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MAKI v. COMMISSIONER OF EDUC. OF NEW YORK

June 30, 1983

MAKI
v.
THE COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK and THE NEWFIELD CENTRAL SCHOOL DISTRICT



The opinion of the court was delivered by: MINER

MINER, District Judge: --

I

 In this action, plaintiff claims a violation of the Age Discrimination in Employment Act (hereinafter "ADEA"), 29 U.S.C. §§ 621 et seq., in that he was required by state regulation to retire as a school bus driver of the Newfield Central School District solely because he had reached the age of sixty-five. Plaintiff seeks back-pay, declaratory and injunctive relief. Federal jurisdiction is asserted under 29 U.S.C. § 626(c).

 This case was tried to the Court on March 23, 1983. *fn1" At the conclusion of the trial, the Court requested the parties to submit post-trial memoranda, specifically addressing the issue of statistics, as well as proposed findings of fact and conclusions of law.

 The underlying facts here are uncontroverted and quite simple. Plaintiff Elmer Maki attained his sixty-fifth birthday on April 17, 1982. Prior to that date, he had been employed by defendant Newfield Central School District (hereinafter "District") as a school bus driver. On June 19, 1981 the clerk of the District sent Mr. Maki a routine notice informing him that his employment as a school bus driver for the District was being continued through the summer vacation, that he would not have any actual duties during that vacation unless he worked in the summer recreation program or the school census. Finally, he was informed that he would continue in his regular assignment as a school bus driver during the 1981-82 school year.

 However, included on the face of the June 19, 1981 letter was a typewritten notice advising plaintiff that "[a]s you are aware after your 65th birthday, which is on April 17, 1982, the laws of the State of New York mandates [sic] that you will no longer be eligible to drive a school bus." This notice was predicated upon 8 N.Y.C.R.R. § 156.3(b) which provides that "[a]ll drivers of school transportation conveyances shall be at least 21 years of age, but not in excess of 65 years of age." *fn2" Plaintiff alleges that this regulation is in violation of 29 U.S.C. §§ 623(a)(1) and 631. *fn3"

 III

 It is clear, and all parties apparently agree, that plaintiff has proved a prima facie case of age discrimination.See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S. Ct. 1478, 75 L. Ed. 2d 403, 51 U.S.L.W. 4354, 31 FEP Cases 609 (1983); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207, 25 FEP Cases 113 (1981). *fn4" However, where, as here, even if 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 EEOC v. County of Santa Barbara, 666 F.2d 373, 375, 27 FEP Cases 1481 (9th Cir. 1982).

 In Campbell v. Connelie, 542 F. Supp. 275, 278, 28 FEP Cases 1726 (N.D.N.Y. 1982) this Court determined that:

 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, 226, 12 FEP Cases 1233 (5th Cir. 1976). The burden is to demonstrate:

 (1) that the BFOQ it invokes is reasonably necessary to the essence of its business . . . and

 (2) that the employer has reasonable cause, i.e., a factual basis for believing that all persons within the class . . . 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 that age limit on an individualized basis. [citation omitted].

 In other words, defendants have the burden of demonstrating both (1) and either the first or second prong of (2). See, e.g., Harriss v. Pan American World Airways, Inc., 649 F.2d 670, 676, 24 FEP Cases 947 (9th Cir. 1980); Arritt v. Grisell, 567 F.2d 1267, 1271, 17 FEP Cases 753 (4th Cir. 1977);

 However, many courts have held that the presence of an overriding safety factor, i.e. where safety is "the essence" of a particular business such as the transportation of passengers by bus or airplane, minimizes the level of proof required to establish a BFOQ. Tuohy v. Ford Motor Co., 675 F.2d 842, 845, 28 FEP Cases 1116 (6th Cir. 1982); EEOC v. County of Santa Barbara, supra, 666 F.2d at 377; Murnane v. American Airlines, Inc., 215 U.S. App. D.C. 55, 667 F.2d 98, 101, 26 FEP Cases 1537 (D.C. Cir. 1981); cert. denied, 456 U.S. 915, 102 S. Ct. 1770, 28 FEP Cases 712, 72 L. Ed. 2d 174 (1982); Arritt v. Grisell, FEP Cases 712 (1982); Arritt v. Grisell, supra, 567 F.2d at 1271; Beck v. Borough of Manheim, 505 F. Supp. 923, 925, 24 FEP Cases 1300 (E.D. Pa. 1981). *fn5" Cf. Hodgson v. Greyhound Lines, Inc., 499 F.2d 859, 863, 7 FEP Cases 817 (7th Cir. 1974), cert. denied sub nom. Brennan v. Greyhound Lines, Inc., 419 U.S. 1122, 9 FEP Cases 58, 42 L. Ed. 2d 822, 95 S. Ct. 805 (1975) (where the Seventh Circuit held that an employer who is engaged in inherently dangerous activities, or whose business is primarily safety-related, need only show ...


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