The opinion of the court was delivered by: MINER
MEMORANDUM DECISION and ORDER
This is an action for compensatory damages and injunctive relief under the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621 et seq. Federal jurisdiction is founded upon 29 U.S.C. § 626(c).
Before this Court is defendants' motion for summary judgment, Fed.R.Civ.P. 56, this Court, upon notice to the parties, having converted a motion to dismiss to one for summary judgment by order dated January 29, 1982. Fed.R.Civ.P. 12(b).
Plaintiff Campbell brings this action against William G. Connelie, Superintendent of the Division of New York State Police, in his official capacity, the New York State Policemen's and Firemen's Retirement System, and the State of New York, as a result of plaintiff's mandatory retirement at age fifty-five (55) years from his position as a New York State Trooper pursuant to section 381-b(e) of the New York Retirement and Social Security Law.
Plaintiff alleges that section 381-b(e) is in violation of 29 U.S.C. § 623(a) (1) and 631.
The defendants argue that summary judgment should be granted for several reasons. First, defendants claim that age is a bona fide occupational qualification ("BFOQ") pursuant to 29 U.S.C. § 623(f)(1).
The Supreme Court, in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976), held that age, as a qualification for performing the duties of a trooper, was a bona fide occupational qualification, reasonably necessary to normal operation and function of the Massachusetts State Police and the performance of duties of a state police officer. Moreover, New York state and federal courts have determined that this holding is applicable to the New York State Police, and that the age 55 retirement of members of the New York State Police is a bona fide occupational qualification. Bouffier v. Frank, 389 F. Supp. 502 (E.D.N.Y.1975); State Division of Human Rights v. New York, 62 A.D.2d 617, 406 N.Y.S.2d 401 (4th Dep't 1978), appeal dismissed, 46 N.Y.2d 939, 415 N.Y.S.2d 1028, 386 N.E.2d 1340.
Second, defendants contend that the plaintiff, having voluntarily elected to participate in the retirement plan provided in New York Retirement and Social Security Law § 381-b, a plan providing greater benefits than other retirement plans allowing plaintiff to retire as late as age 70, is estopped from maintaining this proceeding. See Bouffier v. Frank, supra. Third, defendants argue that this proceeding is barred by the tenth and eleventh amendments of the United States Constitution. The defendants in this proceeding are the State of New York itself, the New York State Policemen's and Firemen's Retirement System, a state agency, and the Superintendent of State Police, who is sued in his official capacity. Since the State of New York has not waived its sovereign immunity, defendants contend that this proceeding is barred by the eleventh amendment. Moreover, defendants take the position that Congress acted in violation of the tenth amendment in extending the coverage of the ADEA to states by including states within the definition of the term "employer." 29 U.S.C. § 630(b). See National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976) EEOC v. State of Wyoming, 514 F. Supp. 595 (D.Wyo.1981), cert. granted, 455 U.S. 935, 102 S. Ct. 1423, 71 L. Ed. 2d 645 (1982). Finally, defendants assert that the New York State Retirement and Social Security Law § 381-b is a bona fide employee benefit plan existing prior to the 1978 amendment to the ADEA and not a "subterfuge" within the meaning of 29 U.S.C. § 623(f)(2).
Plaintiff, on the other hand, maintains that the 1978 amendment to the ADEA, effective April 6, 1978,
eliminated the exception of a bona fide occupational qualification as a defense to the Act. More specifically, it is the position of plaintiff that the 1978 amendment expressly mandates that no employee retirement benefit plan "require or permit the involuntary retirement of any individual" solely because of age. 29 U.S.C. § 623(f)(2) (as amended). Plaintiff alleges that defendants' retirement benefit plan, based solely upon age as a criterion for retirement, is unlawful under the ADEA.
This Court agrees with plaintiff that the 1978 amendment effectively overruled United Air Lines, Inc. v. McMann, 434 U.S. 192, 98 S. Ct. 444, 54 L. Ed. 2d 402 (1977),
in that no longer may bona fide employee retirement benefit plans, pursuant to § 623(f)(2), be based purely upon age. However, where, as here, it is undisputed that an employee was terminated solely because of age, an employer may still escape liability under the Act if he demonstrates the so-called "BFOQ" exception, which allows an employer to base retirement solely on age "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." 29 U.S.C. § 623(f)(1). See E.E.O.C. v. County of Santa Barbara, 666 F.2d 373, 375 (9th Cir. 1982).
In order to fit within the BFOQ statutory exception, the defendants must satisfy the two-pronged test formulated in Usery v. Tamiami Trail Tours, 531 F.2d 224, 236 (5th Cir. 1976). The burden is to demonstrate:
(1) that the BFOQ which it invokes is reasonably necessary to the essence of its business (here, the operation of an efficient state police for the protection of the public), and
(2) that the employer has reasonable cause, i.e., a factual basis for believing that all persons within the class (here, persons over 55 years of age) would be unable to perform safely and efficiently the duties of the job involved, or that it is impossible or impractical to deal with persons over the age limit on an ...