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In Wayne David v. Indiana State Police (SD Ind. Judge McKinney), a 7-page opinion, Chief Judge Easterbrook writes:

Wayne Davis, a State Trooper in Indiana, resigned when 42 years old to take another job. Two months later he decided that he had made a mistake and asked for his old job back. The State Police said no, telling Davis that he was too old—for extroopers seeking reinstatement must “meet all the requirements for police employees as specified in . . . 240 IAC 1-4-3”. 240 Ind. Admin. Code §1-4-18(b)(4). Among the requirements in §1-4-3 is that the applicant be at least 21, and under 40, when hired. Davis contends in this suit that, by holding his age against him, Indiana violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–33a. * * *

Davis does not contend that Indiana’s rules, which predate EEOC v. Wyoming, are “subterfuges” to evade the Act. Instead he contends that the decision not to rehire him is not one “pursuant to a bona fide hiring . . . plan”. His principal argument is that Indiana’s system is not “bona fide” because it is senseless; a fallback argument is that the decision not to rehire him, in particular, was not made “pursuant to” the state’s age limits. Indiana allows state troopers to work until age 65. Davis asks why a 2-month break in employment at age 42 should make him a pariah, when he would have been acceptable at age 43, 45, 50, 55, and 60 had he just stayed put. It is a good question, but not one for the federal judiciary. All §623(j)(2) requires is that the plan be “bona fide” and not a “subterfuge” to evade the ADEA. Whether a state’s plan is wise is not material to the application of §623(j)(2). A plan is “bona fide” when it is real rather than a fable spun for the occasion. Kopec, 193 F.3d at 901. * * *

When dismissing Davis’s complaint, the district court did not mention the requirement that the employer’s decision be “pursuant to” the plan; the judge asked only whether Indiana has a bona fide plan. Having a bona fide plan is not enough; that plan must be applied to yield the contested decision. * * *

Because this complaint was dismissed under Rule 12(b)(6), the record is silent on whether the state understands (and applies) 240 Ind. Admin. Code §1-4-18(b)(4) to permit exceptions to the maximum-age-at-rehire requirement. Davis is entitled to collect and present evidence on that question and to contend that, if the Indiana State Police sometimes rehires people at age 40 and above, the decision not to rehire him was not made “pursuant to” a bona fide plan.

The judgment of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion.