Davis, Wayne v. Whitesell, Paul

In the

United States Court of Appeals
For the Seventh Circuit
____________

No. 07-2543

W AYNE D AVIS,
Plaintiff-Appellant,
v.

INDIANA S TATE P OLICE,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:07-087-LJM-WTL—Larry J. McKinney, Judge.
____________

A RGUED A UGUST 6, 2008—D ECIDED S EPTEMBER 3, 2008
____________

Before E ASTERBROOK, Chief Judge, and K ANNE and
W OOD , Circuit Judges.
E ASTERBROOK, Chief Judge. Wayne Davis, a State
Trooper in Indiana, resigned when 42 years old to take
another job. Two months later he decided that he had
made a mistake and asked for his old job back. The State
Police said no, telling Davis that he was too old—for ex-
troopers seeking reinstatement must “meet all the re-
quirements for police employees as specified in . . . 240 IAC
2 No. 07-2543

1-4-3”. 240 Ind. Admin. Code §1-4-18(b)(4). Among the
requirements in §1-4-3 is that the applicant be at least
21, and under 40, when hired. Davis contends in this suit
that, by holding his age against him, Indiana violated the
Age Discrimination in Employment Act, 29 U.S.C.
§§ 621–33a.
EEOC v. Wyoming, 460 U.S. 226 (1983), concludes that
the ADEA applies to state law-enforcement officers.
Political controversy ensued. In 1986 Congress enacted a
temporary (and retroactive) exemption for law-enforce-
ment officers. This provision had a sunset clause, and
when the legislature was unable to agree on permanent
text the temporary provision expired in 1993. But in
1996 Congress again adopted an exemption, this time
without a sunset. Any hiring or retirement decision by a
law-enforcement agency “pursuant to a bona fide hiring
or retirement plan that is not a subterfuge to evade the
purposes of this chapter” is exempt from the ADEA. 29
U.S.C. §623(j)(2). Our opinions in Kopec v. Elmhurst, 193
F.3d 894 (7th Cir. 1999); Minch v. Chicago, 363 F.3d 615 (7th
Cir. 2004); and Minch v. Chicago, 486 F.3d 294 (7th Cir.
2007), recount this history and sum up the legal conse-
quence: A hiring plan that was in place before EEOC v.
Wyoming is likely to be valid today—after all, the point
of §623(j)(2) is to permit age discrimination that other-
wise would violate the ADEA, and probably is not de-
signed to evade portions of the ADEA other than the age
rules. (This is how we understood “subterfuge” in Minch,
see 363 F.3d at 623. The ADEA contains anti-retaliation
clauses and other requirements in addition to the
sections that forbid discrimination against older em-
No. 07-2543 3

ployees or applicants.) The district court therefore dis-
missed Davis’s complaint under Fed. R. Civ. P. 12(b)(6).
Davis does not contend that Indiana’s rules, which
predate EEOC v. Wyoming, are “subterfuges” to evade
the Act. Instead he contends that the decision not to rehire
him is not one “pursuant to a bona fide hiring . . . plan”.
His principal argument is that Indiana’s system is not
“bona fide” because it is senseless; a fallback argument is
that the decision not to rehire him, in particular, was not
made “pursuant to” the state’s age limits.
Indiana allows state troopers to work until age 65.
Davis asks why a 2-month break in employment at age 42
should make him a pariah, when he would have been
acceptable at age 43, 45, 50, 55, and 60 had he just stayed
put. It is a good question, but not one for the federal
judiciary. All §623(j)(2) requires is that the plan be “bona
fide” and not a “subterfuge” to evade the ADEA. Whether
a state’s plan is wise is not material to the application of
§623(j)(2). A plan is “bona fide” when it is real rather
than a fable spun for the occasion. Kopec, 193 F.3d at 901.
In arguing that, to be bona fide, a plan must be sensible,
Davis is asking the court to assume a managerial role
that is alien to the idea of an anti-discrimination norm. As
we say frequently in suits under employment-discrimina-
tion statutes: “No matter how medieval a firm’s practices,
no matter how high-handed its decisional process, no
matter how mistaken the firm’s managers, [federal law
does] not interfere.” Pollard v. Rea Magnet Wire Co., 824
F.2d 557, 560 (7th Cir. 1987).
4 No. 07-2543

Davis equates “bona fide” with “rationally related to a
legitimate objective” and in the process conflates statutory
with constitutional criteria. Asked at oral argument
whether he was challenging Indiana’s rules under the
equal protection clause of the fourteenth amendment,
Davis’s lawyer gave a negative answer.
A plan is “bona fide” when it sets out the real rules
of decision, but Davis does not want Indiana to stand
on rules. Instead he contests the very idea of rules. A fit
person at age 41 is better suited to be a trooper than a
flabby person at age 39. But problems of this kind are
endemic to rules. As Justice Holmes put it, “[w]herever
the law draws a line there will be cases very near each
other on opposite sides.” United States v. Wurzbach, 280
U.S. 396, 399 (1930). To observe that functionally indistin-
guishable situations are on opposite sides of a legal line
is not to invalidate the line and demand that the state
use a standard instead, for standards have problems of
their own. Standards (for example, fitness rather than
age) depend on the exercise of discretion. Who should
wield that discretion, and why should they be trusted?
Who guards the guardians?
A two-month break is short, and a state could choose
to overlook it, but a federal doctrine converting a straight-
forward age line to a standard of reasonableness can’t
be limited to two-month breaks in employment. What of
a six-month break? One year? Two years? How about a
person who reaches age 65 but says that he is as fit and
alert as the average 60-year-old trooper; may Indiana
nonetheless end his employment? There is no one “right”
No. 07-2543 5

response to such questions, certainly none to be located
in §623(j)(2). Congress could displace the state’s choices (as
the ADEA does for most jobs), but §623(j)(2) does not
compel a state law-enforcement agency to make rea-
sonable (or any) exceptions to an age-based plan. Nor does
equal-protection analysis require exceptions for special
circumstances; governments may base rules on the usual
situations without exceptions for the unusual ones. See,
e.g., Vance v. Bradley, 440 U.S. 93 (1979) (Constitution
permits mandatory retirement at age 60 of all diplomats);
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307
(1976) (Constitution permits mandatory retirement at
age 50 of all state police).
Davis’s request for an exception is in tension with his
second (and better) argument: That the statute forbids
exceptions, or at least limits exceptions to those that are
explicit parts of the plan. Section 623(j)(2) requires the
state to act “pursuant to a bona fide hiring . . . plan” (em-
phasis added). It is not enough to have a plan.
Section 1-4-18, which spells out the procedure if a former
trooper applies for reinstatement, has some curious
language:
The applicant shall meet all the requirements for
police employees as specified in 240 IAC 1-4-2 and
240 IAC 1-4-3 subject to the approval of the super-
intendent and the board.
240 Ind. Admin. Code §1-4-18(b)(4). What does “subject
to the approval of the superintendent and the board”
mean? It could mean that the superintendent and board
must decide whether the applicant satisfies the two listed
6 No. 07-2543

sections; that would be unproblematic. Another possibility,
however, is that the phrase means something like “if the
superintendent and the board decide to enforce those
rules.” A power to set the plan aside at will—to reject
Davis as too old at age 42 while rehiring other ex-troopers
at age 45 or 50—would mean that the decision is not
pursuant to the age rules specified in §1-4-3. (We do not
have a situation in which the plan itself creates exceptions.)
When dismissing Davis’s complaint, the district court
did not mention the requirement that the employer’s
decision be “pursuant to” the plan; the judge asked only
whether Indiana has a bona fide plan. Having a bona
fide plan is not enough; that plan must be applied to
yield the contested decision.
Defending its judgment on appeal, the employer con-
tends that Davis’s complaint does not adequately plead
that the decision was not made “pursuant to” the plan.
But a complaint need not plead this; it is enough to
plead the claim (here, that the state held Davis’s age
against him, and that he was at least 40 years old and
thus protected by the ADEA). Section 623(j) affords the
state an affirmative defense; on this subject Indiana bears
the burdens of both production and persuasion. Cf.
Meachum v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395
(2008) (holding this with respect to the defenses in 29
U.S.C. §623(f)). Complaints need not anticipate, and
attempt to plead around, potential affirmative defenses.
See Gomez v. Toledo, 446 U.S. 635 (1980); United States
Gypsum Co. v. Indiana Gas Co., 350 F.3d 623 (7th Cir. 2003).
When Erickson v. Pardus, 127 S. Ct. 2197 (2007), and Bell
No. 07-2543 7

Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), restated the
requirements of Fed. R. Civ. P. 8, the Justices did not
revise the allocation of burdens concerning affirmative
defenses; neither Erickson nor Bell Atlantic mentions
affirmative defenses in general or Gomez in particular.
Because this complaint was dismissed under Rule
12(b)(6), the record is silent on whether the state under-
stands (and applies) 240 Ind. Admin. Code §1-4-18(b)(4)
to permit exceptions to the maximum-age-at-rehire re-
quirement. Davis is entitled to collect and present evi-
dence on that question and to contend that, if the Indiana
State Police sometimes rehires people at age 40 and above,
the decision not to rehire him was not made “pursuant to”
a bona fide plan.
The judgment of the district court is vacated, and the
case is remanded for further proceedings consistent
with this opinion.

9-3-08