E.E.O.C. v. City of Janesville

• Citation: 630 F.2d 1254
• Decision Date: 23 September 1980
• Docket Number: No. 79-2523,79-2523
• Parties: 24 Fair Empl.Prac.Cas. 1294, 24 Empl. Prac. Dec. P 31,252 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. CITY OF JANESVILLE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1254

630 F.2d 1254

24 Fair Empl.Prac.Cas. 1294,

24 Empl. Prac. Dec. P 31,252

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. CITY OF JANESVILLE, Defendant-Appellant.

No. 79-2523.

United States Court of Appeals, Seventh Circuit.

Argued June 10, 1980.

Decided Sept. 23, 1980.

David Uelmen, Milwaukee, Wis., for defendant-appellant.

Justine Lisser, E.E.O.C., Washington, D.C., for plaintiff-appellee.

Before CUMMINGS and BAUER, Circuit Judges, and CROWLEY, District Judge. ^*

BAUER, Circuit Judge.

This is an appeal by the City of Janesville, Wisconsin from a preliminary injunction entered by the district court, 480 F.Supp. 1375, which requires the City to reinstate Kenneth Jones to his position as Chief of Police pending a decision on the merits of his claim, presented here by the Equal Employment Opportunity Commission (EEOC), that the City's policy of mandatory retirement for all "protective service" employees at the age of fifty-five violates the Age Discrimination in Employment Act (ADEA), as amended, 29 U.S.C. § 621 et seq. Our jurisdiction is founded on 28 U.S.C. § 1292. The City raises three issues for review on appeal: (1) whether the ADEA, as made applicable to the states and their political subdivisions under the 1974 amendments, constitutes an impermissible intrusion into the affairs of the City of Janesville in derogation of the Tenth Amendment; (2) whether the City of Janesville is exempt from the coverage of the ADEA by the establishment of a bona fide occupational qualification for the position of Chief of Police as permitted by section 4(f) of the ADEA, 29 U.S.C. § 623(f); and (3) whether, under the circumstances in this case, the district court abused its discretion in granting interlocutory injunctive relief requiring the City to reinstate Jones to his position as Chief of Police. We hold that the issuance of a preliminary injunction was an improvident exercise of judicial discretion and accordingly reverse the order appealed from for the reasons set forth below.

I

The facts material to the disposition of this appeal are not in dispute. Kenneth Jones commenced his employment as police officer with the City of Janesville on October 24, 1948 and was appointed Chief of Police effective January 2, 1975. He served continuously in that position until his discharge on June 30, 1979, nine days after he reached the age of fifty-five.

Jones was discharged pursuant to the City's policy to compulsorily retire all employees in protective service occupations at the end of the calendar quarter in which they reach age fifty-five. The City permits one year extensions where compulsory retirement would create a hardship for an employee that could be alleviated within one year or where a one year extension would help resolve management problems for the City. See Administrative Policy Statement of February 24, 1977 (App. at 2). The City fashioned its retirement policy under the terms of the Wisconsin Retirement Fund (WRF) which, pursuant to state statute, sets age fifty-five as the normal retirement age for all "protective service officers" who participate in the WRF, regardless of the actual job performed. Wis.Stats., ch. 41.02(11)(a)-(bb). As a participant in the WRF, the City pays the total cost of the retirement program for its police personnel and its contribution in this case amounts to approximately twenty-five percent of Jones's annual salary. Prior to his scheduled retirement, Jones sought an indefinite extension of his retirement date, but his request was denied by the City's Board of Police & Fire Commissioners. Jones was retired on June 30, 1979 and full retirement benefits were paid by the WRF. The City then conducted a nationwide search to fill the vacancy created by Jones's retirement and selected an applicant from Saginaw, Michigan as his replacement.

Jones challenged his discharge in a suit brought under the ADEA, the Civil Rights Act, and the Fifth and Fourteenth Amendments. The EEOC then filed suit against the City to enforce Jones's rights under the ADEA. ¹ On October 19, 1979 the district court entered a temporary restraining order barring the appointment of Jones's successor who had been employed as acting Chief of Police, in order to preserve complete relief should Jones prevail. On December 13, 1979, the district court entered a preliminary injunction mandating Jones's reinstatement pending a full determination on the merits of his complaint.

The district court found that the EEOC had made out a prima facie case of discrimination under the ADEA since the sole basis for the City's decision to retire Jones was the fact that he had reached the mandatory retirement age. The court issued the preliminary injunction because it concluded that the EEOC had a reasonable likelihood of prevailing on the merits. In so ruling, the court stated that the issue was whether the City could show that age less than fifty-five is a bona fide occupational qualification (BFOQ) for the performance of Jones's duties as police chief, rather than for the performance of other, more typical, police duties, such as those of a patrolman. In finding that it was reasonably likely that the City could not establish a BFOQ for the position of police chief, the court rejected the City's argument that its mandatory retirement policy was based on what it regarded as the state legislature's judgment embodied in the WRF that the compulsory retirement of protective service employees at age fifty-five, regardless of position, is in the best interest of all public safety personnel and the people they are required to serve throughout the state.

The City subsequently moved for reconsideration and a stay of the preliminary injunction order, and in reliance on National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), asserted that the ADEA is unconstitutional as applied to local governments under the Tenth Amendment. The district court denied the motion on December 20, 1979. The court found National League of Cities to be inapposite and held that:

Particularly as to legislation directed to age discrimination in employment, as distinguished from legislation compelling municipalities to pay certain minimum wages and to observe certain maximum hours for all employees, the presumption of constitutionality is sufficiently strong to support interlocutory injunctive relief.

From the order of the district court granting the preliminary injunction, the City of Janesville has appealed to this Court. ²

II

Appellate review of a preliminary injunction order is limited to the determination of whether the district court abused its discretion in deciding that the circumstances of the case justified injunctive relief. Doran v. Salem Inn, Inc., 422 U.S. 922, 931-932, 95 S.Ct. 2561, 2567-2568, 45 L.Ed.2d 648 (1975); Kolz v. Board of Ed. of City of Chicago, 576 F.2d 747, 748 (7th Cir. 1978). We conclude that the circumstances in this case did not warrant injunctive relief and accordingly hold that the entry of the preliminary injunction constituted an abuse of judicial discretion.

The standard for granting a preliminary injunction requires the plaintiff to show that he is likely to prevail on the merits and that in the absence of its issuance he will suffer irreparable injury. Doran, supra, 422 U.S. at 931, 95 S.Ct. at 2567. In this case, the district court found that the EEOC had established a prima facie case of age discrimination under the ADEA since Jones had been discharged from employment solely on the basis of his age, in violation of Section 623(a) of the Act. ³ Although the court conceded that it is relatively simple for the plaintiff to make a prima facie showing of discrimination, it noted that the plaintiff's likelihood of ultimate success depended on whether the City could avail itself of the exemption provided in Section 623(f) of the ADEA permitting age-based discriminatory discharges where "age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." 29 U.S.C. § 623(f)(1). The court concluded that the plaintiff had a reasonable likelihood of sustaining its prima facie case in a trial on the merits because the City had failed to show by its evidence a BFOQ for the position of police chief. It is this conclusion with which we take exception.

It is true, as the district court properly observed, that an exemption to a remedial statute must be narrowly construed, but in our judgment, especially in the context of a preliminary injunction proceeding, the district court's construction of the exemption provided in Section 623(f)(1) of the ADEA is excessively narrow. In construing the statutory language "bona fide occupational qualification reasonably necessary to the normal operation of a particular business," the court ascribed to the term "particular business" a meaning synonymous with the term "particular occupation," namely, the position of police chief. Although our examination of the legislative history of the ADEA yields no support for such a construction, we find resort to the legislative history unnecessary since the plain meaning of the term "particular business" is not susceptible to interpretation. That a particular occupation may by definition be...