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HAHN

October 30, 1984

SUZANNE M. HAHN, PATRICIA J. KOCH, MARY CATHERINE O'SULLIVAN, DIANE M. SMITH, SANDRA C. WALKER, LINDA D. CRAIG, JOSEPHINE M. HODGE, SHIRLEY E. BOWERS, Plaintiffs, and EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, BARBARA BROZYNA, ROSE ANN NOWALDY, MARGARET L. TOBIAS, WILLIAM A. SHAW, ELLIOTT J. WILLIAMS, JR., CURTIS G. WILLIS, CARL S. RICHTER, DAVID J. ASTON, CLEDEL M. BERRY, MARSEILLE LUXENBERG, EDWARD C. NEIMAN, KENNETH M. BIENKO, PATRICK J. RINDFLEISCH, JOHN P. FARLEY, DERRIK DECKER, JOHN WOLF, CHARLES KLIPFEL, DAVID C. HOY, JAMES R. DAVIS, CHRISTOPHER C. CLARK, JAMES ANTHONY LEMA, BRENDA D. MICHEL, CHERYL R. DELANO, LINDA M. KERR, ANDRE JAMES, MARK McMAHON, MARILYN BETZ, FRANCISCO DeJESUS, CATHERINE M. HARRIS, RICHARD W. WAGSTAFF, RICHARD W. COOPER, EMERY WILLIAMS, MARTIN SCHMIDT, BRUCE D. SCHMIDT, JOHN GIACCHINO, DAVID D. DILLON, CARMEN LEONE, PAUL M. MIKULSKI, REGINALD HOKES, ROY NOLAN GLADDEN, JOHNNIE JORDAN, ANTHONY M. McDONALD, ARRIE EDWARD MOORE, SHERMAN M. ABDALLAH, MARILYN MACK, DANIEL CUSELLA, RICHARD F. COTTER, WILLIAM LORENZ, MICHAEL P. MOORE, JAMES P. SHEA, JOSEPH J. TUTUSKA, MICHAEL A. ARCARA, MICHAEL F. MALANEY, HARRISON MULLEN, JR., CARL E. JONES, REGINALD MINOR, ELIJAH FEASTER, JR., JEROME HUTCHERSON, MARYANN MOTLEY, LEALER STALLWORTH, MARIE T. RICHARDSON, PHILLIP WIPPERMAN, WILLIAM J. QUINN, PHYLLIS A. OSTROWSKI, PETER BREITNAUER, PAUL S. POLAKIEWICZ, JANICE L. MOULIN, MARRILEE A. COLLIER, EVELYNE A. O'SULLIVAN, MICHAEL H. WEHNER, THOMAS SHEA, EDWARD L. WITASZEK, RONALD C. McCABE, Plaintiff-Intervenors,
v.
THE CITY OF BUFFALO, a Municipal Corporation, JAMES B. CUNNINGHAM, in his capacity as Police Commissioner, City of Buffalo Police Department, ANTHONY J. COLLUCCI, PASCHAL C. RUBINO, and MICHAEL L. BRODERICK, in their capacities as Commissioners, City of Buffalo Civil Service, and THE NEW YORK STATE DEPT. OF CIVIL SERVICE, Defendants; THOMAS J. DOMINO, Plaintiff, vs JOHN V. CLARK, New York State Department of Civil Service, VICTOR S. BAHOU, in his capacity as President of the New York State Civil Service Commission and Head of the New York State Department of Civil Service, JAMES G. McFARLAND, in his capacity as Commissioner of the New York State Civil Service Commission, and JOSEPHINE GAMBINO, in her capacity as Commissioner of the New York Civil Service Commission, Defendants; KENNETH A. KUCZKA, Plaintiff, vs JOHN V. CLARK, New York State Department of Civil Service, VICTOR S. BAHOU, in his capacity as President of the New York State Civil Service Commission and as Head of the New York State Department of Civil Service, JAMES G. McFARLAND, in his capacity as Commissioner of the New York State Civil Service Commission, and JOSEPHINE GAMBINO, in her capacity as Commissioner of the New York State Civil Service Commission, Defendants; DAVID R. KARNEY, Plaintiff, vs JOHN V. CLARK, New York State Department of Civil Service, VICTOR S. BAHOU, as President of the New York State Civil Service Commission and as Head of the New York State Department of Civil Service, JAMES G. McFARLAND, as a Commissioner of the New York State Civil Service Commission, and JOSEPHINE L. GAMBINO, as a Commissioner of the New York State Civil Service Commission, and KENNETH J. BRAUN, as Sheriff of Erie County, Defendants.



The opinion of the court was delivered by: CURTIN

CURTIN, CHIEF UNITED STATES JUDGE

This case involves age discrimination in the hiring of police officers in Buffalo, New York, and other municipalities in the Buffalo area. Section 58(1)(a) of the New York State Civil Service Law provides that no person who is more than 29 years of age shall be eligible for appointment as a police officer. *fn1"

 The plaintiffs are individuals over the age of 29 whose age disqualifies them from employment in various police departments. Some of the plaintiffs are over 40 years old. These plaintiffs have standing to claim that section 58(1)(a) violates their rights under section 4(a)(1) of the Age Discrimination in Employment Act [ADEA], 29 U.S.C. § 623(a)(1). *fn2" The remaining plaintiffs are over age 29 but less than age 40. The plaintiffs between the ages of 29 and 40 claim that section 58(1)(a) denies them the equal protection of the laws. Plaintiffs under the age of 40 do not have standing to assert claims under the ADEA, because the act applies only to persons between the ages of 40 and 70. *fn3" The Equal Employment Opportunity Commission [EEOC] has intervened on behalf of those plaintiffs asserting claims under the ADEA.

 The United States Court of Appeals for the Second Circuit has recently held that the presence of a one-house veto clause in the Reorganization Act of 1977, 5 U.S.C. § 901 et seq., invalidates the authority of the EEOC to enforce the ADEA. Equal Employment Opportunity Commission v. CBS, Inc., F.2d (2d Cir. 1984). To avoid unnecessary disruption of the many enforcement cases now pending, the court stayed its judgment until December 31, 1984, so that Congress could correct the defect in the statute. Absent such correction, the complaint in that case would be dismissed.

 The decision in EEOC v. CBS would not require dismissal of the complaint in the present case. Here, three of the original plaintiffs are over 40 years of age. The EEOC participated as an intervenor. This case is still viable without the participation of the EEOC, unlike EEOC v. CBS, in which the EEOC was the sole plaintiff. In any event, Congress has passed, and the President has signed into law, H.R. 6225, which has remedied the deficiency in the EEOC's authority to enforce the ADEA.

 Critical to the claim under the ADEA is the issue of whether a maximum hiring age of less than 40 is a bona fide occupational qualification [BFOQ] reasonably necessary for the operation of municipal police departments. If age less than 40 is a BFOQ as defined in section 4(f)(1) of the ADEA, 29 U.S.C. § 623(f)(1), *fn4" then the continued enforcement of section 58(1)(a) does not violate the ADEA.

 The court has heard the trial testimony of experts in the fields of medicine and law enforcement. The court's decision is therefore based upon a fully developed record of testimony and exhibits. Upon review of this record and the applicable law, I conclude that the enforcement of section 58(1)(a) does not deny plaintiffs the equal protection of the laws. However, I find that section 58(1)(a) violates the rights to which the plaintiffs over age 40 are entitled under the ADEA.

 The court has granted preliminary relief to the eight original plaintiffs in this case. This relief has been extended to the more than 70 persons who have since intervened as plaintiffs. Under the terms of the orders granting such relief, the defendants have been enjoined from enforcing section 58(1)(a). Accordingly, the intervenors who have written the competitive examinations necessary to become police officers have been placed upon the eligibility lists from which officers are appointed. Some have been appointed and have taken jobs as police officers in spite of not meeting the age requirement.

 In another procedural matter, the court has consolidated the cases of Domino v. Clark, CIV-80-796C; Kuczka v. Clark, CIV-80-797C; and Karney v. Clark, CIV-80-1184C, with the present action.

 The following are the court's findings of fact and conclusions of law.

 I. EQUAL PROTECTION

 Section 58(1)(a) concerns eligibility for government employment and discriminates against persons over age 29. Age classifications of this sort are not "suspect," and the right to government employment has been held not to be fundamental. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976). If this case involved either a suspect classification or a fundamental right, then the court would be required to analyze section 58(1)(a) under the "strict scrutiny" standard, a difficult test which few statutes can pass. Bernal v. Fainter, 467 U.S. 216, 52 U.S.L.W. 4669, 4670, 81 L. Ed. 2d 175, 104 S. Ct. 2312 n.6 (May 30, 1984). However, the applicable legal standard in this case is a more relaxed standard which requires only that the statute be rationally related to a legitimate state interest.

 Massachusetts Board of Retirement v. Murgia, supra.

 Courts are reluctant to overturn state statutes in cases where suspect classifications and fundamental rights are not involved and where the "rationality" test applies. Vance v. Bradley, 440 U.S. 93, 97, 59 L. Ed. 2d 171, 99 S. Ct. 939 (1979). The evidence in the present case clearly shows that the facts upon which the age classification is apparently based could reasonably be conceived to be true. I also find that the statute is reasonably related to the legitimate goal of maintaining a safe and efficient police department. I must therefore conclude that section 58(1)(a) does not violate the equal protection clause.

 Section 58(1)(a) has been the subject of equal protection analysis in at least four cases decided by federal district courts. The statute was upheld in three of these cases.See, Tober v. Scofield, CIV-82-51T (W.D.N.Y. December 29, 1983); Sica v. County of Nassau, CIV-81-3497 (E.D.N.Y. March 9, 1982); Colon, et al. v. New York, 535 F. Supp. 1108 (S.D.N.Y. 1982).Section 58(1)(a) was held to be unconstitutional in McMahon v. Barclay, 510 F. Supp. 1114 (S.D.N.Y. 1981), a case decided before the decisions were handed down in the other three cases. Each of the aforementioned cases was decided on a motion for summary judgment. The present case is the first in which an extensive record was developed.

 There are some apparent incongruities in section 58(1)(a) which lend surface support to the argument that it is not rationally related to the State's interest. The statute generally forbids hiring persons older than 29, but it makes exceptions in certain cases. One important exception is for persons over age 29 who have spent time in military service. The time spent in military service, not exceeding a period of six years, may be subtracted from the ages of these applicants. Civil Service Law § 58(1)(a). Another exception applies to police departments which experience "aggravated recruitment difficulties" which cause personnel shortages. The age limitation may be raised temporarily to 35 under such circumstances. Civil Service Law § 58a-1.

 The evidence in the present case indicates that the number of persons appointed under the exception for persons in military service is quite small. As for the exception concerning departments with "aggravated recruitment difficulties," this is an emergency provision which is not at all inconsistent with the defendants' contention that the appointment of young men and women is necessary for the operation of efficient and safe police departments.

 The law enforcement experts who testified for the defendant State of New York all agreed that the age limit for appointing police officers should remain as it is. Charles F. Peterson, Deputy Commissioner of the Suffolk County Police Department, testified that younger men are easier to train for police work. [Tr. V, 71.] William G. McMahon, Deputy Commissioner of the New York State Division of Criminal Justice Services, testified that younger apppointees are more highly motivated and better able to perform difficult assignments. [Tr. IV, 36.] There was also testimony to the effect that the average "street life" of a police officer was about ten years [Tr. IV, 54], and the medical evidence uniformly pointed to the plain fact that physical capabilities tend to decline somewhat after age 29. This evidence might suggest that the most capable and efficient police force is composed of officers who are hired at a young age and spend their best years on the force while in peak physical condition.

 The issue before the court on the equal protection question is not whether the court believes that these facts and inferences are true. The court notes that this inquiry is vastly different from the analysis required by the plaintiffs' claim under the ADEA. As we shall see, the ADEA claim requires a far more searching scrutiny of the evidence. As for the equal protection claim, the question is whether the defendants' evidence could "reasonably be conceived to be true by the governmental decisionmaker." Vance v. Bradley, 440 U.S. at 111. The plaintiffs' burden is to convince the court that these facts cannot reasonably be believed. This burden is demanding, Colon v. City of New York, 535 F. Supp. at 1113, and the plaintiffs have failed to bear it in this case.

 The facts upon which the age classification is apparently based are believable. Taken as true, they would indicate that the age requirement of section 58(1)(a) is rationally related to the goal of maintaining an efficient and safe police department. Therefore, section 58(1)(a) does not deny the plaintiffs the equal protection of the laws. Accord, Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977) (West Virginia statute prohibiting appointment of persons over age 35 to city police departments is constitutional).

 II. ADEA

 A. Constitutionality As Applied to State and Local Governments

 Until 1974, the substantive provisions of the ADEA did not apply to state and local governments.However, the Act was then amended to bring governmental entities within its scope. 29 U.S.C. § 630(b)(2). The State of New York has raised the threshold question of whether Congress acted constitutionally when it broadened the scope of the ADEA in this fashion. The State argues that the application of the ADEA to state and local governments violates the tenth amendment, citing National League of Cities v. Usery, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976). This argument need not detain us long. In Equal Employment Opportunity Commission v. Wyoming, 460 U.S. 226, 103 S. Ct. 1054, 75 L. Ed. 2d 18 (1983), the Supreme Court held that the tenth amendment did not preclude the application of the ADEA to a Wyoming law which required that game wardens retire at age 55.The Court noted that a great majority of courts had upheld the 1974 amendment to the ADEA. Id. at 1059 and n.6. Since the Court's decision in Wyoming, many courts have upheld the application of the ADEA to state and local governments in cases similar to the case at bar. See, e.g., Equal Employment Opportunity Commission v. City of Altoona, Pennsylvania, 723 F.2d 4 (3d Cir. 1983), cert. denied, 467 U.S. 1204, 81 L. Ed. 2d 344, 104 S. Ct. 2386 (1984); Ramirez v. Puerto Rico Fire Service, 715 F.2d 694 (1st Cir. 1983); Equal Employment Opportunity Commission v. Los Angeles County 706 F.2d 1039 (9th Cir. 1983), cert. denied, 464 U.S. 1073, 79 L. Ed. 2d 220, 104 S. Ct. 984 (1984); E.E.O.C. v. County of Allegheny, 705 F.2d 679 (3d Cir. 1983); Mahoney v. Trabucco, 574 F. Supp. 955 (D. Mass. 1983), rev'd on other grounds, 738 F.2d 35 (1st Cir. 1984). Accordingly, I hold that the tenth amendment does not bar the application of the ADEA to state and local governments in this case.

 B. The BFOQ Defense

 Since section 58(1)(a) expressly discriminates against prospective appointees to municipal police departments on the basis of age, there is no question as to whether the plaintiffs have stated a prima facie case under the ADEA. Rather, the question is whether the age restriction is defensible as a BFOQ. Maki v. Commissioner of Education of State of New York, 568 F. Supp. 252, 254 (N.D.N.Y. 1983); EEOC v. County of Los Angeles, 526 F. Supp. 1135, 1138 (C.D. Cal. 1981), aff'd, 706 F.2d 1039, cert. denied, 464 U.S. 1073, 104 S. Ct. 984, 79 L. Ed. 2d 220 (1984).

 "The BFOQ is an extremely narrow exception to the general prohibition against age discrimination." Air Line Pilots Association, International v. Trans World Airlines, 713 F.2d 940, 951 (2d Cir. 1983), cert. granted, U.S. , 104 S. Ct. 1412 (1984), citing Orzel v. City of Wauwatosa Fire Dep't, 697 F.2d 743, 748 (7th Cir. 1983).To establish the BFOQ defense, the employer must meet the requirements set forth in Usery v. Tamiami Trail Tours, 531 F.2d 224 (5th Cir. 1976). *fn5" The employer must show 1) that the job qualifications are reasonably necessary to the essential operation of the business and 2) that there is a factual basis for believing that all or substantially all of the persons within the class protected by the ADEA would be unable to perform the job effectively and safely, or that it is impossible or impracticable to determine job fitness on an individualized basis. Id., at 235-36; EEOC v. County of Los Angeles, 706 F.2d at 1042-43; Orzel v. City of Wauwatosa Fire Dep't, 697 F.2d at 753; E.E.O.C. v. City of St. Paul, 671 F.2d 1162, 1166 (6th Cir. 1982).

 It is clear that the safety of others is part of the essence of police work. Many courts have stated that the presence of a safety factor reduces the level of proof necessary to establish a BFOQ. See, e.g., Orzel v. City of Wauwatosa Fire Dep't, 697 F.2d at 755; Tuohy v. Ford Motor Company, 675 F.2d 842, 845 (6th Cir. 1982); E.E.O.C. v. Santa Barbara, 666 F.2d 373, 377 (9th Cir. 1982). However, this does not relieve the defendant of its burden of establishing both elements of the BFOQ defense; it only means that establishing the defense will normally be less difficult when safety is part of the essence of the defendant's business.

 It should also be noted that third-party safety is not "essential" to all businesses in precisely the same way. In Tamiami, the Fifth Circuit noted that "[t]he greater the safety factor, measured by the likelihood of harm and the probable severity of that harm in case of an accident, the more stringent may be the job qualifications." 531 F.2d at 236.Thus, the district court in E.E.O.C. v. County of Los Angeles noted that the safety of large numbers of persons is not continually dependent upon the "moment to moment physical vitality" of a police officer. 526 F. Supp. at 1141. This was in marked contrast to the Tamiami case, which ...


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