Armstrong v. Howell

• Decision Date: 07 February 1974
• Docket Number: Civ. No. 72-0-510.
• Citation: 371 F. Supp. 48
• Parties: Loretta ARMSTRONG, Plaintiff, v. Samuel HOWELL et al., Defendants.
• Court: U.S. District Court — District of Nebraska

371 F. Supp. 48

Loretta ARMSTRONG, Plaintiff, v. Samuel HOWELL et al., Defendants.

Civ. No. 72-0-510.

United States District Court, D. Nebraska.

February 7, 1974.

Legal Aid Society of Omaha, Vard R. Johnson and Terrence J. Ferguson, Omaha, Neb., for plaintiff.

Douglas County Atty.'s Office, Donald Knowles and Arthur Raznick, Omaha, Neb., for defendants.

MEMORANDUM OPINION

SCHATZ, District Judge.

This matter comes on for determination on cross-motions for summary judgments filed respectively by both plaintiff and defendants, the case having been fully and finally submitted to this Court on January 11, 1974, on a stipulation of facts as contained in the pretrial order, and elsewhere, and on briefs and oral arguments of the respective parties and without formal hearing.

In her complaint filed herein, plaintiff seeks to have this Court declare invalid and enjoin enforcement of the retirement policies of the Douglas County Civil Service Commission insofar as it imposes a mandatory retirement at age sixty-five years. This policy is challenged by plaintiff on the grounds that it is in conflict with the provisions contained in the Fourteenth Amendment of the Constitution of the United States.

Defendants answer by way of a general denial and expressly deny that plaintiff's Fourteenth Amendment rights are violated by the Douglas County Civil Service Commission.^*

Jurisdiction is conferred by 28 U.S.C. § 1343(3), (4) which provides for original jurisdiction of this Court in all suits commenced under and authorized by 42 U.S.C. § 1983 to redress the deprivation under color of state law of any right, privilege or immunity secured by the Constitution of the United States.

The sole issue for determination here is whether the conduct of the defendants deprived plaintiff of rights guaranteed her by the due process and equal protection clauses of the Fourteenth Amendment of the Constitution of the United States and whether upon a finding of unconstitutional deprivation, plaintiff should have injunctive relief and retroactive lost wages. Since the Court has concluded that plaintiff has not been deprived of rights guaranteed her under the Fourteenth Amendment to the Constitution of the United States and that the policy challenged by plaintiff is not in conflict with any provision contained in the Fourteenth Amendment, it is unnecessary to discuss plaintiff's claim for injunctive relief and lost wages. With her original complaint filed herein plaintiff also filed a motion for a temporary restraining order which was overruled by this Court (Judge Robert V. Denney).

As far as material to a decision in this case, the Court finds the facts to be as follows:

Prior to December 31, 1972, plaintiff was an employee of the Douglas County Hospital, having commenced such employment on April 26, 1969, at which time the plaintiff was sixty-six years of age. Plaintiff was employed as a medical records transcriber and worked continuously and efficiently as such until her termination on December 31, 1972, at which time the plaintiff was sixty-nine years of age. Plaintiff customarily worked an average of thirty hours per week and there is no controversy over the fact that at the time of her mandatory retirement and termination on December 31, 1972, plaintiff was an employee in good standing, was highly respected by her supervisors, was fully capable of performing the duties connected with her job and was, in fact, capably performing those duties and physically and mentally able to perform her duties as of the date of her termination.

Effective May 21, 1971, the Legislature of the State of Nebraska adopted a Civil Service System Act which provided for the establishment of a Civil Service Commission in any Nebraska County having a population of 300,000 inhabitants or more (Sections 23-2501-23-2516, inclusive, R.R.S.Neb.1943, 1972 Cum.Supp.). The stated legislative purpose of the Civil Service System Act was to guarantee to all citizens a fair and equal opportunity for employment in the County offices governed by the Act, to establish conditions of employment, and to promote economy and efficiency in such offices. Excluded specifically by the terms of the Civil Service Act were part-time employees, employees subject to the State Personnel Office Act, court-appointed employees, employees of the County Attorney's office, or dentists, physicians, practicing attorneys, deputy sheriffs, officers appointed by the Governor, elected officers or the chief deputy of each office or the deputy of each office if there is not more than one deputy in the office. A part-time employee was defined as any person whose position was seasonal or temporary as defined by the Commission.

Among other things, the Civil Service Act allowed the formation of a Civil Service Commission established pursuant to the act to prescribe, through its commissioners, general employment policies and procedures and regulations governing such matters as hours of work, promotions, transfers, demotions, probation, termination and reduction in force (See Section 23-2507, R.R.S.Neb. supra).

Thereafter, pursuant to the Civil Service Act, Douglas County established a Civil Service Commission which was subsequent to the time that the plaintiff was initially employed by Douglas County. The commissioners of the Douglas County Civil Service Commission, supra, adopted and promulgated written statements of policy and regulations governing Douglas County employment and Douglas County employees who were covered by the Civil Service Act, which statements of policy and regulations provided, among other things, that:

(a) Effective January 1, 1972, Douglas County shall adopt a mandatory retirement at age 65 for all employees covered under Legislative Bill 921. However, in the interest of acclimating those employees presently on the payroll to this retirement policy, and in order to effect an orderly transition to the retirement program, the following schedule shall apply

                Employees Born On   To Retire No
                Or Before           Later Than
                12-31-03            12-31-72
                12-31-05            12-31-73
                12-31-07            12-31-74
                12-31-09            12-31-75
                12-31-11            12-31-76
                

Thereafter at age 65

(b) Employees subject to the above schedule, who are older than age 65 may choose to retire prior to their scheduled retirement date, but no employee covered under Legislative Bill 921 may work past the appropriate compulsory retirement date

Douglas County Personnel Policy Manual, Art. XIII, page 1

The foregoing statements of policy and regulations were in effect at all times material hereto and continued to remain in effect as of the date hereof.

Further, the written regulations provided for protection and fair treatment for Douglas County employees in all aspects of personnel administration in connection with their political affiliation, race, color, national origin, sex or creed. Further, the written regulations provided in substance that an employee of Douglas County could not be discharged, suspended, placed on probation or demoted in rank or compensation without the filing of a written order by the employee's department head specifically stating and setting out the reasons for the same and provided and set up the machinery for the employee's appeal from such an order and a subsequent public hearing thereon before the Douglas County Civil Service Commission. In other words, employees covered by the Civil Service Act are protected from any frivolous or discriminatory discharge, suspension or demotion and are assured fair treatment regardless of their political affiliation, race, color, national origin, sex or creed (see Civil Service Commission, Douglas County Personnel Policy Manual, General Policy, Article I(e), (f), Article III, Article XIX, Section 1, Section 2). Neither the Civil Service Act nor the regulations of the Douglas County Civil Service Commission apply to part-time, seasonal or temporary employees, and both sides agree that the age of a part-time employee would not require mandatory termination (retirement) and that such an employee could continue working for Douglas County at any age if such an arrangement was mutually agreeable with the employee and the County. This, of course, would include plaintiff.

As stated above, and in essence, the plaintiff has challenged the Act and the written statements and regulations promulgated thereunder on the grounds that her rights under the Fourteenth Amendment of the Constitution are violated and abridged, this for the reasons that plaintiff's classification which requires mandatory retirement at age sixty-nine (for her) has no reasonable basis to the purposes of promotion of economy and efficiency and regulation of County employment and that her classification is irrational and arbitrary. Further, for the reason that all Douglas County employees are not covered by the Act and the rules and regulations promulgated thereunder and that some employees are specifically excluded. And, finally, plaintiff claims to be the victim of an irrebuttable presumption of unfitness to work and has been given no opportunity for a fitness hearing which might result in her continued employment. This Court cannot agree with plaintiff's contentions.

Basically, plaintiff's argument and contentions appear to rest on the assumption that age is a factor subject to constitutional protection and that age classifications, as such, are subject to Fourteenth Amendment scrutiny. However, and to the contrary, there appears to be no question but what age is a classification which bears a reasonable relation to the law in question and that age has an inevitable and definite relationship with the ability to perform work. Indeed, many employers, public and private, have traditionally adopted policies including mandatory retirement for reasons of good business and management, and it is not the function or the prerogative of this Court to substitute its judgment for that...