Gately v. Com. of Mass.

• Decision Date: 02 March 1993
• Docket Number: No. 92-2485,92-2485
• Citation: 2 F.3d 1221
• Parties: 62 Fair Empl.Prac.Cas. 1033, 62 Empl. Prac. Dec. P 42,508, 17 Employee Benefits Ca 1105 Daniel J. GATELY, et al., Plaintiffs, Appellees, v. COMMONWEALTH OF MASSACHUSETTS, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1221

2 F.3d 1221

62 Fair Empl.Prac.Cas. 1033,

62 Empl. Prac. Dec. P 42,508,

17 Employee Benefits Ca 1105

Daniel J. GATELY, et al., Plaintiffs, Appellees, v. COMMONWEALTH OF MASSACHUSETTS, et al., Defendants, Appellants.

No. 92-2485.

United States Court of Appeals, First Circuit.

Heard March 2, 1993.

Decided Aug. 18, 1993.

Deborah S. Steenland, Asst. Atty. Gen., with whom Scott Harshbarger, Atty. Gen. and Thomas A. Barnico, Asst. Atty. Gen., Boston, MA, were on brief for appellants.

James B. Conroy, with whom Katherine L. Parks and Donnelly, Conroy & Gelhaar, Boston, MA, were on brief for appellees.

Paul D. Ramshaw, Donald R. Livingston, Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel and Vincent J. Blackwood, Asst. Gen. Counsel, Washington, DC, on brief for the U.S.E.E.O.C., amicus curiae.

Before BOUDIN, Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

This is an appeal from a preliminary injunction issued pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 621 et seq., prohibiting defendants-appellants Commonwealth of Massachusetts, Thomas Rapone, Secretary of Public Safety, and Francis McCauley, Executive Director of the Massachusetts Retirement Board, from enforcing the statutorily mandated retirement of members of the Department of State Police aged 55 or older. For the reasons set forth below, we affirm.

I. Factual Background

In December 1991, the Massachusetts legislature enacted 1991 Mass.Acts ch. 412 (effective July 1, 1992), which called for, inter alia, the consolidation of the Commonwealth's largest police force, the Division of State Police, with its three smaller forces, the Metropolitan District Commission Police ("MDC"), the Registry of Motor Vehicles Law Enforcement Division ("Registry"), and the Capitol Police. The newly consolidated police force is referred to as the "Department of State Police." ¹

Prior to the consolidation, officers of the MDC, Registry, and Capitol Police were subject to a mandatory retirement age of 65, and officers of the Division of State Police were subject to a mandatory retirement age of 50. Section 122 of Chapter 412 repealed those mandatory retirement ages and declared that all members of the Consolidated Department who reach their fifty-fifth birthday on or before December 31, 1992, shall retire by that date.

On December 21, 1992, ten days before the effective date of the new mandatory retirement age, plaintiffs, members of the former MDC and Registry divisions, ² commenced this action seeking injunctive relief on the grounds that the new mandatory retirement age violated the ADEA. See 29 U.S.C. Sec. 623(a)(1). On December 30, 1992, after a hearing that same date, the district court issued an order granting plaintiffs' motion for preliminary injunctive relief. See Gately v. Massachusetts, 811 F.Supp. 26 (D.Mass.1992). This appeal followed.

II. The Preliminary Injunction Standard

In deciding whether to grant a preliminary injunction, a district court must weigh the following four factors: (1) the likelihood of the movant's success on the merits; (2) the potential for irreparable harm to the movant; (3) a balancing of the relevant equities, i.e., "the hardship to the nonmovant if the restrainer issues as contrasted with the hardship to the movant if interim relief is withheld," Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir.1991); and (4) the effect on the public interest of a grant or denial of the injunction. See, e.g., id. However the "sine qua non of [the preliminary injunction standard] is whether the plaintiffs are likely to succeed on the merits." Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir.1993). See also United Steelworkers of America v. Textron, Inc., 836 F.2d 6, 7 (1st Cir.1987) ("The heart of the matter is whether 'the harm caused plaintiff without the injunction, in light of the plaintiff's likelihood of eventual success on the merits, outweighs the harm the injunction will cause defendants.' ") (quoting Vargas-Figueroa v. Saldana, 826 F.2d 160, 162 (1st Cir.1987) (emphasis in original)).

A party appealing a grant of a preliminary injunction bears the heavy burden of showing that the district court either committed a mistake of law or abused its discretion. Guilbert, 934 F.2d at 5. See also K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 915 (1st Cir.1989) ("Decisions as to granting or withholding injunctive redress can best be made by trial courts steeped in the nuances of a case and mindful of the texture and scent of the evidence."). Without such a showing, we will not disturb the ruling below. Id.

Here, the district court weighed the four criteria recited above and held that the scales tipped in favor of an injunction. See Gately, 811 F.Supp. at 27-31. Although the court admitted that the evidence relative to the second, third, and fourth criteria was not markedly in either party's favor, it found that plaintiffs would likely succeed on the merits. Id. at 31. Accordingly, it issued the requested preliminary injunction.

On appeal, defendants generally challenge the court's application of all four criteria. Having reviewed the district court's opinion, however, it is clear to us that appellate elaboration is warranted only as to the first and second criteria. We therefore adopt the district court's cogent and well-reasoned opinion insofar as it relates to the other two prongs of the preliminary injunction test and focus on whether the court correctly presaged (a) plaintiffs' likelihood of success at trial, and (b) the potential for irreparable harm to plaintiffs in the absence of an injunction.

III. Discussion

A. Plaintiffs' Likelihood of Success

Under the ADEA, it is "unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual ... because of such individual's age...." 29 U.S.C. Sec. 623(a)(1). The ADEA contains an "escape clause," however, which allows employers some limited flexibility to take age into consideration in business decisions. Commonly referred to as the "BFOQ exception," the clause allows employers "to take any action otherwise prohibited under [the statute] ... where age is a bona fide occupational qualification reasonably necessary to the normal operation of a particular business...." 29 U.S.C. Sec. 623(f)(1). As noted by the Supreme Court, this clause is " 'an extremely narrow exception to the general prohibition' of age discrimination contained in the ADEA." Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 412, 105 S.Ct. 2743, 2751, 86 L.Ed.2d 321 (1985) (quoting Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 2729, 53 L.Ed.2d 786 (1977)).

In Criswell, the Court enunciated a two-pronged test for courts to use in discerning the width of the "extremely narrow" BFOQ exception. Id. at 412-20, 105 S.Ct. at 2750-55 (adopting the two-part test outlined in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 235-36 (5th Cir.1976)). Under the first prong, the employer must be able to show that the qualification at issue is "reasonably necessary to the essence of [its] business...." Criswell, 472 U.S. at 413, 105 S.Ct. at 2751 (quoting Usery, 531 F.2d at 236) (emphasis in original); EEOC v. City of East Providence, 798 F.2d 524, 528 (1st Cir.1986) (quoting Criswell ). The second prong requires that the employer justify its use of age as a proxy for that qualification. Criswell, 472 U.S. at 414, 105 S.Ct. at 2751; City of East Providence, 798 F.2d at 528. Justification can be accomplished in one of two ways. The employer can show that it " 'had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all persons over the age qualification[ ] would be unable to perform ... the duties of the job involved.' " Criswell, 472 U.S. at 414, 105 S.Ct. at 2751-52 (quoting Usery, 531 F.2d at 235) (emphasis added). Alternatively, the employer can establish that "it is 'impossible or highly impractical' to deal with the older employees on an individualized basis." Criswell, 472 U.S. at 414, 105 S.Ct. at 2752 (quoting Usery, 531 F.2d at 235).

As support for their contention that the district court erred in determining plaintiffs' likelihood of success under the ADEA, defendants make the following two arguments: (1) controlling precedent in this circuit forecloses plaintiffs' claims, see EEOC v. Trabucco, 791 F.2d 1 (1st Cir.1986) ("Trabucco II" ); Mahoney v. Trabucco, 738 F.2d 35 (1st Cir.), cert. denied, 469 U.S. 1036, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984) ("Trabucco I "); and (2) plaintiffs' claims are barred by a 1986 amendment to the ADEA. See 29 U.S.C. Sec. 623(j). We address each argument in turn.

1. Trabucco I and II

Defendants first contend that plaintiffs' challenge to chapter 412 is precluded by the doctrine of stare decisis. In so doing, they rely upon a case in which we upheld a lower court's finding that the Massachusetts State Police's statutorily mandated retirement age of 50 was a BFOQ, see Trabucco I, 738 F.2d at 37-42, and a case in which we subsequently reaffirmed Trabucco I on stare decisis principles. See Trabucco II, 791 F.2d at 2-5. Defendants' reliance upon these cases is misplaced.

The doctrine of stare decisis renders the ruling of law in a case binding in future cases before the same court or other courts owing obedience to the decision. "[U]nlike the doctrines of res judicata and collateral estoppel, [the doctrine of stare decisis ] is not narrowly confined to parties and privies, and it does not draw its force from the policy protecting final judgments." Trabucco II, 791 F.2d at 2. "Rather, when its application is deemed appropriate, the doctrine is broad in impact, reaching strangers to the earlier litigation." Id.

The essential principles of stare decisis may be described as follows:

(1) an issue of law must have been heard and decided; (2) if an issue is not argued, or...