EEOC v. State of Wyo.

• Decision Date: 22 May 1981
• Docket Number: No. C80-0336B.,C80-0336B.
• Citation: 514 F. Supp. 595
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. The STATE OF WYOMING, et al., Defendants.
• Court: U.S. District Court — District of Wyoming

514 F. Supp. 595

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. The STATE OF WYOMING, et al., Defendants.

No. C80-0336B.

United States District Court, D. Wyoming.

May 22, 1981.

Francis Leland Pico, Asst. U. S. Atty., D. Wyoming, Cheyenne, Wyo., and Lawrence D. Stone, Denver, Colo., for plaintiff.

Bruce A. Salzburg, Senior Asst. Atty. Gen., Cheyenne, Wyo., for defendants.

MEMORANDUM OPINION

BRIMMER, District Judge.

The Equal Employment Opportunity Commission, as an agency of the United States (herein "EEOC"), sued the State of Wyoming, its Governor, and the members and directors of the Wyoming Game and Fish Commission, both as individuals and in their official capacities, the Director of the State of Wyoming Game and Fish Department, as an individual and officially, and the State of Wyoming Retirement System, on behalf of Bill Crump and others similarly situated, as a result of Crump's mandatory retirement at the age of fifty-five (55) years from his position of District Game Division Supervisor of the Wyoming Game and Fish Department. Its complaint alleges willful engagement by each of the Defendants in unlawful employment practices in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. (herein referred to as "ADEA"), in that (a) Wyoming Statute § 31-3-107, entitled the Wyoming State Highway Patrol and Fish Retirement Act, invalidly and contrary to ADEA permits mandatory retirement of a game warden at 55 years, (b) Crump was mandatorily retired at age 55, and (c) the policy of retiring game wardens at age 55 and other employees at age 65 is discriminatory and adversely affects numerous employees of the Wyoming Game and Fish Department. The Defendants moved to dismiss the complaint for failure to state a claim because: (1) ADEA cannot apply to a State's system for retirement of law enforcement personnel under the Tenth Amendment to the United States Constitution, citing National League of Cities v. Usery, 426 U.S. 833, 49 L.Ed.2d 245, 96 S.Ct. 2465 (1976); and (2) ADEA, even if passed under the Fourteenth Amendment, cannot apply here where there is no impermissible violation of that amendment's equal protection provisions.

The EEOC's prayer asked for injunctive and declaratory relief, and for reinstatement of Crump and sought "appropriate back wages and an equal sum as liquidated damages, in amounts to be proved at trial, to persons adversely affected by the unlawful employment practices ... including Bill Crump and others similarly situated." No certification of the suit as a class action has yet been asked.

The naming of the Defendants in their individual capacities as well as officially disturbs the Court. EEOC has sued 9 citizens of this State as individuals for damages. It used the barest notice pleading, alleging only willful engagement by each of the Defendants in "unlawful employment practices." It affronts this Court's sense of justice and fair play that a federal agency should attack as individuals, the Governor of Wyoming, and the Wyoming citizens who serve this State in a public-spirited capacity without pay as State Game and Fish Commission members, and attempt to extract an unspecified amount of damages from them without so much as a single specific allegation, statement or showing that they as individuals have acted with malice, or in bad faith, or have in some way abused their offices so as to subject them to individual liability. The Defendants, as Governor, Director, and Commission members, are entitled to a qualified privilege or immunity from suit as individuals. Smith v. Losee, 485 F.2d 334 (10th Cir., 1973). The EEOC complaint clearly has failed to state a cause of action against the Defendants as individuals. "The task of protecting the individual against the aggressions of government," as Prof. Archibald Cox has termed it,¹ falls to this Court and the Court therefore dismisses this action, sua sponte, against the Defendants as individuals.

The claims against the Defendants in their official capacity are in fact claims against the State of Wyoming. Williams v. Eaton, 443 F.2d 422, 428 (10th Cir., 1971), Smyth v. Ames, 169 U.S. 466, 518, 18 S.Ct. 418, 422, 42 L.Ed. 819, and the Defendants will hereafter be referred to collectively as the State of Wyoming or the State. In defense of this action the State contends that EEOC's claims against the State are based on an Act of Congress (the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.) passed under the Commerce Clause power of Congress, and are therefore an impermissible interference under the Tenth Amendment with the State of Wyoming under the authority of National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). EEOC in reply contends that National League of Cities v. Usery, supra, merely struck down the minimum wage and overtime provisions of the Fair Labor Standards Act and did not affect the ADEA. It urges also that the extension of ADEA to State employees was a valid exercise of Congressional power under the Commerce Clause because the State's ability to establish age 55 for retirement of some of its employees in law enforcement work is not an attribute of its sovereignty, and finally that the Fourteenth Amendment provides a source of Congressional power supporting ADEA's application to the States.

A basic inconsistency in the United States' position is unusually striking. In the very recent case of Thomas v. U. S. Postal Inspection Service, 647 F.2d 1035 (10th Cir. 1981) the Court of Appeals confirmed that the Postal Service, ADEA notwithstanding, could fix minimum and maximum ages within which law enforcement officers may be employed. It relied upon the case of Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979) which held that a requirement of retirement of Foreign Service personnel at age 60 was not violative of Fifth Amendment equal protection. Judge Pickett in Thomas, supra, also pointed out that, "In 1974, Congress, recognizing the hazardous nature of the work of law-enforcement officers and others, amended the retirement provisions relating to such employment. P.L. 93-350, 1 U.S. Cong. & Adm.News 1974, 395. This Act requires retirement at the age of fifty-five years. 5 U.S.C. § 8335(b)." Thus, the United States Postal Service, the United States Foreign Service, as well as its law enforcement agencies ignore the provisions of ADEA, but the United States, through its EEOC, won't allow the law enforcement agencies of one of its sovereign States also to be immune from ADEA. In one breath Congress in 1974 required federal law enforcement men to retire at 55 years, but in a second breath Congress in 1974 extended ADEA coverage to the States; thus, the United States tells the State and its law enforcement agencies to do as the United States says, but not as it does.

The Supreme Court in Massachusetts Board of Retirement et al. v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), has held that a Massachusetts statute mandating retirement of a state police officer at 50 years rationally furthered its purpose of assuring the physical fitness of its state police officers. It said,

"This Court's decisions give no support to the proposition that a right of governmental employment per se is fundamental... Accordingly, we have expressly stated that a standard less than strict scrutiny `has consistently been applied to state legislation restricting the availability of employment opportunities' ..."

The Court went on to hold that "... the Massachusetts statute clearly meets the requirements of the Equal Protection Clause." This Court assumes that the Wyoming statutes in question would similarly withstand challenge on Equal Protection grounds. Applicability of ADEA was not considered in Murgia, supra.

The Wyoming State Highway Patrol and Game and Fish Warden Retirement Act, § 31-3-101, W.S. 1977, et seq., allows retirement of fulltime law enforcement officers of the Wyoming State Game and Fish Department and Wyoming Highway Patrolmen at age 55 and requires retirement at age 65. § 31-3-107(c) and (d), W.S., 1977. Wyoming Game and Fish wardens are law enforcement officers, § 9-3-1901(a)(vii) and § 7-2-101, W.S.1977, and are authorized to make arrests and enforce criminal violations of Wyoming game and fish laws. § 23-6-101, W.S., 1977. The State's answers to interrogatories filed herein show that the Wyoming Game and Fish Commission on November 3, 1977 adopted a policy of mandatory retirement at age 55, unless the employee served in an administrative function. The Table of Organization of the Game Division of the State Game and Fish Department shows 7 district supervisors, each in direct charge of the game wardens under them. The Court must conclude that Mr. Crump is a law enforcement officer of the State of Wyoming, and not a mere administrative employee.

That the Supreme Court's holding in National League of Cities v. Usery, supra, is not narrowly limited to the minimum wage and hour provision of the Fair Labor Standards Act (FLSA), which it struck down, is readily apparent. A thoughtful reading of the case as well as the furor in academic circles created by the decision discloses that. Surely a case first attacked by Justice Brennan in his vigorous dissent as "an abstraction without substance" (426 U.S. at 860, 96 S.Ct. at 2478), then characterized as a "vestigal expression of states' rights philosophy,"² and as "the tip of the tenth amendment iceberg" by another,³ and "ominous" and "outrageous" by yet another,⁴ and as "a retreat from the vigorous defense of liberty and equality" by Professor Tribe of Harvard,⁵ has greater impact than a ban on Congressional interference with wages and hours of State employees working in traditional State activities. The decision's language and argument are cast in broader terms.

In National League of Cities v. Usery, supra, Justice Rehnquist, writing for a five to four...