives were not suf-
ficient to establish an actionable subterfuge, given the
express Congressional authority they had been given to
impose age limits on the employment of public safety
personnel. Id. at 628-29. Rather, to establish subterfuge,
the plaintiffs would have to show that the City enacted
and enforced the MRO as a means of evading a separate,
substantive provision of the ADEA. See id. at 630 (discuss-
ing hypothetical scenarios that might show subterfuge).
This was a showing that the plaintiffs, on the facts alleged
in this case, were unable to make. Id. Accordingly, we
remanded the case to the district court with directions
to dismiss Minch and Graf ’s ADEA claim and to conduct
further proceedings consistent with this court’s opinion. Id.
at 631.
With the ADEA claim out of the case, what remained
was the plaintiffs’ Fourteenth Amendment due process
claim. The due process claim is premised on the notion
that the terms of the CBA, to which the City had contrac-
8 No. 05-2702
tually and legislatively bound itself, precluded the City
from summarily forcing any firefighter to retire based
solely on his or her age and gave the firefighters a pro-
tected property interest in continued employment absent
good cause to discharge them. Section 16.2(B) of the CBA
reflected the City’s agreement “that employees shall be
disciplined and discharged only for just cause.” (Emphasis
ours.) In the plaintiffs’ view, involuntary retirement
amounts to a discharge, and as such was an action the City
could only take with just cause—age alone would not
suffice. The plaintiffs also construe two additional provi-
sions of the CBA to have precluded the City from adopting
the MRO: Section 13.1, which prohibited the City and the
firefighters’ union alike from discriminating against any
employee based on age, “[i]n accordance with applicable
law,” and Article XIX, which provided that once the CBA
was ratified and enacted into law, the City would enact
no further legislation nor adopt any rule “which would
impair the binding effect of or make unenforceable the
terms of this Agreement.”
While the case was pending on interlocutory appeal, it
had been reassigned to a new district judge (Hon. Samuel
Der-Yeghiayan). On review of this court’s decision in
Minch I, the court invited the City to re-file its motion to
dismiss the due process claim. Judge Der-Yeghiayan
believed that Judge Bucklo’s rationale for refusing to
dismiss that claim overlapped with her reasons for not
dismissing the ADEA claim; given this court’s decision
that the ADEA claim was not viable, Judge Der-Yeghiayan
believed that a fresh examination of the due process
claim was in order. R. 146 at 3; see also R. 133 at 4. The
City accepted the district court’s invitation and renewed
its motion to dismiss this claim.
After entertaining the parties’ memoranda, the district
court dismissed the due process claim. R. 120; Minch v.
No. 05-2702 9
City of Chicago, 2005 WL 78945 (N.D. Ill. Jan. 12, 2005).
The court rejected the plaintiffs’ contention that CBA
section 16.2(B)’s language requiring just cause for a
discharge precluded involuntary retirement. “[S]uch a
provision clearly was in regards to disciplinary action
taken against employees and it is not applicable in the
instant action because none of the Plaintiffs claim that
they were forced into mandatory retirement as a part of
a disciplinary measure for misconduct.” Id. at *2. The
court also understood section 9.1(C)(3) of the Agreement,
which referred to an employee who “retires or is retired,”
as permitting involuntary retirement without just cause.
Id. Finally, the court found that the MRO was not contrary
to the CBA’s anti-discrimination provision. Section 13.1
prohibited only unlawful age discrimination, the court
reasoned, and this court in Minch I had held that impos-
ing age limits on the employment of public safety per-
sonnel was not unlawful. Id. The district court subse-
quently denied the plaintiffs’ motion to reconsider. R. 133.
II.
The district court disposed of the due process claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). A
court may properly dismiss a claim pursuant to Rule
12(b)(6) only if the plaintiff could prove no set of facts
consistent with allegations of the complaint on which re-
lief could be granted. Conley v. Gibson, 355 U.S. 41, 45-46,
78 S. Ct. 99, 102 (1957); see also, e.g., Christensen v.
County of Boone, Ill., — F.3d —, 2007 WL 841097, at *2
(7th Cir. Mar. 21, 2007) (per curiam). Our review of the
district court’s decision to dismiss is, of course, de novo.
E.g., Chicago Dist. Council of Carpenters Welfare Fund
v. Caremark, Inc., 474 F.3d 463, 471 (7th Cir. 2007). As
always, we are obliged to accept the plaintiffs’ factual
10 No. 05-2702
allegations as true and construe those allegations in the
light most favorable to the plaintiffs. Id.3
At the outset, we may put aside any concern as to
whether the district court failed to pay adequate heed to
the law of the case doctrine. Among other things, the
law of the case doctrine embodies the notion that a court
ought not to re-visit an earlier ruling in a case absent a
compelling reason, such as manifest error or a change
in the law, that warrants re-examination. See, e.g.,
3
We note that although the CBA was not attached to, and
therefore not made part of, the plaintiffs’ complaint, the plain-
tiffs do not contest the district court’s authority (or our own) to
consider the CBA in evaluating the viability of their due process
claim. We have recognized that when a complaint refers to and
rests on a contract or other document that is not attached to
the complaint, a court might be within its rights to consider that
document in ruling on a Rule 12(b)(6) motion to dismiss the
complaint without converting the motion into one for summary
judgment, so long as the authenticity of the document is unques-
tioned. Tierney v. Vahle, 304 F.3d 734, 738-39 (7th Cir. 2002). As
it happens, the complaint in this case neither quoted from nor
referred to the collective bargaining agreement; no mention of
the CBA was made at all. Yet, there is no question that the
plaintiffs’ due process claim rests on the terms of the CBA.
Indeed, both sides have cited and relied upon the CBA through-
out this litigation. Moreover, as we have mentioned, the Chicago
City Council did formally adopt the CBA and enact it into law,
confirmation of which the City’s lawyers tendered to the district
court at Judge Bucklo’s request. R. 30, 31. As Judge Bucklo
recognized, courts may take judicial notice of local ordinances
without resorting to summary judgment procedures. Drnek I, 192
F. Supp. 2d at 847 (citing Menominee Indian Tribe of Wis. v.
Thompson, 161 F.3d 449, 456 (7th Cir. 1998), and Newcomb v.
Brennan, 558 F.2d 825, 829 (7th Cir. 1977)). In the absence of
any objection to consideration of the CBA, we too shall consider
the relevant terms of the agreement in evaluating whether
Minch and Graf have a viable due process claim.
No. 05-2702 11
Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 572
(7th Cir. 2006); Starcon Int’l, Inc. v. N.L.R.B., 450 F.3d
276, 278 (7th Cir. 2006); Best v. Shell Oil Co., 107 F.3d
544, 546 (7th Cir. 1997). This presumption against re-
opening matters already decided reflects interests in
consistency, finality, and the conservation of judicial
resources, among others. Analytical Eng’g, Inc. v. Baldwin
Filters, Inc., 425 F.3d 443, 454 (7th Cir. 2005). The pre-
sumption holds when a case is reassigned from one judge
to another. E.g., Brengettcy v. Horton, 423 F.3d 674, 680
(7th Cir. 2005). “In situations where a different member of
the same court re-examines a prior ruling, ‘the law of the
case doctrine . . . reflects the rightful expectation of
litigants that a change of judges midway through a case
will not mean going back to square one.’ ” Mendenhall v.
Mueller Streamline Co., 419 F.3d 686, 691 (7th Cir. 2005)
(quoting Best, 107 F.3d at 546). When Judge Bucklo denied
the City’s original motion to dismiss the complaint, she
concluded based on the language of the CBA that the
plaintiffs had a viable due process claim. Judge Der-
Yeghiayan subsequently invoked our decision in the
interlocutory appeal as the justification for re-examining
the due process claim. Yet, as the plaintiffs point out, our
opinion in Minch I addressed the ADEA claim alone
and had nothing to say on the subject of the due process
claim, which was beyond the scope of the interlocutory
appeal. It is true that a discrete portion of Judge Bucklo’s
decision not to dismiss the due process claim had rested
upon her assessment of the ADEA claim. Specifically, she
had observed that to the extent enforcement of the City’s
MRO was inconsistent with the ADEA, the CBA’s prohibi-
tion of age discrimination (section 13.1) would likewise
prohibit the City from enforcing the MRO. Drnek I, 192 F.
Supp. 2d at 848. To that extent, our holding in Minch I
undercut her rationale. But Judge Bucklo articulated
other reasons for sustaining the viability of the due
12 No. 05-2702
process claim that were entirely independent of the ADEA
claim. Id. at 847-48. Our decision in Minch I did not
implicate those additional grounds and thus did not
necessitate a wholesale re-examination of the due pro-
cess claim.
Nonetheless, Judge Der-Yeghiayan did re-assess the
due process claim and find it wanting, precipitating this
second appeal. The law of the case doctrine did not neces-
sarily preclude him from doing so to the extent he was
convinced the earlier ruling was obviously wrong. See, e.g.,
Brengettcy, 423 F.3d at 680; Mendenhall, 419 F.3d at 691.
However, that was not argued to Judge Der-Yeghiayan
and he did not articulate any such concern when he invited
the City to re-file its motion to dismiss. To that extent, he
acted inconsistently with the law of the case doctrine.
Nonetheless, our task at this juncture is to examine the
claim and determine for ourselves whether it is viable. The
plaintiffs’ reasonable expectations that the change in
judge would not lead to a change in the law of the case
may have been dashed, but the law of the case doctrine
does not constrain our review, Santamarina, 466 F.3d at
572, and it would not serve the ends of justice for us to
mechanistically re-instate the original ruling below
simply because the new judge failed to honor the law of
the case doctrine, see Native American Arts, Inc. v.
Waldron Corp., 399 F.3d 871, 873 (7th Cir. 2005);
McMasters v. United States, 260 F.3d 814, 818 (7th Cir.
2001); Best, 107 F.3d at 547. The appropriate course,
particularly given our de novo review, is to decide on the
merits whether the complaint states a due process claim
on which relief can be granted. See McMasters, 260 F.3d
at 818; Best, 107 F.3d at 546-47. Indeed, that is the
thrust of the plaintiffs’ opening brief, which criticizes
Judge Der-Yeghiayan’s decision to re-evaluate the due
process claim but does not invoke the law of the case
No. 05-2702 13
doctrine or invite us to reverse on that basis.4 On to the
merits.
An essential component of a procedural due process
claim is a protected property or liberty interest. See Town
of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756, 125
S. Ct. 2796, 2803 (2005); Board of Regents of State Colleges
v. Roth, 408 U.S. 564, 576-77, 92 S. Ct. 2701, 2708-09
(1972). The plaintiffs contend that the CBA’s identifica-
tion of just cause as the sole basis for discipline or dis-
charge gave them a property interest in continued employ-
ment of which the City deprived them when it compelled
them to retire at age 63. See id. at 578, 92 S. Ct. at 2709(terms of public worker’s employment contract can give
rise to protected property interest); Roman v. United
States Postal Serv., 821 F.2d 382, 386 (7th Cir. 1987)
(collective bargaining agreement with public employee can
give rise to protected property interest); Ratliff v. City of
Milwaukee, 795 F.2d 612, 624 (7th Cir. 1986) (same); cf.
Krieg v. Seybold, 481 F.3d 512, 520 (7th Cir. 2007) (with-
out clause providing that public employee could only be
discharged for just cause, at-will employee had no pro-
tected property interest in continued employment).
Whether indeed the plaintiffs had a protected interest in
working beyond the age of 63 is a question that, as both
sides agree, turns on the language of the CBA. See id.
at 519-20; see generally Chicago Painters & Decorators
Pension, Health & Welfare, & Deferred Sav. Plan Trust
Funds v. Karr Bro’s, Inc., 755 F.2d 1285, 1290-91 (7th Cir.
1985) (assessment of what the parties to collective bargain-
ing agreement meant begins with the language of the
agreement) (quoting U.A.W. v. Yard-Man, Inc., 716 F.2d
4We invited supplemental briefing on the law of the case doc-
trine after the subject was broached by the court at oral argu-
ment.
14 No. 05-2702
1476, 1479 (6th Cir. 1983)). We must read the agreement
as whole, I.B.E.W., Local 176 v. Balmoral Racing Club,
Inc., 293 F.3d 402, 406 (7th Cir. 2002), construing its
individual provisions not in isolation but with reference
to the rest of the CBA, Chicago Dist. Council of Carpenters
Pension Fund v. K & I Constr., Inc., 270 F.3d 1060, 1069
(7th Cir. 2001).
The essential question before us is whether the terms of
the CBA are properly understood to bar mandatory
retirement. The CBA certainly lacks any provision that
expressly authorizes the City to adopt a mandatory
retirement age. (By contrast, the agreement that the
City entered into with its police officers reserved to the
City the authority to impose a mandatory retirement age.)
But the omission of such a term is not dispositive. The
relevant inquiry is whether the provisions that the parties
did include in their agreement preclude the City from
imposing a mandatory retirement age on its firefighters.
If so, they may have had a protected property interest
in continued employment beyond the age of 63.
The CBA term on which the plaintiffs place most em-
phasis is section 16.2(B), which reflects the City’s agree-
ment to discipline and discharge an employee solely for
just cause. The City concedes that this provision precludes
it from taking disciplinary action against an employee, up
to and including firing the employee, without just cause
for that action. City’s Brief at 26-27. In the plaintiffs’
view, mandatory retirement is a form of discharge and as
such is not permitted under section 16.2(B) absent just
cause—which presumably an employee’s age alone would
not supply. (“Just cause” is not defined in the agreement,
but the parties appear to agree that an employee’s age
alone would not constitute just cause to discharge him.)
But is involuntary retirement a discharge for purposes
of section 16.2(B)? The answer is not obviously yes.
No. 05-2702 15
Compelled retirement, like a discharge, severs the employ-
ment relationship between employer and employee.
Nonetheless, there are intuitive distinctions between
being fired and being forced to retire. Retirement is
necessarily linked to the employee’s age and/or tenure
with the employer; and whether voluntary or not, retire-
ment often bestows certain benefits on the employee (e.g.,
a pension and/or continued receipt of insurance and other
employee benefits) that he would not enjoy if simply fired.
(There is the same intuitive distinction between quitting
and retiring voluntarily). Being fired and being forced to
retire indubitably have in common the fact that the
employer unilaterally terminates the employment relation-
ship. But only a broad understanding of the term “dis-
charge” that brings within its reach any and all forms of
involuntary termination would demand just cause even
for an unwilling retirement.
It is in this regard that section 9.1(C) of the Agreement
is relevant. For purposes of assessing an employee’s
seniority rights, section 9.1(C) identifies a variety of ways,
both voluntary and involuntary, in which a firefighter’s
employment relationship with the City may terminate.
Discharge for cause is among the identified forms of
severance, § 9.1(C)(2), but is by no means the exclusive
means of involuntary termination listed. For example, the
agreement recognizes that the employment relationship
terminates when an employee “retires or is retired.”
§ 9.1(C)(3). Judge Der-Yeghiayan thought that the “is
retired” language was an explicit reference to (and authori-
zation of) involuntary retirement. It plausibly could be so
understood, although this reads much into the use of the
passive voice and, in the absence of any other contractual
reference to mandatory retirement, may place more
weight on the phrase than its two words ought to bear. But
even if we place the “retires or is retired” language in the
category of voluntary terminations along with “[r]esigns or
16 No. 05-2702
quits,” see § 9.1(C)(1), there remain several other forms of
involuntary termination that section 9.1(C) recognizes
as distinct from a discharge for cause. These include: be-
ing absent from work for three consecutive days without
notifying the employer’s representative, being laid off
and then failing to report back to work within ten days of
being recalled, and failing to report back to work on the
conclusion of an authorized leave of absence. § 9.1(C)(4)-
(6). This makes clear that the term “discharge” in section
16.2(B) does not include all forms of involuntary termina-
tion, such that just cause invariably is required whenever
the City terminates a firefighter’s employment unilater-
ally. We note that a neutral arbitrator came to the same
conclusion in resolving a dispute between a terminated
firefighter and the City. R. 114 Ex. A (Chicago Firefighters’
Union, Local No. 2 v. City of Chicago, Griev. No. 990133,
Decision & Award at 22-23 (Mar. 7, 2000) (Peter R.
Meyers, Arb.)).
The plaintiffs retort that section 9.1(C) is a seniority
provision that in substance deals only with the question of
when the employment relationship terminates rather
than how (or, put another way, for what reason) it may
be terminated by the City. We have not overlooked the
context of the provision. But even having in mind that its
focus is the termination of employment for seniority
purposes, this section nonetheless is relevant for the
light it shines on the scope of the term “discharge.” In
recognizing multiple forms of involuntary termination
apart from a discharge, this provision puts to rest the
notion that any termination against the employee’s
wishes is necessarily a “discharge” for which the City
must have just cause. Given the distinctions between
retirement and discharge, we do not read section 16.2(B)
to condition involuntary retirement on a showing of just
cause.
The plaintiffs alternatively rely on the CBA’s Guarantee
of Terms as a bar to the City’s enactment of the MRO.
No. 05-2702 17
Article XIX provides that once the Chicago City Council
has ratified the CBA and enacted it into local law, the City
shall “enact no subsequent ordinances, executive orders
or rules and regulations having the force and effect of
law which would impair the binding effect of or make
unenforceable the terms of this Agreement.” We assume
for the sake of argument that Article XIX would preclude
the City from adopting a mandatory retirement age if, as
the plaintiffs have argued, Section 16.2(B) conditioned
all forms of involuntary termination, including in-
voluntary retirement, on the existence of just cause. So
understood, the CBA would give a firefighter the right to
continue working regardless of his age, so long as he could
perform the duties of his job and gave his employer no
cause to discharge him. And by forcing employees to retire
at age 63, the subsequent adoption of the MRO could be
thought to impair the binding effect of section 16.2(B)
and/or to render it unenforceable.
But because section 16.2(B) does not foreclose the City
from imposing a mandatory retirement age, Article XIX
poses no independent obstacle to the MRO. Assuredly, the
MRO imposed a new condition on the employment of
firefighters to which the firefighters’ union had not agreed.
Unilateral though it was, however, the enactment and
enforcement of the MRO neither impaired the binding
effect of the CBA nor rendered unenforceable its terms,
none of which precluded the adoption of a mandatory
retirement age.
Nor do we construe Section 13.1’s non-discrimination
provision to bar the MRO. This provision of the CBA
forbids age discrimination “[i]n accordance with applicable
law,” which we understand to define the scope of prohib-
ited discrimination as discrimination which is prohibited
by federal, state, or local anti-discrimination law. The
Chicago Human Rights Ordinance prohibits age discrimi-
nation in employment without an explicit exception, akin
18 No. 05-2702
to that in the ADEA, for age limits on public safety
personnel. Chicago, Ill. Municipal Code § 2-160-030. The
plaintiffs thus contend that enforcement of the MRO
amounts to a violation of the Human Rights Ordinance.
Yet the same legislative body that enacted the Human
Rights Ordinance also enacted the MRO, and in so do-
ing explicitly mandated the age-based retirement of
firefighters. The Chicago Commission on Human Rela-
tions, in response to discrimination complaints filed by
Minch and Graf, concluded that the MRO was reasonably
understood as an implicit exception to the Human Rights
Ordinance’s ban on age discrimination. In re Minch, et al.,
Case Nos. 01-E-21/44/48, 2001 WL 1042282 (Chi. Com.
Hum. Rel. Aug. 24, 2001). Consequently, the ordinance,
as construed by the Commission, does not forbid enforce-
ment of the MRO. The plaintiffs have given us no reason
to overlook or reject the Commission’s construction of
local anti-discrimination law.
III.
The collective bargaining agreement between the City
and its firefighters did not preclude the City from subse-
quently adopting a mandatory retirement age. Because the
CBA did not give the plaintiffs a protected property
interest in continued employment regardless of their age,
the plaintiffs cannot show that they were deprived of
procedural due process when the City adopted the MRO
and enforced it by compelling their retirement at age 63.
Accordingly, the district court properly dismissed the due
process claim. We need not reach any of the other argu-
ments the parties have raised.
AFFIRMED
No. 05-2702 19
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-14-07