E.E.O.C. v. City of Altoona, Pa., 82-5805
| Decision Date | 13 December 1983 |
| Docket Number | No. 82-5805,82-5805 |
| Parties | 33 Fair Empl.Prac.Cas. 888, 33 Empl. Prac. Dec. P 33,970, 4 Employee Benefits Ca 2670 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. CITY OF ALTOONA, PENNSYLVANIA, Commonwealth of Pennsylvania. Appeal of UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. |
| Court | U.S. Court of Appeals — Third Circuit |
David L. Slate, Gen. Counsel, Philip B. Sklover, Associate Gen. Counsel, Vella M Alton P. Arnold, Jr., Deputy Atty. Gen., Pittsburgh, Pa., for Com. of Pa.
Fink, Asst. Gen. Counsel, Dianna B. Johnston (argued), Atty., E.E.O.C., Washington, D.C. for appellant, E.E.O.C.
James A. Mollica, Jr. (argued), Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., for appellee, City of Altoona.
Before GIBBONS, GARTH and HIGGINBOTHAM, Circuit Judges.
The Equal Employment Opportunity Commission (EEOC) appeals from a summary judgment in favor of the City of Altoona and the Commonwealth of Pennsylvania, in its complaint for injunctive relief prohibiting the City from violating the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. Secs. 621-634 (1976 & Supp. V 1981). 1 The complaint also seeks reinstatement and back pay for five former members of the City Fire Department. The district court granted summary judgment, first because the Age Discrimination Act could not, by virtue of the tenth amendment, apply to the City, and second, because the firemen in question were discharged for a reason other than age. We reverse and remand for the entry of an appropriate injunction and back pay award.
In 1978 the City, experiencing budgetary problems, decided to reduce the size of the Fire Department by eight persons. It selected for termination the eight most recently hired firefighters. Those eight responded by an action in the Court of Common Pleas of Blair County seeking injunctive relief. They contended that the City's action violated Section 11 of the Third Class Cities Firemen's Civil Service Act, Pa.Stat.Ann. tit. 53, Sec. 39871 (Purdon 1957), which provides:
If for reasons of economy, or other reasons, it shall be deemed necessary by any city to reduce the number of paid members of any fire department ... then such city shall follow the following procedure:
First. If there are any paid firemen ... eligible for retirement under the terms of any pension fund, then such reduction in numbers shall be made by retirement on pension of all the oldest in age and service.
The City had previously established a pension plan permitting voluntary retirement at age fifty after at least twenty years of service. In response to the common pleas complaint the City pleaded that the ADEA prohibits "discharge [of] any individual ... because of such individual's age." 29 U.S.C. Sec. 623(a)(1) (1976). In support of that contention the City furnished the Common Pleas Court with a letter from the acting administrator of the Employment Standards Division of the United States Labor Department advising that in the Department's view section II of the Pennsylvania statute was preempted by the ADEA. No effort was made to join as parties to the Common Pleas Court action members of the Fire Department who were eligible for pensions.
On March 16, 1979 the Court of Common Pleas entered a final judgment holding that the discharge of the eight most recent hires violated section 11 of the Pennsylvania act, and ordering their reinstatement with back pay. Although in denying a preliminary injunction the Common Pleas Court discussed ADEA, the final judgment did not mention it. The City took no appeal. Instead, on March 21, 1979 the City Council resolved to reinstate the discharged recent hires, with back pay, and to discharge seven others in accordance with section 11. Of the seven, two were 57 years of age. Those two were recalled within four days. Five others, the oldest and most senior, ranging in age between 59 and 61 and in service between 26 and 37 years, were not recalled.
Sometime after their forced retirement four of the five were invited to apply for reinstatement on January 1, 1980. 2 The reinstatement offer was conditioned, however, on successfully passing a physical examination and a stress test. Had they not been retired they would not have been required to take either test. One of the four failed the physical examination. The other three refused to submit to the examination.
A charge was filed with EEOC, and its conciliation efforts were unsuccessful. On March 18, 1981 EEOC commenced the instant action. All parties, conceding that there are no disputed issues of material fact, moved for summary judgment.
The first ground relied upon by trial court in granting summary judgment for the City need not long detain us. Relying on National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), the court held that the tenth amendment prohibited Congress from applying the ADEA to municipalities. That decision was made, however, without the benefit of the Supreme Court's subsequent opinion in EEOC v. Wyoming, --- U.S. ----, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), that application of the ADEA to state and local government employers does not violate that amendment. National League of Cities v. Usery, supra, appears to have spent whatever energy for growth it might have had.
The second ground relied upon by the trial court in denying relief is that 29 U.S.C. Sec. 623(a)(1) (1976) was not violated, because the layoffs of the pension eligibles was not because of age, but because of pension eligibility. In support of that construction of the ADEA the court relied upon McKeesport v. International Ass'n of Firefighters, 41 Pa.Cmwlth. 133, 399 A.2d 798 (1979).
In EEOC v. County of Allegheny, 705 F.2d 679 (3d Cir.1983), this court rejected the contention that a Pennsylvania statute imposing a hiring ceiling of 35 years was a defense to an ADEA charge. That precedent controls. The undisputed facts are that normal retirement age for City firefighters under the City's ordinance is 65, and that the pension eligibles were singled out for involuntary retirement pursuant to section 11 solely because they were the oldest, in years and in service, in the Department. There is no way in which what section 11 requires can be termed a "differentiation [ ] based on reasonable factors other than age." 29 U.S.C. Sec. 623(f)(1) (1976 & Supp. V 1981). Even among pension eligibles, layoffs are on the basis of age. Moreover, seniority is in section 11 inexorably linked with age, and cannot be viewed as a separate factor. See Laugesen v. Anaconda Co., 510 F.2d 307, 313 (6th Cir.1975) (); cf. Geller v. Markham, 635 F.2d 1027, 1032-33 (2d Cir.1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981) (). The construction of the ADEA in McKeesport v. International Ass'n of Firefighters, supra, is simply wrong. How wrong is disclosed in the Senate Report on the Age Discrimination in Employment Act Amendments of 1978, Pub.L. No. 95-256, 92 Stat. 189:
For capable older workers the retirement decision should be an individual option. Maximum freedom of choice should be given to employees in deciding when to retire, provided they are still physically and psychologically able to perform their jobs in a satisfactory manner.
S.Rep. No. 493, 95th Cong., 2d Sess. 3, reprinted in 1978 U.S.Code Cong. & Ad.News 504, 506. The 1978 amendments to ADEA added to section 4(f)(2) a prohibition of provisions in an employee benefit plan which "shall require or permit the involuntary retirement of any individual [age 40 to 70] because of the age of such individual." 29 U.S.C. Sec. 623(f)(2) (Supp. V 1981). "[T]he purpose of the amendment to section 4(f)(2) is to make...
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