National Litigation Hotline

Affirming the district court's decision, the Second Circuit held that because the New York Civil Service Law provision, section 58(1)(a), prohibiting the acceptance of police officer applicants who are over the age of 35 when sitting for the civil service examination, fits within the ADEA's “law enforcement exception”, it does not discriminate on the basis of age in violation of federal statute. A Congressional amendment to the ADEA made in 1996, substantially similar to a prior amendment made in 1986, permits states and their political subdivisions to discriminate on the basis of age when hiring and firing firefighters or law enforcement officers. This exception, contained in ADEA section 4(j) and referred to as the “law enforcement exception”, requires that any imposition of age limitations be made pursuant to a “bona fide hiring … plan” and not be a “subterfuge to evade the purposes” of the ADEA. While Feldman conceded that the age limit contained in the statute is a “bona fide hiring plan” under 4(j), he claimed that the provision was a “subterfuge” in that it “discriminates based on age and not ability” and because, in framing the provision, the New York State legislature took an “economic rationale” into account.

Rejecting Feldman's claim, the Second Circuit began by adopting the reasoning of the Seventh Circuit in Minch v. City of Chicago, 363 F.3d 615 (7th Cir. 2004), wherein the court concluded that in order to show that a practice qualified as a “subterfuge to evade the purposes” of the ADEA, the plaintiff must prove “'that the employer is using the exemption as a way to evade another substantive provision of the act.'” The Second Circuit thus found that because “[t]he section 4(j) exception, which allows for the setting of age limits, expressly contemplates discrimination on the basis of age,” ” … despite plaintiff's contention to the contrary, showing that section 58(1)(a) discriminates on the basis of age rather than ability cannot be enough to make the section 4(j) exception inapplicable.” Further, the court found that even if the New York State legislature took fiscal concerns into account when devising section 58(1)(a), this practice does not constitute an evasion of another substantive provision of the ADEA. The Second Circuit determined that were it to hold otherwise, it would “ subvert the section 4(j) exception” in that “it is difficult to imagine a circumstance in which a legislature would not at least consider the fiscal implications of such a policy — indeed, it is difficult to imagine any legislation on social or labor concerns that is wholly divorced from budgetary or fiscal considerations.”

Fourth Circuit: Elimination of Bodily Waste Constitutes a 'Major Life Activity' under the ADA

The Fourth Circuit has found that the elimination of bodily waste is a “major life activity” within the meaning of the Americans with Disabilities Act (ADA). Heiko v. Colombo Savings Bank, F.S.B., 2006 WL 44330 (4th Cir. Jan. 10).

James Heiko, a former employee of Colombo Savings Bank, a small commercial institution in Maryland, brought suit against Colombo for failure to promote and constructive discharge. Heiko, who had polycystic kidney disease upon joining Colombo in 1998, was diagnosed with end-stage renal disease requiring dialysis in 1999, several months after his promotion to Assistant Vice President. When Heiko's immediate supervisor indicated that she was leaving Colombo, Heiko expressed an interest in the position and desire for promotion to the bank's president and CEO. After being passed over for the job in favor of a less experienced employee, Heiko was told that his “situation,” referring to his dialysis regimen and potential future kidney transplant, would have kept him from fulfilling the responsibilities of this job. Heiko ultimately resigned and filed suit against Colombo in state court alleging discrimination on the basis of his kidney failure in violation of the Montgomery County Code, a statute interpreted consistently with the federal ADA. The action was removed to federal court by Colombo, and the United States District Court for the District of Maryland granted summary judgment for defendant, holding that Heiko was not disabled in that the elimination of waste did not constitute a “major life activity.”

Reversing the district court's decision, the Fourth Circuit held that because “'[t]he term 'major life activities' refers to 'those activities that are of central importance to daily life,'” the elimination of bodily waste qualifies as a major life activity under the ADA. Not only is “[t]he elimination of bodily waste … basic to any person's daily regimen” and ” … a daily activity that the average person can accomplish with little effort,” but “ [t]he elimination of bodily waste is … of life-sustaining importance.” In so finding, the Fourth Circuit stressed that every circuit court that had been given the opportunity to address this issue had deemed the elimination of bodily waste a major life activity. The court dismissed the district court's argument that “waste elimination [is] not a major life activity because it [is] merely a characteristic of Heiko's kidney failure” by stating that the relevant impairment itself was Heiko's kidney failure (emphasis added). Supporting its reasoning, the Fourth Circuit found that were it to recognize the district court's finding, “the ADA would not cover major life activities that are closely linked with serious disabilities.” Thus, “an inability to see could of course be recast as a characteristic of blindness, and an inability to hear could likewise be reframed as a feature of deafness.” Thus, the court held that “[w]aste elimination … cannot be a mere 'characteristic' of end-stage renal disease for the purposes of the ADA.”

Title VII's Participation Clause Does Not Protect Employee

The Third Circuit has held that the filing of a facially invalid complaint does not constitute “participation” under Title VII, and thus does not entitle a complainant to the broad protections afforded by that federal statute. Slagle v. County of Clarion, 2006 WL 60666 (3rd Cir. Jan. 12).

Timothy Slagle, a former correctional officer at the Clarion County Jail, filed suit against Clarion County in the United States District Court for the Western District of Pennsylvania, alleging that his termination in January of 2002 was the result of unlawful retaliation in violation of Title VII. Slagle was suspended for insubordinate behavior on two separate occasions in 2001, causing him to file a complaint against Clarion County with the Equal Employment Opportunity Commission (EEOC) on Sept. 10, 2001. Slagle's complaint, alleging that he was discriminated against “'because of whistleblowing, in violation of [his] Civil Rights, and invasion of privacy,'” was dismissed for failure to state a claim under the statutes enforced by the EEOC. Slagle was then discharged on Jan. 2, 2002 for gross insubordination, which prompted him to file a second charge with the EEOC on Jan. 15, 2002, asserting that his employment was terminated in retaliation for filing the first EEOC charge. Clarion County ultimately determined that Slagle would not be terminated, but he never returned to work, instead filing a third charge with the EEOC, alleging that Clarion County had discriminated against him on the basis of his gender in violation of Title VII. This charge was also dismissed based on the lack of any statutory violations. In response to Slagle's court complaint, the United States District Court for the Western District of Pennsylvania granted summary judgment for Clarion County, holding that Slagle had “'failed to establish that he engaged in protected activity, which is an essential element of a prima facie case of retaliation under Title VII.'”

Affirming the district court's holding, the Third Circuit agreed that “'a general complaint of unfair treatment does not translate into a charge of illegal discrimination, and is not protected conduct under Title VII.'” In so finding, the Third Circuit stated that while Title VII is a remedial statute that should be interpreted broadly, the plaintiff must still file a complaint that alleges one or more prohibited grounds “under this subchapter,” 42 U.S.C. '' 2000e through 2000e-17, in order to be afforded protection under Title VII. These statutory provisions outline employees' rights when they are subjected to employment discrimination on the basis of their race, color, sex, religion, or national origin. Thus, the court found that “Slagle's argument that an employee is protected when s/he files any charge, regardless of its content, is to render the phrase 'under this subchapter' meaningless.” The Fourth Circuit clarified its position, however, by indicating that while a facially invalid complaint does not constitute “participation” for purposes of Title VII, “[p]rotection is not lost merely because an employee is mistaken on the merits of his or her claim.” A plaintiff need only file a facially valid complaint to meet the “low bar” needed to trigger the broad protections of Title VII.

New York Statute Prescribing Age Limits for Police Officer Applicants Not Discriminatory Under the ADEA

The Second Circuit has found that section 58(1) (a) of the New York Civil Service Law, prohibiting applicants over 35 years of age from becoming police officers, does not violate the Age Discrimination in Employment Act of 1967 (ADEA) in that it falls under the ADEA's “law enforcement exception.” Feldman v. Nassau County, 2006 WL 40815 (2nd Cir. Jan. 9).

Plaintiff Alan Feldman, born in 1953, submitted the civil service examination application required to become a New York police officer at some point prior to Nov. 15, 2002. After his application was dismissed, due to his age, on Nov. 15, 2002, Feldman appealed the decision to the Civil Service Commission and was denied. He then filed two complaints with the Equal Employment Opportunity Commission (EEOC) alleging that this denial of his application was based on age discrimination. He thereafter received right-to-sue letters. Feldman's complaint, initially filed with the New York State Supreme Court, was removed by Defendants to the United States District Court for the Eastern District of New York. This lower court ultimately dismissed his claim that the age limit imposed on the hiring of police officers by the New York Civil Service law does not qualify for the “law enforcement exception” under the ADEA. Feldman appealed.

Affirming the district court's decision, the Second Circuit held that because the New York Civil Service Law provision, section 58(1)(a), prohibiting the acceptance of police officer applicants who are over the age of 35 when sitting for the civil service examination, fits within the ADEA's “law enforcement exception”, it does not discriminate on the basis of age in violation of federal statute. A Congressional amendment to the ADEA made in 1996, substantially similar to a prior amendment made in 1986, permits states and their political subdivisions to discriminate on the basis of age when hiring and firing firefighters or law enforcement officers. This exception, contained in ADEA section 4(j) and referred to as the “law enforcement exception”, requires that any imposition of age limitations be made pursuant to a “bona fide hiring … plan” and not be a “subterfuge to evade the purposes” of the ADEA. While Feldman conceded that the age limit contained in the statute is a “bona fide hiring plan” under 4(j), he claimed that the provision was a “subterfuge” in that it “discriminates based on age and not ability” and because, in framing the provision, the New York State legislature took an “economic rationale” into account.

Rejecting Feldman's claim, the Second Circuit began by adopting the reasoning of the Seventh Circuit in Minch v. City of Chicago , 363 F.3d 615 (7th Cir. 2004), wherein the court concluded that in order to show that a practice qualified as a “subterfuge to evade the purposes” of the ADEA, the plaintiff must prove “'that the employer is using the exemption as a way to evade another substantive provision of the act.'” The Second Circuit thus found that because “[t]he section 4(j) exception, which allows for the setting of age limits, expressly contemplates discrimination on the basis of age,” ” … despite plaintiff's contention to the contrary, showing that section 58(1)(a) discriminates on the basis of age rather than ability cannot be enough to make the section 4(j) exception inapplicable.” Further, the court found that even if the New York State legislature took fiscal concerns into account when devising section 58(1)(a), this practice does not constitute an evasion of another substantive provision of the ADEA. The Second Circuit determined that were it to hold otherwise, it would “ subvert the section 4(j) exception” in that “it is difficult to imagine a circumstance in which a legislature would not at least consider the fiscal implications of such a policy — indeed, it is difficult to imagine any legislation on social or labor concerns that is wholly divorced from budgetary or fiscal considerations.”

Fourth Circuit: Elimination of Bodily Waste Constitutes a 'Major Life Activity' under the ADA

The Fourth Circuit has found that the elimination of bodily waste is a “major life activity” within the meaning of the Americans with Disabilities Act (ADA). Heiko v. Colombo Savings Bank, F.S.B., 2006 WL 44330 (4th Cir. Jan. 10).

James Heiko, a former employee of Colombo Savings Bank, a small commercial institution in Maryland, brought suit against Colombo for failure to promote and constructive discharge. Heiko, who had polycystic kidney disease upon joining Colombo in 1998, was diagnosed with end-stage renal disease requiring dialysis in 1999, several months after his promotion to Assistant Vice President. When Heiko's immediate supervisor indicated that she was leaving Colombo, Heiko expressed an interest in the position and desire for promotion to the bank's president and CEO. After being passed over for the job in favor of a less experienced employee, Heiko was told that his “situation,” referring to his dialysis regimen and potential future kidney transplant, would have kept him from fulfilling the responsibilities of this job. Heiko ultimately resigned and filed suit against Colombo in state court alleging discrimination on the basis of his kidney failure in violation of the Montgomery County Code, a statute interpreted consistently with the federal ADA. The action was removed to federal court by Colombo, and the United States District Court for the District of Maryland granted summary judgment for defendant, holding that Heiko was not disabled in that the elimination of waste did not constitute a “major life activity.”

Reversing the district court's decision, the Fourth Circuit held that because “'[t]he term 'major life activities' refers to 'those activities that are of central importance to daily life,'” the elimination of bodily waste qualifies as a major life activity under the ADA. Not only is “[t]he elimination of bodily waste … basic to any person's daily regimen” and ” … a daily activity that the average person can accomplish with little effort,” but “ [t]he elimination of bodily waste is … of life-sustaining importance.” In so finding, the Fourth Circuit stressed that every circuit court that had been given the opportunity to address this issue had deemed the elimination of bodily waste a major life activity. The court dismissed the district court's argument that “waste elimination [is] not a major life activity because it [is] merely a characteristic of Heiko's kidney failure” by stating that the relevant impairment itself was Heiko's kidney failure (emphasis added). Supporting its reasoning, the Fourth Circuit found that were it to recognize the district court's finding, “the ADA would not cover major life activities that are closely linked with serious disabilities.” Thus, “an inability to see could of course be recast as a characteristic of blindness, and an inability to hear could likewise be reframed as a feature of deafness.” Thus, the court held that “[w]aste elimination … cannot be a mere 'characteristic' of end-stage renal disease for the purposes of the ADA.”

Title VII's Participation Clause Does Not Protect Employee

The Third Circuit has held that the filing of a facially invalid complaint does not constitute “participation” under Title VII, and thus does not entitle a complainant to the broad protections afforded by that federal statute. Slagle v. County of Clarion, 2006 WL 60666 (3rd Cir. Jan. 12).

Timothy Slagle, a former correctional officer at the Clarion County Jail, filed suit against Clarion County in the United States District Court for the Western District of Pennsylvania, alleging that his termination in January of 2002 was the result of unlawful retaliation in violation of Title VII. Slagle was suspended for insubordinate behavior on two separate occasions in 2001, causing him to file a complaint against Clarion County with the Equal Employment Opportunity Commission (EEOC) on Sept. 10, 2001. Slagle's complaint, alleging that he was discriminated against “'because of whistleblowing, in violation of [his] Civil Rights, and invasion of privacy,'” was dismissed for failure to state a claim under the statutes enforced by the EEOC. Slagle was then discharged on Jan. 2, 2002 for gross insubordination, which prompted him to file a second charge with the EEOC on Jan. 15, 2002, asserting that his employment was terminated in retaliation for filing the first EEOC charge. Clarion County ultimately determined that Slagle would not be terminated, but he never returned to work, instead filing a third charge with the EEOC, alleging that Clarion County had discriminated against him on the basis of his gender in violation of Title VII. This charge was also dismissed based on the lack of any statutory violations. In response to Slagle's court complaint, the United States District Court for the Western District of Pennsylvania granted summary judgment for Clarion County, holding that Slagle had “'failed to establish that he engaged in protected activity, which is an essential element of a prima facie case of retaliation under Title VII.'”

Affirming the district court's holding, the Third Circuit agreed that “'a general complaint of unfair treatment does not translate into a charge of illegal discrimination, and is not protected conduct under Title VII.'” In so finding, the Third Circuit stated that while Title VII is a remedial statute that should be interpreted broadly, the plaintiff must still file a complaint that alleges one or more prohibited grounds “under this subchapter,” 42 U.S.C. '' 2000e through 2000e-17, in order to be afforded protection under Title VII. These statutory provisions outline employees' rights when they are subjected to employment discrimination on the basis of their race, color, sex, religion, or national origin. Thus, the court found that “Slagle's argument that an employee is protected when s/he files any charge, regardless of its content, is to render the phrase 'under this subchapter' meaningless.” The Fourth Circuit clarified its position, however, by indicating that while a facially invalid complaint does not constitute “participation” for purposes of Title VII, “[p]rotection is not lost merely because an employee is mistaken on the merits of his or her claim.” A plaintiff need only file a facially valid complaint to meet the “low bar” needed to trigger the broad protections of Title VII.