HomeMy WebLinkAbout1986-08-12; City Council; 8730; Safety personnel retirement age & EEOC agmtTITLE APPROVAL OF CONCILIATION AGREEMENT
WITH U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMI SSIOfJ COPJCERNIfJG VITG. 8-12- :"""-- RETIREMENT AGE FOR SAFETY PERSOlJPJEL
RECOMMENDED ACTION:
DEPT. HD. -
CITY *Try=
CITY MGR.
Adopt Resolution No. R7J/ authorizing the Mayor to execute the
conciliation agreement in the matter of the United States Equal
Opportunity Employment Commission and the City of Carlsbad.
ITEM EXPLAKATION
A dispute has existed between the Equal Lmployment Opportunity
Commission (EEOC) and cities in California who contract with the
California Public Employees Retirement System (PERS) with regard
to the mandatory retirement age (60) for safety members. The EEOC
contended that the PERS requirement for retirement for safety
members prior to the age of 70 violated the federal age discrim- ination act. The City's position in the past had been that this
is a matter to be resolved between the EEOC and PERS.
The authority for cities who contract with PERS to retire police officers prior to the age of 70 has been invalidated by court action. The City Attorney recommends the City authorize the Mayor to execute the conciliation agreement. The conciliation agreement does not constitute admission by the City of any wrong- doing, but releases the City with respect to lawsuits pertaining to a mandatory retirement age below age 70 for safety members. Execution of the conciliation agreement should not cause any problems for either the Police or Fire Departments of Carlsbad.
The EEOC has sent the conciliation agreement to all cities whose contract with PERS contains a retirement age for local safety members under 70 years of age. The San Diego County City Attorneys
Association unanimously voted to recommend that all San Diego
County cities who have received the conciliation request sign the
agreement. The Fire and Police Chiefs concur in this recommendation.
EXHIBITS
Resolution No. 7&--/ Letter to Mayor Casler from EEOC
Copy of Conciliation Agreement
RESOLUTION NO. 8751
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA AUTHORIZING THE MAYOR TO
EXECUTE THE CONCILIATION AGREEMENT BETWEEN THE
EEOC AND THE CITY OF CARLSBAD RELATING TO
CHARGE NUMBER 094830395.
The City Council of the City of Carlsbad, California
hereby resolves as follows:
1. That the Mayor is authorized to execute the
conciliation agreement in the matter of U. S. Equal Employment
Opportunity Commission and City of Carlsbad charge number
094830395 a copy of which is attached hereto and is incorporated
by this reference.
PASSED, APPROVED AND ADOPTED at a regular meeting of thc
City Council of the City of Carlsbad, California, held on the
12th day of August , 1986 by the following vote,
to wit:
AYES: Council Members Casler, Lewis, Kulchin, Chick and Pettine
NOES: None
ABSENT: None
Vl d(!b2/
MARY H. /CASLER, Mayor J ATTEST :
L'NITED STiTES GO\ ER\\IC \T
EQUAL EMPLOYMEST OPPORTI \In COt1\1
PIS. Yary Casler
Mayor
City of Calsbad
1200 Elm Avenue
Car'lsbad, CA 92008-1989
Charge No.: 094830395 EEOC V. City of Carlsbad
On 5/29/84 you were notified that EEOC had found a violation in
regard to a mandatory retirement age for safety employees in the above
case. During the course of the investigation you indicated that your
retirement policy was based on state law, i.e. California Public
Employees' Retirement (Gov. Code Section 20980 et. seq.) which required
"local safety members" to retire prior to age 70. This defense was rejected based on the fact that the Ninth Circuit has held that state
law is not a valid defense to a violation of the ADEA.
In view of the recent legal development of Government Code Section
20980.1 and 20982 (which required local safety members to retire at age
60 and 65 respectively) being repealed effective September 27, 1985, by
Assembly Bill 529, we are now contacting you in an attempt to resolve
this matter. It is our understanding that you have received a notice
from the California Public Employees Retirement System (PERS)
describing the change in California Law.
Recently the United States District Court for the Eastern District of
California approved a Consent Decree whereby PERS has been permanently
enjoined from agreeing to allow any local contracting agency to maintain a mandatory retirement age prior to age 70. Pursuant to this consent decree a local contracting agency may maintain a mandatory retirement policy based on a bona fide occupational qualification
(BFOQ) exception only upon a showing of:
(1) A BFoQ determination issued by a federal court, or:
(2) Written approval or certification from EEOC that age is
BFoQ .
Charge No.: 094830395
Page 2 of 2
Since neither of the above situations applies in this case, it is our assumption that you have elected to change your retirement policy and that your employees are not required to retire based on age prior to age 70. If so, EEOC would like very much to resolve this pending matter by means of a conciliation agreement. Please find enclosed a
proposed conciliation agreement for your review. If acceptable please execute and return at your earliest convenience.
If'you have any questions or would like to discuss this matter, please phone me at (213) 251-7357. In view of the recent legal developments,
it is important that this matter be resolved.
We hope to hear from you soon.
Sincerely,
JUANITA BANKS
Supervisory EOS
Encl: Concilation Agreement
. ".
L'NITED STATES GO[ ER\\fF\T
EQL'AL EMPLOYMENT OPPORTl SITl CO \1\1 I )SI 0 \
GOHIEK\O Ut LOS ESTADOS ClIDOS
< O\llSlO\ DE lCl .ILD+D DF OPORTL\ID+D E\ EL Fi1PLI.O
CONCILIATION AG RE EMEIJT
IN THE MATTER OF
U, S. EQUAL, EMPLOYMENT OPPORTUNITY COMMISSION
and
Charge No: 094830395
RESPONDENTCity of Carlsbad
1200 Elm Avenue
Carlsbad, CA. 92008-1989
**********
An investigation having been made under the Age Discrimination in
Employment Act (ADEA) by the United States Equal Employment Opportunity
Commission (the Commission) and Letters of Violation having been
issued, the parties do resolve and conciliate this matter as follows:
SECTION
I.
11.
111.
.-
Charge No: 094830395
Page No: 2
TABLE OF CONTENTS
TITLE
GENERAL PROVISIONS
RELIEF
SIGNATURES
PAGE -
3
4
5
G
Charge No: 094830395 Page No: 3
_-
PART I. GENERAL PROVISIONS
1. It is understood that this Agreement does not constitute an '
admission by the Respondent of any violation of ADEA provisions.
2. The Commission hereby waives, releases, and covenants not to sue
Respondent with respect to any matters pertaining to a mandatory
retirement age, below age 70, for safety member employees subject
to the former requirements of the Public Employees Retirement
System. This waiver is subject to the performance by the Respon- dent of the promises and representations contained herein. The Commission deems this Agreement to be fair and equitable and it hereby waives, releases and covenants not to sue Respondent with respect to any matter of specific relief conciliated in this Agreement: provided, however, that the Commission reserves all rights to proceed with respect to matters like and related to these matters but not covered by the terms of this Agreement.
3. Nothing in this Agreement shall be construed to preclude any party hereto from bringing suit to enforce this Agreement in the event that there is a failure to perform the promises and repre- sentations contained herein.
4. While no injured parties have been identified in this inves-
tigation, nothing in this agreement shall be construed to
deny any aggrieved individual his/her right to institute
a private suit under the ADEA,
5. The Respondent agrees that it shall comply with all requirements of
the ADEA.
6. The parties agree that there shall be no discrimination or
retaliation of any kind against any person because of opposition to any practice declared unlawful under the ADEA, or participa- tion in any manner in any investigation, proceeding, or hearing under the ADEA.
/
..
Charge KO: 094830395
Page No: 4
PART 11. RELIEF
1. Respondent agrees that no employee in a safety member classi-
fication will be mandatorily retired before the age of seventy
(70) for reasons other than those medically related.
2.. Respondent agrees to publicly announce to all enployees and
potential employees that there is no mandatory retirement
for safety member classifications before the age of seventy
(70).
The Respondent agrees to notify the Commission in writing within thirty
(30) days that all the relief provisions of this conciliation have been
implemented.
The Respondent agrees that the Commission may review compliance with this Agreement. As a part of such review the Commission may inspect the premises at reasonable times, interview employees, and examine and copy relevant documents.
Charge No: 094830395 Page No: 5
PART 111. SIGNATURES
I have read the foregoing Agreement, and I accept and agree to its
provisions:
DATE : . I3 lSfi 1 < d.LL-
Signature /#f Respondent
Approved on Behalf of the Commission:
MARY H. CASLVER, Mayor
City of Carlsbad
DATE :
LEONORA L. GUARRAIA, Director
Los Angeles District Office
.- .€UP( *.
UNITED STATES GOVERNMENT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
GOBIERNO DE LOS ESTADOS UNIDOS
COMlSlON DE lCUALDAD DE OPORTUNlDAD EN EL EMPLEO
MS. Mary Casler
Mayor
City of Calsbad
1200 Elm Avenue
Carlsbad, CA 92008-1989
3660 WIISHIRE BLVD., 5TH FLOOR
LOS ANGELES, CALIFORNIA 90010
Charge No.: 094830395
EEOC V. City of Carlsbad
On 5/29/84 you were notified that EEOC had found a violation in
regard to a mandatory retirement age for safety employees in the above
case. During the course of the investigation you indicated that your
retirement policy was based on state law, i.e. California Public
Employees' Retirement (Gov. Code Section 20980 et. seq.) which required
"local safety members" to retire prior to age 70. This defense was
rejected based on the fact that the Ninth Circuit has held that state
law is not a valid defense to a violation of the ADEA.
In view of the recent legal development of Government Code Section
20980.1 and 20982 (which required local safety members to retire at age
60 and 65 respectively) being repealed effective September 27, 1985, by
Assembly Bill 529, we are now contacting you in an attempt to resolve
this matter. It is our understanding that you have received a notice
from the California Public Employees Retirement System (PERS)
describing the change in California Law.
Recently the United States District Court for the Eastern District of
California approved a Consent Decree whereby PERS has been permanently
enjoined from agreeing to allow any local contracting agency to
maintain a mandatory retirement age prior to age 70. Pursuant to this
consent decree a local contracting agency may maintain a mandatory
retirement policy based on a bona fide occupational qualification
(BFOQ) exception only upon a showing of:
(1) A BFoQ determination issued by a federal court, or:
(2) Written approval or certification from EEOC that age is
BFoQ .
3
Charge No.: 094830395
Page 2 of 2
Since neither of the above situations applies in this case, it is our assumption that you have elected to change your retirement policy and that your employees are not required to retire based on age prior to age 70. If so, EEOC would like very much to resolve this pending matter by means of a conciliation agreement. Please find enclosed a proposed conciliation agreement for your review. If acceptable please execute and return at your earliest convenience.
If you have any questions or would like to discuss this matter, please
phone me at (213) 251-7357. In view of the recent legal developments,
it is important that this matter be resolved.
We hope to hear from you soon.
S inc ere1 y ,
JUANITA BANKS
Supervisory EOS
Encl: Concilation Agreement