A Chicago federal judge has doused an age discrimination lawsuit brought by an ex-Chicago firefighter-paramedic, who alleged the city made him retire against his will at 63, allegedly improperly applying mandatory firefighter retirement rules to him, even though he was a paramedic.
The judge, however, did not address the lawsuit’s central claims, instead finding the onetime emergency worker waited too long to lodge a complaint with the U.S. Equal Employment Opportunity Commission.
The Aug. 7 ruling was laid down by U.S. District Judge John Blakey, favoring the city of Chicago in an action against it by plaintiff Gerald W. Barry.
Barry was a uniformed Chicago Fire Department employee from 1999 until he was forcibly retired on his 63rd birthday, April 16, 2016, per a city ordinance that requires firefighters and police officers to retire at 63.
In the year leading up to his retirement, Barry said he squabbled with the city, because the city refused to recognize him as a “cross-trained firefighter-paramedic. After a union grievance, the city agreed in August 2015 to let him work as a paramedic five years. However, in early 2016 the city reassigned him in alleged retaliation for “pursuing his contractual and civil rights,” Barry said.
The city then made him retire, but Barry maintained he was a paramedic, with no firefighting duties, so the firefighter retirement ordinance did not apply to him. As far as paramedics, there is no ordinance mandating a retirement age, Barry claimed.
Barry went through the grievance process with his union, ending with an arbitrator’s decision against him. He then filed a complaint with the EEOC in December 2017. Next, acting as his own attorney, Barry sued the city in March 2018, claiming the city violated the federal Age Discrimination in Employment Act and retaliated against him for asserting his rights. Barry sought damages and job reinstatement.
The city said the suit should be dismissed, because Barry needed to complain to the EEOC within 300 days of the alleged discriminatory acts. In the city’s view, the last alleged act occurred, to hear Barry tell it, in April 2016, ten months short of the 300-day deadline.
Barry argued he should not be held to specific dates, because the discrimination is a continuing affair, in that the city refuses to give him back his job. However, Judge Blakey would have none of it, pointing out “discrete” acts are required, and quoting a federal appellate ruling, said, “failure to remedy an unlawful employment action is not a discrete actionable violation.”
Further, Blakey said the time eaten up by the arbitration process did not stop the clock, as Barry contended.
Blakey dismissed the suit, but gave Barry the opportunity to restate his case and file an amended suit.
Barry has a motion pending, which asks Blakey to reconsider his dismissal decision.
The city is represented by attorneys from its Department of Law.