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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 27, 2011∗
Decided July 5, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 10-2617 Appeal from the United
States District Court for the
WAYNE DAVIS, Southern District of Indiana,
Plaintiff-Appellant, Indianapolis Division.
v. No. 1:07-cv-0087-LJM-TAB
Larry J. McKinney, Judge.
PAUL WHITESELL, in his official capacity as
Superintendent of the Indiana State Police,
Defendant-Appellee.
Order
We concluded in an earlier opinion, 541 F.3d 760 (2008), that 29 U.S.C. §623(j)(2)
permits the Indiana State Police to limit reemployment of former officers to those who
are under the age of 40 when they seek to be rehired. This statutory exception to the
Age Discrimination in Employment Act applies when a hiring decision is made
“pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade” the
statute. We held that the State Police’s plan is bona fide and not a subterfuge. But we
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 10-2617 Page 2
remanded so that the district court could consider whether the decision had been made
“pursuant to” the plan, observing that, if the State Police exercised discretion not to
enforce the age limit for other persons, the decision with respect to Davis might have
been made “pursuant to” administrative discretion rather than the rule stated in the
plan.
On remand, the parties engaged in discovery. Davis did not find any other
person who had been rehired (or otherwise reemployed) after turning 40. One would
think that this answers the only question posed on remand. Davis contends otherwise.
Discovery turned up the fact that one person had been initially hired a few days after he
turned 35, when that age was the State Police’s maximum. He says that this
demonstrates that the decision not to rehire him was not “pursuant to” the plan.
The State Police contends that this solitary failure to enforce the age limit was the
result of a clerical error rather than uncabined discretion to disregard the written
requirements. Davis does not take issue with this characterization, which means that
there is no material dispute requiring a trial. More than that: The reason why this case
was remanded is the language of 240 Ind. Admin. Code §1-4-18(b)(4), which says that
an applicant for reemployment must meet all the requirements for initial employment
“subject to the approval of the superintendent and the board.” It was this quoted
language that caused us to wonder whether the superintendent and board are claiming
discretion to disregard the age limit when it suits them. That one applicant for initial
employment was hired after turning 35 does not show anything about the way Indiana
interprets or applies the language of §1-4-18(b)(4), which deals with reemployment of
officers who quit (as Davis did) and later want to return to duty.
Although this resolves the single issue that the case was remanded to address,
Davis contends that he learned during discovery that he was actually rehired despite his
age (42 when he asked to have his former job back) and then fired when the
Superintendent of Police refused to carry out the decision of the ISP’s Board. In addition
to being outside the scope of the remand, this sounds like an argument under state law.
At all events, the Superintendent contends, and the district court concluded, that the
Board decided to rehire Davis if the Superintendent agreed—which is what §1-4-
18(b)(4) says. It requires the approval of “the superintendent and the board” (emphasis
added). The Department’s normal procedures include a new criminal-background
check and similar routine inquiries, which had not been completed before the Board
acted, plus evaluation of other requirements such as age. We agree with the district
court’s conclusion on this subject.
AFFIRMED