however, that: (1) its refusal to hire Petrelli was not illegal age discrimination because its actions were in conformity with the requirements of the ADEA, and (2) Petrelli's failure to timely file a charge of discrimination with the EEOC bars him from bringing this action. I will consider each of these arguments in turn.
New York Civil Service Law section 58, enacted in 1965, bars applicants who have reached their twenty-ninth birthday from commencing employment with any police force in the state. See supra note 6. The ADEA, enacted in 1967, makes it unlawful for an employer to refuse to hire any individual because of that individual's age. See 29 U.S.C. § 623(a); see also 29 U.S.C. § 631 (setting out age requirements of persons protected under ADEA).
In Hahn v. City of Buffalo, 770 F.2d 12 (2d Cir. 1985), the Second Circuit held that the ADEA barred New York from applying section 58(1) to individuals between the ages of 40 and 70.
The Hahn court confined its ruling to those individuals covered by the ADEA, and did not reach the issue of whether New York could still apply section 58(1) to those not protected under ADEA, i.e., individuals between the ages of 29 and 39. Id.; see also Doyle v. Suffolk County, 786 F.2d 523 (2d Cir.) (discussing Hahn, and holding that section 58(1), when applied to individuals between the ages of 29-39, does not violate equal protection clause), cert. denied, 479 U.S. 825, 93 L. Ed. 2d 49, 107 S. Ct. 98 (1986).
Effective January 1, 1987, Congress amended the ADEA to allow age discrimination in the hiring of police officers. 29 U.S.C. § 623(j) permits a state or local governmental employer to refuse to hire an individual on account of age if such action is taken "with respect to the employment of an individual as . . . a law enforcement officer and the individual has attained the age of hiring . . . in effect under applicable State or local law on March 3, 1983 . . . ." Thus, only employers who had such a maximum age requirement "in effect" on March 3, 1983 may now impose that requirement. The central issue in this action is whether there was a maximum age requirement in effect in Mount Vernon on that date.
The record clearly indicates that Mount Vernon had no maximum age requirement on March 3, 1983. The very announcement which prompted Petrelli to apply for his position stated that "there is no maximum age limitation required by the City of Mount Vernon." Exh. D (emphasis added). Further, Mount Vernon admitted to Petrelli that it "lifted its maximum age requirement in or about September 1981" and reinstated it on January 1, 1987. Exh. V (emphasis added). Thus, I need look no further than Mount Vernon's very own actions and representations to Petrelli to find that no maximum age requirement was in effect in Mount Vernon on March 3, 1983.
Mount Vernon also argues that Petrelli is barred from bringing this action under the ADEA because his December 29, 1988 filing with the EEOC was not timely.
Mount Vernon argues that the limitations period started to run on February 3, 1987, when Petrelli was informed by letter that he was being removed from the eligible hiring list because of his age. Because Petrelli's EEOC complaint was not filed until approximately 695 days after receipt of that letter, Mount Vernon argues, Petrelli is barred from bringing this action. The argument is without merit. First, Petrelli did not become aware that he had a prima facie case of age discrimination until October 3, 1988 when he first learned that he had been passed over and that his position went to a younger candidate. See Economu v. Borg-Warner Corp., 829 F.2d 311, 315-16 (2d Cir. 1987) (indicating that limitations period begins to run when party "received notice sufficiently definite to permit him to make out a prima facie case of age discrimination").
Second, both Petrelli's EEOC filing and his complaint here sufficiently allege a continuing violation of the ADEA.
See Miller v. Int'l Tel. and Tel. Corp, 755 F.2d 20, 25 (2d Cir.), cert. denied, 474 U.S. 851, 106 S. Ct. 148, 88 L. Ed. 2d. 122 (1985) (when person refused employment pursuant to continuous practice and policy of discrimination, limitations period may be delayed until last discriminatory act in furtherance of practice; violation must be clearly asserted in EEOC filing and in complaint). Indeed, Mount Vernon does not dispute that, pursuant to its reading of relevant law, its present policy and practice is now to deny employment to applicants over 29 years of age.
Further, because it may well be that the timely filing of a complaint with the EEOC is not a jurisdictional requirement, the limitations statute is subject to equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982). The record indicates that Petrelli diligently investigated his claim and actively pursued his rights throughout the relevant time period in an effort to resolve his dispute with Mount Vernon. Petrelli's persistent efforts to convince Mount Vernon that it was misapplying the relevant law certainly put Mount Vernon on notice that litigation was a possibility. Hence, Mount Vernon suffers no prejudice in defending this action. See Snell v. Suffolk County, 782 F.2d 1094, 1101 (2d Cir. 1986) (purpose of filing requirement is to convey prompt notice to defendant, thereby encouraging conciliation). Petrelli should not be penalized for these efforts.
For the foregoing reasons, Petrelli's motion for summary judgment is granted. Petrelli is to submit order, judgment and decree on five (5) days' notice within ten (10) days of the date of this order.
DATED: New York, New York
June 24, 1992
KEVIN THOMAS DUFFY, U.S.D.J.