The opinion of the court was delivered by: PARKER
MEMORANDUM DECISION AND ORDER
The plaintiff, Paul S. Dumont ("Dumont"), instituted this action against the Administrative Officer of the United States District Court for the Southern District of New York on the ground that he was denied consideration for the position of federal probation officer in violation of the Age Discrimination in Employment Act of 1967 ("the ADEA"), 29 U.S.C. §§ 621-634 (1985) and the equal protection clause of the Fourteenth Amendment, applicable against the United States through the due process clause of the Fifth Amendment. In his complaint, Dumont seeks compensatory damages, consideration for employment, back pay with interest, fees, and any other appropriate relief.
Before the Court is Defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56 or alternatively for dismissal for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). Additionally we consider Dumont's motion pursuant to Fed.R.Civ.P. 65(a) for a preliminary injunction directing defendant to consider individuals over the age of forty, including the Dumont, for the position of federal probation officer. Because the Court has considered the declarations and other documentary evidence submitted by the parties, it will treat the motion as one for summary judgment.
Plaintiff, Paul S. Dumont, has brought an action against the Administrative Officer of the United States District Court for the Southern District of New York ("the Administrative Officer"), an agent of the United States doing business in this judicial district. Pursuant to 18 U.S.C. § 3602, the District Court is responsible for the hiring of Probation Officers.
Plaintiff is suing the Administrative Officer as an agent of the District Court.
On January, 5, 1995, Dumont submitted a completed application for the position of a federal probation officer. His application revealed that he was forty-three years old. Since that time, the District Court has not processed Dumont's application.
In 1987, Congress passed the Federal Employment Retirement System ("FERS") which changed the maximum hiring age and retirement treatment for all law enforcement officers. In its definition of "law enforcement officers", FERS added a provision requiring that the duties of law enforcement officer be "sufficiently rigorous that employment opportunities are required to be limited to young and physically vigorous individuals." See 5 U.S.C. § 8401(17). Congress delegated authority to the director of the Administrative Office to determine the positions in the Judicial Branch that should be treated as law enforcement positions.
In March 1987, the Judicial Conference ("the Conference") approved a requirement that first-time candidates for the position of probation officer must not have achieved their thirty-fifth birthday at the time of the appointment. In March, 1991, the Conference raised the maximum entry age to 36. In its Committee report, the Conference explained that proper supervision of potentially dangerous criminal offenders requires "moderate to arduous physical exercise including prolonged periods of walking, standing physical dexterity and coordination necessary to operate a firearm and use of self defense tactics." The Committee further explained that on a daily basis, these officers "face unusual mental and physical stress because they are subject to danger and possible harm during frequent, direct contact with individuals who are suspected or convicted of committing federal offenses."
A. Standard For Summary Judgment
Summary judgment is proper when there is no genuine issue of material fact and, based upon facts not in dispute, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The Court's role on a motion for summary judgment is not to decide disputed issues of fact but to determine whether there is a genuine issue of fact to be tried. Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The Court must "draw all factual inferences in favor of the party against whom summary judgment is sought." Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d. Cir. 1989). The Court is to inquire whether there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for the party, Anderson v. Liberty Lobby Inc, 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and to grant summary judgment ...