The opinion of the court was delivered by: KEVIN THOMAS DUFFY
KEVIN THOMAS DUFFY, D.J.:
Plaintiff Robert Petrelli commenced this action for damages and injunctive relief, pursuant to the Age Discrimination in Employment Act of 1967 (the "ADEA"), 29 U.S.C. §§ 621-634, against defendant the City of Mount Vernon ("Mount Vernon").
Both parties now move for summary judgment pursuant to Fed. R. Civ. P. 56.
Petrelli then wrote to the United States Equal Employment Opportunity Commission (the "EEOC"), which, by letter dated March 16, 1987, informed Petrelli that he could file a charge alleging age discrimination if he suspected that he had been a victim of discrimination. The letter explained that, pursuant to recent amendments to the ADEA, in certain cases, "a state or local police department can require that all applicants be younger than a certain age . . . . However, the age limitation must have been in effect under state or local law on March 3, 1983."5 Exh. L (emphasis added).
Petrelli then endeavored to determine if Mount Vernon's age limitation was in effect on March 3, 1983. On April 23, 1987, he wrote to the New York State Department of Civil Service (the "Department") asking whether the age limits on the hiring of police officers in New York State under Civil Service Law § 58
were in effect on March 3, 1983. The Department informed Petrelli that "for a period of time enforcement of Section 58 of the Civil Service Law which establishes the age requirements was suspended. However, the statute remained in effect." Exh. N. After further inquiries from Petrelli, see Exhs. O and P, the Department explained that the maximum age requirement had been challenged in a series of court cases beginning in 1981 and that "in the years of litigation[,] Section 58 requirements continued to be in effect. Because of pending appeals and court orders[,] candidates over age 29 were allowed to participate in examinations and in fact receive appointments." Exh. Q.
On September 14, 1988, pursuant to a Freedom of Information Act request, Mount Vernon informed Petrelli by letter that it "lifted its maximum age requirement in or about September, 1981," and reinstated it on January 1, 1987. The letter went on to state that "at the time you took the police officers exam in or about 1985, the City of Mount Vernon was not enforcing the maximum age requirement, however, by the time your eligibility for appointment was being considered in 1987, State Law required that the maximum age requirements be reinstated." Exh. V.
Petrelli filed a charge of age discrimination with the EEOC on December 29, 1988. Exh. W. On March 17, 1989, the EEOC wrote to Mount Vernon and advised it of the following:
It is Mr. Petrelli's allegations [sic] that the Mount Vernon Department of Civil Service committed an unlawful employment practice because of his age (41) by refusing to appoint him to the position of Police Officer after he had successfully met all requirements for the position and that this constitutes a violation of the [ADEA].
Through the passage of the new amendments to the ADEA, Congress created certain protection for younger individuals. Specifically, with regard to the hiring of law enforcement officers, it is not unlawful for a state or local governmental employer to impose a maximum hiring age. However, in order to do so the age limitation imposed must have been in effect under state or local law on March 3, 1983. If the maximum age requirement for the hiring of police officers had been in effect on or after March 3, 1983 and then had been eliminated[ ] and subsequently reimposed, it would not be a violation of the ADEA. However, since the maximum age requirement has been previously eliminated by the Mount Vernon Civil Service Commission in September 1981, it is a violation of the ADEA to reimpose it now.
Subsequently, The EEOC District Director issued its determination. The District Director stated: "I have determined that [the City of Mount Vernon Civil Service Commission's] maximum age requirement is a violation of the ADEA, in that it discriminates against persons forty years of age and over." Exh. Z. After efforts to conciliate Petrelli's charge were unsuccessful,
the EEOC notified Mount Vernon ...