Aaron v. Davis

• Decision Date: 28 May 1976
• Docket Number: No. LR-76-C-16.,LR-76-C-16.
• Citation: 414 F. Supp. 453
• Parties: A. Clay AARON, Jr. and Fletcher A. Wynn, Plaintiffs, v. Chief Jack DAVIS et al., Defendants, v. John J. UEKMAN, and International Association of Firefighters, Local 34, Intervenors.
• Court: U.S. District Court — Eastern District of Arkansas

414 F. Supp. 453

A. Clay AARON, Jr. and Fletcher A. Wynn, Plaintiffs, v. Chief Jack DAVIS et al., Defendants, v. John J. UEKMAN, and International Association of Firefighters, Local 34, Intervenors.

No. LR-76-C-16.

United States District Court, E. D. Arkansas, W. D.

May 28, 1976.

COPYRIGHT MATERIAL OMITTED

Philip K. Lyon, J. Bruce Cross, House, Holmes & Jewell, Little Rock, Ark., for plaintiffs.

Joseph C. Kemp, Kemp & Henry, Little Rock, Ark., for defendants.

Philip E. Kaplan, Walker, Kaplan & Mays, Little Rock, Ark., for intervenors.

MEMORANDUM

EISELE, Chief Judge.

On December 17, 1975, Chief Jack Davis sent separate letters to Assistant Fire Chief A. Clay Aaron, Jr., and District Chief Fletcher A. Wynn advising them that their services with the Little Rock Fire Department would be terminated effective January 16, 1976. He indicated that the notification was being issued pursuant to the requirements of Section 13-11 of the Ordinances of the City of Little Rock. That section, which was enacted on June 2, 1958, provides:

"Retirement from active employment for all members, including department heads, of the fire department, shall be mandatory upon attaining the age of sixty-two years; provided, however, such retirement shall not be mandatory for members now employed by the fire department until such time as such employee, by reason of length of service, is eligible for retirement. (Ord. No. 10804, § 1, 6-2-58)."

On September 21, 1970, another ordinance, Section 34-7, was enacted which provides:

"(a) No employee of the city, either uniformed or nonuniformed, shall be entitled to continue in such employment beyond his or her sixty-fifth (65th) birthday. Provided, however, the city manager may, where the need for the particular services of a given employee is critical to the city, grant an extension for continued employment for as much as one year at a time but in no case shall such employee be allowed full-time employment beyond his or her seventieth (70th) birthday. Provided further, in no instance shall retirement benefits as provided by section 2-24 of the Code of Ordinances accrue to an employee based on disability occurring past his or her sixty-fifth (65th) birthday."

As interpreted and applied by the City, Section 34-7 covers all employees of the City of Little Rock except members of the fire department. Policemen may, therefore, continue in employment to age 65 and even beyond, if extensions are granted, but members of the fire department may not continue active employment beyond age 62.

Apparently prior to 1958 there was no mandatory retirement ordinance affecting city employees. Furthermore, the chief of the fire department assumed that the 1970 ordinance, Section 34-7 superseded the 1958 ordinance, Section 13-11, and, therefore, from 1970 until December 17, 1975, he administered the firemen's retirement program on the assumption that the personnel of that department could continue to work until age 65. On December 17, 1975, however, he was advised by the personnel department that the legal staff was of the opinion that Section 13-11 controlled as far as employees of the fire department were concerned. Both Assistant Fire Chief Aaron and District Chief Wynn had attained the age of 62 prior to January 16, 1976.

By their amended complaint filed herein, the plaintiffs seek actual and punitive damages, reinstatement with back pay, and injunctive and equitable relief on the basis of: (1) 29 U.S.C. § 621, et seq., the "Age Discrimination Act of 1967" as amended; (2) 42 U.S.C. § 1983; and (3) the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution. They contend, inter alia, that ordinance Section 13-11 is in direct conflict with the Age Discrimination Act of 1967 as amended; violates the provisions of 42 U.S.C. § 1983; and constitutes a denial of due process and equal protection. Their amended complaint alleges that the mandatory retirement age of 62 for firemen has no rational basis and that the attempted separate classification of firemen for retirement purposes is irrational, arbitrary, capricious, and wholly lacking any justifiable business necessity. With respect to their equal protection arguments, plaintiffs particularly emphasize that there is no basis in fact for treating the retirement of policemen differently from that for firemen.

The defendants are Chief Jack Davis, head of the Little Rock Fire Department, and the individual members of the City Board of Directors for the City of Little Rock.

At a preliminary hearing on plaintiffs' application for relief pendente lite, Mr. John J. Uekman, a member of the Little Rock Fire Department and the president of Local 34 of the International Association of Firefighters, and the Association itself, asked leave to intervene, pointing out that Local 34 is a labor organization which represents the employees of the Little Rock Fire Department in negotiations with the City of Little Rock concerning terms and conditions of employment and that such local has a substantial historic and continuing interest in city ordinances which affect the health, safety and welfare of its members. The motion to intervene alleges that Section 13-11 of the Code of Ordinances, which is under attack by plaintiffs, "is in the best interests of the members of I.A.F. Local 34 and its enactment and enforcement was and is supported by I.A.F. Local 34." The motion to intervene was granted.

By further amendment to their complaint filed March 23, 1976, plaintiffs alleged that they had discharged the jurisdictional requirements under the Age Discrimination Act and had received a "right to sue" notification letter from the Department of Labor. A copy of the letter was attached to the amendment.

The case was tried to the court on May 3 and 4, 1976.

Findings of Fact

Assistant Fire Chief A. Clay Aaron, Jr., was born on December 1, 1913. He has been a member of the Little Rock Fire Department for almost 36 years. He progressed through the ranks from hoseman, assistant mechanic, driver, captain, district chief, to assistant fire chief. As assistant chief he was the second in command in the department. District Chief Fletcher A. Wynn was born February 8, 1913. He has been an employee of the department for approximately 34 years, and he, too, progressed through the ranks from hoseman, driver, captain, to district chief.

As assistant fire chief, Mr. Aaron's duties are primarily of a supervisory nature. He worked what was "supposed to be" a 40-hour week. Routinely he would arrive at his office around 6:45 a.m. For the next 45 minutes to an hour he would relieve the district chiefs and make any "runs" for them that might be required during that time period. Then he would work in his office checking the daily work rosters, seeking replacements for personnel who were ill, and attending to equipment repair notices. He would also check the alarm office and review the daily "runs". He would occasionally visit stations and attend to building repair problems. He would confer regularly with Chief Davis.

There is somewhat of a tradition within the fire department that all personnel from top to bottom actively participate in the fire fight when required by an appropriate alarm to be at the fire site. Although there is some substance to the notion, still it is quite clear that the duties and responsibilities of those in the higher ranks differ materially from those of lower echelon personnel. Assistant Fire Chief Aaron, for instance, would make most "second alarm" fires and also fires of a certain category, such as those at hospitals and nursing homes. During the course of a typical week, he would average two or three "runs". And, when at a fire, all personnel, from the lowest to the highest, do not perform essentially the same duties. As one might suspect, the highest officer at the scene is generally in charge. His main function is to coordinate the effective and efficient use of personnel and equipment at the scene. It is, however, quite true that all personnel of the Little Rock Fire Department from the chief on down make it a practice to actively participate in the fire fight, alongside other personnel, when their supervisory duties permit. As assistant fire chief, Mr. Aaron went into many fires although not required to do so by virtue of his status and rank.

From all the evidence it is clear that Mr. Aaron's duties and responsibilities as assistant fire chief were primarily in the areas of supervision, discipline, communication and training, together with personnel and equipment evaluation and coordination.

At the time of his forced "retirement" Assistant Fire Chief Aaron was earning $1,521.00 per month. His pension would amount to $810.50 per month.

Mr. Aaron considers himself to be in the best of physical condition. He states that he has just recently had a physical examination which verifies that opinion. The Court finds that he is, indeed, in good physical condition. There is nothing in the record to indicate that he is in any way unable to continue to fully and capably discharge the duties of assistant fire chief if permitted to do so.

The fire department has divided the city of Little Rock into four districts. District Chief Fletcher Wynn, one of the plaintiffs, was in charge of one of the four districts. As such, he had several companies and stations under his command. District Chief Wynn would work 24 hours, then be off 48 hours, although, like other personnel, he was "on call" for emergency situations at all times. His duties were principally of a supervisory nature. On arriving at the station he would check the rosters and report to the assistant chief. He also would check for mechanical troubles and report repair and fuel requirements. It was his practice to "run" all general alarm fires within his district and also most "second alarm" fires. He would usually average five alarms during his 24-hour period. When at the...