E.E.O.C. v. Trabucco, 85-1997

• Decision Date: 14 May 1986
• Docket Number: No. 85-1997,85-1997
• Citation: 791 F.2d 1
• Parties: 40 Fair Empl.Prac.Cas. 1718, 40 Empl. Prac. Dec. P 36,222 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Appellant, v. Frank J. TRABUCCO, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1

791 F.2d 1

40 Fair Empl.Prac.Cas. 1718,

40 Empl. Prac. Dec. P 36,222

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Appellant, v. Frank J. TRABUCCO, et al., Defendants, Appellees.

No. 85-1997.

United States Court of Appeals First Circuit.

Argued April 11, 1986.

Decided May 14, 1986.

Stephen P. O'Rourke with whom Johnny J. Butler, General Counsel (Acting), Gwendolyn Young Reams, Associate General Counsel (Acting), and Vincent Blackwood, Asst. Gen. Counsel, Washington, D.C., were on brief, for plaintiff, appellant.

H. Reed Witherby, Asst. Atty. Gen., Government Bureau, with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for defendants, appellees.

Before CAMPBELL, Chief Judge, ALDRICH and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

The question on this appeal is whether the principle of stare decisis forecloses redetermination of an issue raised, considered, and decided in a prior case where the presentation of evidence has been "one-sided", with no proffer of rebuttal expert testimony. Our answer is that stare decisis still applies and, on this record, forecloses redetermination.

This case, brought by the Equal Employment Opportunity Commission (EEOC) against the Commonwealth of Massachusetts, its Commissioner of Public Safety and its Board of Retirement, challenges the Massachusetts statutory mandatory retirement age of 50 for all members of the uniformed branch of the state police, Mass.Gen.Laws Ann. ch. 32, Sec. 26(3)(a) (West 1966 & Supp.1985), as not being "a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of [the branch's] business." Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 623(f)(1).

The action was instituted on January 19, 1984, following a district court decision in Mahoney v. Trabucco, 574 F.Supp. 955 (D.Mass.1983), and before our reversal, on July 2, 1984, of that decision, Mahoney v. Trabucco, 738 F.2d 35 (1st Cir.1984). In Mahoney, an officer of the state police who held a desk job as a telecommunications specialist challenged the general mandatory retirement provision and sought injunctive relief from enforcement of the retirement requirement as applied to him. The district court held that age 50 was a BFOQ for most state troopers, but that the Commonwealth had failed to prove that age 50 was a BFOQ for the particular desk job held by officer Mahoney. Mahoney, 574 F.Supp. at 960-63. We reversed, holding that all state troopers should be treated as one occupation. Mahoney, 738 F.2d at 38-39. We left in place the district court's holding that age 50 was a BFOQ for that occupation. Id. at 37.

The defendants in the case at bar moved for, and the district court granted, summary judgment on the ground that Mahoney controlled under the doctrine of stare decisis. EEOC contended that there was a triable issue of material fact because additional "more weighty opinion of the medical community" could be proferred in opposition to the court's decision in Mahoney.

Stare decisis, unlike the doctrines of res judicata and collateral estoppel, is not narrowly confined to parties and privies, and it does not draw its force from the policy protecting final judgments. Rather, when its application is deemed appropriate, the doctrine is broad in impact, reaching strangers to the earlier litigation. Further, it leaves some room for judgment as to its preclusive power, and it stems from the principles of stability and equal treatment underlying the orderly development of legal doctrine. 1B Moore's Federal Practice p 0.401, at 3; p 0.402, at 27.

The starting point for analysis is to determine, to use contemporary nomenclature, the data base. The principal evidence of what has been decided is a court's written opinion. 1B Moore's Federal Practice p 0.402, at 33. Referring to his own Court, Justice Stewart once observed, "... I would have thought that except in rare instances an analysis of the positions taken by the parties in briefs submitted to this Court should play no role in interpreting its written opinions. [Footnote omitted.] A contrary rule would permit the 'plain meaning' of our decisions to be qualified or even overridden by their 'legislative history'--i.e., briefs submitted by the contending parties." Cantor v. Detroit Edison Co., 428 U.S. 579, 617-618, 96 S.Ct. 3110, 3130-3132, 49 L.Ed.2d 1141 (Stewart, J., dissenting). Although, as the Court's opinion illustrated, id. at 588-589, 96 S.Ct. at 3116-3117, briefs of parties are sometimes resorted to, our primary resources in helping us decide whether the Mahoney decision should constitute a sufficient basis for summary judgment are the opinions of the district court and of our own court in that case.

The district court began by characterizing the case as a challenge to the age 50 retirement requirement for "all members" of the uniformed state police. 574 F.Supp. at 956. It then noted that the central issue was the adequacy of the Commonwealth's BFOQ defense, since there was "no doubt that the statutory mandatory retirement age constitutes a prima facie violation of the ADEA." Id. at 957. Continuing, the court noted, "[t]he Commonwealth asserts, and sought to prove at trial, that age is a BFOQ for members of the uniformed branch of the Massachusetts State Police." Id.

The court then proceeded to apply the approach of Usery v. Tamiami Tours, Inc., 531 F.2d 224, 235-36 (5th Cir.1976). It found first, that the mandatory age requirement was reasonably related to the essential operation of the Massachusetts State Police. Id. at 958. It then pursued the second part of BFOQ analysis: the inquiry into whether the employer has shown either that all or most employees above 50 would be unable to perform the duties of the job or that deciding fitness in each individual case would be impracticable. In this inquiry, the court first raised a preliminary question, "[h]ow should the 'duties of the plaintiff's job' be defined?" Id. In considering the Commonwealth's argument that the determination of age as a valid BFOQ should be made for all members of the uniformed branch of the state police, the court summarized the exigent demands confronted by the majority of the police assigned to normal duty. It noted the testimony of the Commonwealth's two medical experts concerning diminished aerobic capacity and increased incidence of coronary artery disease of individuals over 50 years of age, and the impracticability of making individual determinations of an officer's fitness after reaching that age. Id. at 959-60. The court concluded this review of the Commonwealth's position by observing that plaintiff had offered no rebuttal medical evidence and stated: "Thus, were I to rule that the duties of the job at issue in this case are the duties of a member of the uniformed branch, generally, rather than the duties that the plaintiff actually performs, I would conclude that the Commonwealth had met its burden of proof on the BFOQ defense." Id. at 960.

The court went on, however, to follow the approach of E.E.O.C. v. City of St. Paul, 671 F.2d 1162 (8th Cir.1982), holding that its assessment of the validity of the age BFOQ should be made in reference to the specific duties of plaintiff Mahoney as a desk officer. Accordingly, notwithstanding the possibility that plaintiff could be reassigned to more arduous duties or called out in an emergency, the court ruled that the Commonwealth had failed to prove the BFOQ defense. Id. at 962.

In our review of the district court's decision, we noted that the court had concluded that all the prongs of the Tamiami test "had been met for members of the uniformed state police 'generally.' " Mahoney, 738 F.2d at 37. We then addressed the court's "particularistic case-by-case analysis", remarking on a number of vexing practical and policy implications of such an approach, id. at 38, and inquired whether discernible Congressional intent ran counter to an across-the-board BFOQ for a class such as the uniformed branch of the state police. Our answer was that it did not. Id. at 39-41. We concluded our analysis by taking a position between one that would recognize no occupational specialty within a "particular business" and one that would "atomize the general concept of 'occupation.' " Id. at 39. We chose to recognize as an occupation, meriting its own set of qualifications, a job that involved "more of a recognized and discrete vocation rather than a desk assignment for an employee subject to all the obligations and benefits of a quasi-military organization." Id. at 39. We therefore reversed the judgment below.

The effect of our decision was to deny relief to plaintiff Mahoney. A necessary rationale of the decision was that Mahoney had not succeeded in establishing that the across-the-board BFOQ was invalid.

In the instant case the EEOC has argued at various times that stare decisis should not foreclose its...