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SLENKAMP v. BOROUGH OF BRENTWOOD

March 11, 1985

AUGUST H. SLENKAMP, Plaintiff,
v.
BOROUGH OF BRENTWOOD, Defendant



The opinion of the court was delivered by: COHILL

 The Complaint in this case, filed by Plaintiff against the Borough of Brentwood (the "Borough"), a suburb of Pittsburgh, alleges violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA") in connection with a Borough ordinance setting a mandatory retirement age of 65 for its police officers. Defendant has moved for summary judgment on three different grounds: 1) statute of limitations; 2) failure to timely file with the Equal Employment Opportunity Commission ("EEOC"); and 3) a Bona Fide Occupational Qualification ("BFOQ") defense.

 FACTS

 Plaintiff was the Chief of Police of the Borough from 1958 until May 31, 1981, the month he reached the mandatory retirement age of 65. Plaintiff alleges that he was told at a Police Committee meeting of the Borough Council in March 1981 of his required retirement at the end of May. The Committee, in response to Plaintiff's oral request for reconsideration, allegedly reviewed the request, but issued an official denial at an April 21, 1981 public meeting of the Borough Council.

 Plaintiff did not file a charge of age discrimination with the Pennsylvania Human Relations Commission. On March 2, 1982, Plaintiff filed a charge with the Equal Employment Opportunity Commission. The Complaint in this case was filed on September 12, 1984.

 Summary Judgment

 Rule 56 provides, in part, that summary judgment shall be granted only

 
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

 Fed. R. Civ. P. 56(c).

 When considering a motion for summary judgment, the court must determine if there are material facts in dispute and must view the facts in the light most favorable to the nonmoving party. Goclowski v. Penn Central Transp. Co., 571 F.2d 747, 751 (3d Cir. 1977). The moving party has the burden of establishing that no genuine issue of fact exists. Butz v. Hertz Corp., 554 F. Supp. 1178, 1181 (W.D. Pa. 1983).

 A. Statute of Limitations

 Defendant argues that summary judgment is appropriate because the action was filed more than two years after the alleged discriminatory act and because the violation alleged is not "willful" so as to extend the statute of limitations to three years. In so arguing, Defendant urges us to adopt a different standard for "willful" when considering statute of limitations than for liquidated damages issues.

 We believe two inquiries are necessary to decide this issue: 1) the appropriate standard for "willfulness" under section 626(e)(1); and 2) whether summary judgment is appropriate ...


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