Law enforcement officers fall into a different category where age discrimination is concerned. Age actually is a reason to deny hiring a police officer.
Facts
In 1989, Philip Geenen started working for the U.S. Department of Agriculture (USDA) in a law enforcement position in South Dakota. He was 43 at the time. In 2005, at age 59, he applied for a position with the U.S. Department of Interior’s (DOI) Bureau of Land Management (BLM) in Wyoming. The announcement made clear that applicants who were making their first entry into a law enforcement position couldn’t be selected if they were over 37 years old.
If they already were in law enforcement, applicants couldn’t be considered if their age exceeded 37 after subtracting years of service. After he applied, Geenen was notified that he was one of the most highly qualified applicants and his application was being forwarded on.
However, the BLM eventually informed Geenen that he couldn’t be considered for the job because he didn’t meet the maximum age requirements. His age (59) minus his years of service (16) gave him an effective age of 43. Geenen followed up with Special Agent in Charge Michael Miller, who informed him that BLM-Wyoming didn’t grant waivers and his nonselection was strictly based on his age. Greg Courter, who was younger than Geenen, was hired for the position.
In February 2002, the DOI had issued a personnel bulletin on the maximum entry age (MEA) for law enforcement officers clarifying that applicants over 37 could be hired if they could complete a total of 20 years of covered and creditable law enforcement service to meet the mandatory retirement age of 57. The personnel bulletin made clear that waivers were allowed only in the rare instances where a person had unique experience and skills that would be critical to the accomplishment of DOI’s mission.
Geenen filed an age discrimination claim, arguing that he was treated differently than similarly situated candidates for law enforcement positions. He claimed that the BLM had requested waivers for three individuals: James Moriarty, Rudy Maudlin, and Nicholas LaFazio.
Geenen pointed to three similarly situated individuals, and DOI addressed each in turn. Moriarty started work in New Mexico as a criminal investigator in a primary law enforcement position at age 50 without a waiver. However, in 2008, when he was promoted to a supervisory criminal investigator job, the MEA didn’t apply to supervisory positions. Rudy Maudlin was hired by the DOI and granted a waiver from BLM-Utah because at the time he entered service he was 37 1/2 years old. Nicholas LaFazio received a retroactive waiver from BLM- California because he was 37 years and three months old at the time he was appointed; however, he was offered the position before he turned 37.
Uncover hidden problems with your workplace policies and practices with the Employment Practices Self-Audit Workbook: 2nd Edition.
Exception Doesn’t Apply to Me
The Age Discrimination in Employment Act (ADEA) makes it unlawful for an employer to fail or refuse to hire a person because of his age; however, Congress made an exception for law enforcement positions. In 1974, Congress enacted provisions on mandatory retirement and incentives for early retirement in an effort to enhance the “youth and vigor” of federal law enforcement personnel. Lawmakers made clear that a maximum entry age for law enforcement officers would be a valid exception to the ADEA.
Geenen argued that his case shouldn’t be dismissed because he was already a law enforcement officer and his application would have resulted in a transfer, not an original appointment. Consequently, he maintained that the rule didn’t apply to him. He also argued that he was unlawfully denied a waiver.
The court ruled that it was for the DOI to determine whether the position was an original appointment and therefore subject to the MEA. The court found that the agency’s interpretation of the statute was permissible.
MEA Waivers
Geenen claimed that when the agency exercised its discretion regarding the waiver, it did so in a discriminatory fashion. To prove discrimination had occurred, he was obligated to show that the employees who had been granted waivers were similarly situated to him in all respects.
The employee whose situation was closest to Geenen’s was LaFazio; however, he was three months over the MEA, while Geenen was 22 years past the MEA. The court found that they weren’t similar enough to be compared. Further, LaFazio was already a BLM employee who was seeking to move to another branch office within the agency. The MEA doesn’t apply to an employee who moves directly from one “vigorous” law enforcement position to another. The court also found that Maudlin wasn’t similar enough to Geenen because he had always been an employee of the DOI or BLM.
Moriarty became a law enforcement officer at age 40 and was 50 when he was hired by BLM. Geenen contended that his and Moriarty’s situations were identical. The DOI countered with the deposition of Michael Gillmore, who was a program analyst for its Office of Human Resources. Gillmore asserted that he had never seen the DOI accept a waiver from another department. Moriarty didn’t obtain a waiver when he transferred from the USDA to the BLM in 2006; however, his transfer occurred a year after Geenen’s waiver request and after he had initiated his age discrimination complaint. To prove discrimination, Geenen had to show that the same person who made the decision to allow Moriarty’s transfer made the decision not to allow his transfer and that they were similarly situated.
Moriarty transferred to New Mexico, not Wyoming, so the decisionmaker couldn’t have been the same. Further, no one disputed that BLM-Wyoming had never granted an MEA waiver. Consequently, the court found there simply wasn’t sufficient evidence to find that Geenen had been subjected to age discrimination. Geenen v. Salazar , Civ. No. 07-5070-JLV.
Bottom Line
This case points out that even when you think you may be protected by an ironclad statute, an employee may still sue you! There are exceptions to the age discrimination laws ― and law enforcement is one of them.