49 F.3d 75 (2nd Cir. 1995), 580, Johnson v. State of N.Y.

Docket Nº:580, Docket 94-7408.
Citation:49 F.3d 75
Party Name:Warren JOHNSON, Plaintiff-Appellant, v. STATE OF NEW YORK, Mario Cuomo, in his official capacity as Governor of the State of New York, New York State Division of Military and Naval Affairs and Lawrence P. Flynn, in his official capacity as Major General of the New York State Division of Military and Naval Affairs, Defendants-Appellees.
Case Date:February 24, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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49 F.3d 75 (2nd Cir. 1995)

Warren JOHNSON, Plaintiff-Appellant,


STATE OF NEW YORK, Mario Cuomo, in his official capacity as

Governor of the State of New York, New York State Division

of Military and Naval Affairs and Lawrence P. Flynn, in his

official capacity as Major General of the New York State

Division of Military and Naval Affairs, Defendants-Appellees.

No. 580, Docket 94-7408.

United States Court of Appeals, Second Circuit

February 24, 1995

Argued Nov. 23, 1994.

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William A. Herbert, Albany, NY (Nancy E. Hoffman, General Counsel, Civil Service Employees Ass'n, Inc., Albany, NY), for plaintiff-appellant.

John McConnell, Asst. Atty. Gen., State of New York (G. Oliver Koppell, Atty. Gen. of the State of New York, Peter H. Schiff, Deputy Sol. Gen., Nancy A. Spiegel, Asst. Atty. Gen., of counsel), for defendants-appellees.

Before: JACOBS, CALABRESI and PARKER, Circuit Judges.

PARKER, Circuit Judge:

Appellant Warren Johnson was employed as a security guard by the New York State Division of Military and Naval Affairs (Division) at the Stratton Air National Guard Base in Scotia, New York, from March 1983 until his dismissal upon his 60th birthday on January 8, 1991. During his employment with the Division, he was also an enlisted member of the New York Air National Guard (ANG), a mandatory condition of employment for civilian air base security guards under Division regulations. Johnson retired from the ANG at age 60 as required by federal military regulations, resulting in his discharge from his civilian Division job.

We hold that Johnson has established a violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 et seq.


In 1976, the Division created the civilian position of air base security guard, imposing

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"dual status"--that is, concurrent active membership in the ANG--as a condition of employment for the job. Under Division regulations, any civilian employed by the Division in a job requiring dual status is subject to summary termination in the event the employee loses his or her ANG membership, no matter what the reason. State of New York Division of Military and Naval Affairs, Military Regulation No. 7 (MR-7) Sec. 6-2(h)(1)(f) (1981). Another section of MR-7, Sec. 8-3(a), refers explicitly to age as follows:

Retirement of [civilian] employees is mandatory at age seventy (70), with the exception of personnel occupying Officer Grade positions which ordinarily require membership in the Organized Militia and a concurrent reserve of the Army, Air Force or Navy status, who must retire at age sixty (60).

With limited exceptions not applicable to this case, ANG members are required by federal military regulations to separate from the ANG at age 60. Department of the Air Force, Air National Guard Regulation 39-10, Para. 3-17 (1987).

The dual status policy was modified by an agreement in 1988 between the Division and the security guards' union, the Civil Service Employees Association. The 1988 agreement provides that an employee who has lost membership in the ANG under honorable circumstances may nevertheless retain civilian employment as a security guard if the employee had ten years of continuous and concurrent service in both the ANG and the civilian post immediately prior to dismissal from the ANG. Johnson, though a long-time member of the ANG, had been employed as a base security guard for less than 8 years at the time of his retirement from the ANG, and therefore did not qualify for the modification to MR-7 contained in the 1988 agreement.

By letter dated December 20, 1990, the Division's Human Resources Director informed Johnson that he would be terminated from his civilian position on January 8, 1991. The letter stated:

This termination is a result of your loss of Air National Guard membership associated with you reaching your 60th birthday and is no reflection on your almost seven [sic] years of dedicated service to this agency.

Johnson brought suit against the appellees (collectively, the State) in May 1992, primarily alleging that his dismissal violated the ADEA. He also alleged that he was terminated from public employment without due process of law and that his dismissal violated two state laws, New York Executive Law Sec. 296 and New York Civil Service Law Sec. 72. The parties filed cross-motions for summary judgment. On March 30, 1994, the district court denied Johnson's motion, granted the State's motion, and dismissed the action.

The district court first analyzed Johnson's ADEA claim by applying the burden-shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a decision under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., which also supplies the analytical framework in appropriate ADEA cases. See Taggart v. Time Inc., 924 F.2d 43, 46 (2d Cir.1991). Assuming that Johnson had established a prima facie case of age discrimination, the district court determined that the State met its burden of producing evidence of a legitimate, nondiscriminatory reason for its action--namely, that Johnson was discharged because he could no longer maintain the requisite dual status. Dual status, in turn, was held justified by three age-neutral reasons: (1) the policy assures that security guards are fully trained in accordance with current standards of federal military practice; (2) it assures that guards are familiar with military protocol and the equipment they are assigned to protect; and (3) it assures that guards are available to accompany their unit in the event the unit is activated.

Having thus found that the State met its production burden, the district court next determined that Johnson failed to meet his burden to prove that the State's rationale was a pretext for discrimination. Indeed, it found that Johnson failed even to adduce evidence of pretext or discriminatory motive, and therefore concluded that the State was entitled to summary judgment on the ADEA claim. The court further concluded that Johnson could not establish a violation of the

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ADEA using either the "mixed motive" test, see Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), or disparate impact analysis. See Hazen Paper Co. v. Biggins, --- U.S. ----, ----, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993) (Supreme Court has not decided whether disparate impact theory of liability is available under ADEA).

The district court also granted summary judgment for the State on Johnson's claim alleging age discrimination under New York Executive Law Sec. 296, on the ground that its elements are coincident with the ADEA. The court further dismissed the federal due process claim on the ground that Johnson had no legitimate expectation of continued employment after his retirement from the ANG, and declined to reach the merits of the state Civil Service Law claim in light of the court's disposition of the ADEA claim.


The ADEA makes it "unlawful for an employer ... to discharge any individual ... because of such individual's age." 29 U.S.C. Sec. 623(a)(1). The term "employer" includes states and state agencies. 29 U.S.C. Sec. 630(b). As under Title VII of the Civil Rights Act, liability in a disparate treatment ADEA case "depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Hazen Paper, --- U.S. at ----, 113 S.Ct. at 1706. The claim "cannot succeed unless the employee's protected trait actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome." Id. Where an employment practice is facially discriminatory, the plaintiff need not prove the employer's animus or ill will toward older people. E.E.O.C. v. Borden's, Inc., 724 F.2d 1390, 1393 (9th Cir.1984), overruled on other grounds, Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158, 173, 109 S.Ct. 2854, 2864, 106 L.Ed.2d 134 (1989). 1

There is no question that the ANG itself intentionally discriminates on the basis of age. That conduct, however, is beyond the reach of the ADEA. See Frey v. State of California, 982 F.2d 399, 404 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 3000, 125 L.Ed.2d 693 (1993) (National Guard not subject to provisions of ADEA). The question presented here, rather, is whether, by adopting the ANG's mandatory age-60 retirement policy as a term of employment for certain civilian air base guards (those unaffected by the 1988 union agreement), and firing Johnson when he turned 60 as a result, the State of New York discriminated on the basis of age in violation of the ADEA. Having reviewed the summary judgment record de novo, see Taggart v. Time Inc., 924 F.2d at 45-46, we conclude that it did.

At the outset, it should be noted that there is no factual dispute about why Johnson was fired. The parties agree that Johnson was required by his employer to have dual status, that Johnson lost his membership in the ANG when and because he reached the age of 60, and that under MR-7 he thereby lost his civilian job. The State has offered no other reason for its termination of Johnson. Johnson was fired, in short, because the State incorporated the military's mandatory retirement age into the terms of employment governing civilian air base security guards.

The McDonnell Douglas framework, which guided the district court's analysis, is intended to assist the fact-finding process when the plaintiff is unable to present direct evidence of discrimination. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985). As the Supreme Court recently stated:

With the goal of "progressively ... sharpen[ing] the inquiry into the elusive factual question of intentional discrimination," Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255, n. 8, [101 S.Ct.

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