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Click here for the full text of this decision FACTS:Thirty police officers in Jackson, Miss., filed an age-discrimination suit against the police department over the department’s new pay structure. The policy provided that those officers with five or fewer years of tenure would receive raises proportionately bigger than their former pay than would officers with five or more years of tenure. The older officers filed suit against the city under the Age Discrimination in Employment Act, claiming the facially neutral policy nonetheless had a disparate impact on officers over 40 years old, since most officers over 40 had five or more years of tenure, and most of the officers with less than five years of tenure were under 40. Additionally, the officers brought claims of disparate treatment, alleging that the city was motivated by age to intentionally discriminate against the older workers. As part of the litigation, the officers sought certain fiscal and personnel discovery. After a magistrate granted their motion to compel, the plaintiffs then filed a motion for sanctions and other penalties. Two days later, the city filed a motion for summary judgment, which the plaintiffs moved to strike because it included exhibits that had previously denied to the plaintiffs through discovery. The district court granted the city’s motion for summary judgment, finding the ADEA does not allow for claims of disparate impact. The district court also dismissed the pending motions by the police officers related to their disparate treatment as moot. The officers appeal both rulings. HOLDING:Affirmed in part; vacated and remanded in part. In disparate treatment cases, the court explains, liability depends on whether the protected trait, such as age, actually motivated the employer’s decision, On the other hand, disparate impact claims arise from facially neutral employment practices that impact one group of employees more harshly than others and cannot be justified as a business necessity. Though the U.S. Supreme Court recognized disparate impact claims under Title VII, it has not done so for ADEA claims. The circuit court that have considered whether the ADEA allows for disparate impact claims are divided. Some, like the 2nd, 8th and 9th U.S. Circuit Courts of Appeals, noting the textual similarity between the ADEA and Title VII, have allowed such claims. Others, such as the 1st, 7th, 10th and 11th U.S. Circuit Courts of Appeals have declined to recognize such a claim because one is not specifically mentioned in the ADEA. Joining this latter group of circuit courts, and noting that the ADEA has an express exception for employer policies that are based on “reasonable factors other than age,” and exception missing from Title VII, the court holds “that the ADEA was not intended to remedy age disparate effects that arise from the application of employment plans or practices that are not based on age.” The court examines the legislative history of the ADEA. The court also goes into a more detailed comparison of the provisions of Title VII and the ADEA. The court also notes the similarity in exceptions between the ADEA and the Equal Pay Act, and that the U.S. Supreme Court declined to allow a disparate impact claim under the Equal Pay Act. The court, however, does rule that McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) allows the police officers’ disparate treatment claim under the ADEA. To make out a prima facie case of discriminatory treatment based on age, the plaintiffs are required to prove: 1. they are within the protected class; 2. they are qualified for the position; 3. they suffered an adverse employment decision; and 4. they were replaced by someone younger or treated less favorably than similarly situated younger employees (i.e., suffered from disparate treatment because of membership in the protected class). The burden then shifts to the defendants to articulate a legitimate, non-discriminatory reason for the adverse employment action. Because information necessary to prove the disparate treatment claim was not forthcoming from the city and had been ordered turned over by a magistrate judge, the district court’s dismissal of the officers’ two motions was premature. On remand, the district court should consider whether the city’s failure to comply with their discovery obligations hindered the officers’ opportunity to continue discovery and supplement the record supporting their disparate treatment claim. OPINION:King, Chief Judge. CONCURRENCE AND DISSENT:Stewart, Circuit Judge. The judge agrees with the decision to vacate and remand the disparate treatment claim, but do so also for the disparate impact claim. “Based upon a close reading of the text, the relevant legislative history, subsequent legislative actions, and concerns of public policy, I submit that a proper interpretation of the ADEA allows a disparate impact cause of action.”

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