E.E.O.C. v. Com. of Mass.

• Decision Date: 06 November 1992
• Docket Number: No. 92-1696,92-1696
• Citation: 987 F.2d 64
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 313, 61 Empl. Prac. Dec. P 42,083, 61 USLW 2537, 16 Employee Benefits Cas. 1617 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Appellant, v. COMMONWEALTH OF MASSACHUSETTS, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 64

987 F.2d 64

61 Fair Empl.Prac.Cas. (BNA) 313,

61 Empl. Prac. Dec. P 42,083, 61 USLW 2537,

16 Employee Benefits Cas. 1617

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Appellant, v. COMMONWEALTH OF MASSACHUSETTS, et al., Defendants, Appellees.

No. 92-1696.

United States Court of Appeals, First Circuit.

Heard Nov. 6, 1992.

Decided March 4, 1993.

Lamont N. White, Atty., with whom Donald R. Livingston, General Counsel, Gwendolyn Young Reams, Associate General Counsel, and Vincent J. Blackwood, Asst. General Counsel, Washington, DC, were on brief for appellant E.E.O.C.

Steven S. Zaleznick, Cathy Ventrell-Monsees, and Thomas W. Osborne, Washington, DC, on brief for American Ass'n of Retired Persons, amicus curiae.

Pierce O. Cray, Asst. Atty. Gen., with whom Scott Harshbarger, Atty. Gen., Boston, MA, was on brief for appellee Com. of Mass.

James H. Quirk, Jr., Yarmouthport, MA, for appellee Barnstable County Retirement Ass'n.

Before BREYER, Chief Judge, HIGGINBOTHAM, ^* Senior Circuit Judge, and BOUDIN, Circuit Judge.

A. LEON HIGGINBOTHAM, Senior Circuit Judge.

Massachusetts requires state and local officials and general employees who are seventy years old or older to take and pass a medical examination as a condition of continued employment. The issue on this appeal is whether such a requirement violates the Age Discrimination in Employment Act (ADEA), 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq. (1990). We hold that it does.

I.

In 1977, Massachusetts enacted Chapter 32 of Massachusetts General Laws to regulate its retirement systems and pensions. One component of Chapter 32, Section 90F, requires Group 1 employees of the Commonwealth and its political subdivisions who are seventy years of age or older to pass an annual medical examination as a condition of continued employment. ¹ Group 1 employees are "[o]fficials and general employees including clerical, administrative and technical workers, laborers, mechanics and all others not otherwise classified." Mass.Gen.L. ch. 32, § 3(2)(g) (1992). Under the regulations enacted pursuant to section 90F, no later than 120 days before the last day of the month when a Group 1 employee will reach the age of seventy, the retirement board of which he or she is a member notifies him or her of the retirement benefits to which he or she would be entitled if he or she retired at the age of seventy. In order to remain in employment after the age of seventy, the employee must complete an application and submit to a medical examination by a physician designated by the board. Upon receipt of the report of the physician, the retirement board votes to decide whether to grant the application for permission to continue in service. If the application is granted, the employee must repeat the process each year. If the application is denied, the employee is retired on the last day of the month of his or her birth. Mass.Regs.Code tit. 840, § 11.01-11.02 (1992).

Barnstable County Retirement Association (BCRA) is one of the 106 public retirement systems governed by § 90F. In 1988 the BCRA required Mary Cavender, a librarian employed by a town in Massachusetts, to pass a medical examination in order to continue her employment with the town. She passed the medical examination and was allowed to continue her employment. No employees have been forced to retire since § 90F has been in effect.

On September 9, 1989, the Equal Employment Opportunity Commission (EEOC) brought suit against Massachusetts and the BCRA. The EEOC alleged that the requirements of § 90F that Massachusetts state and local employees aged seventy or older take and pass an annual medical examination as a condition of continued employment was violative of, and hence preempted by, § 4(a) of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a). Section 4(a) provides:

It shall be unlawful for an employer (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or (3) to reduce the wage rate of any employee in order to comply with this chapter.

Following discovery, all parties moved for summary judgment. The EEOC argued in its motion that § 90F was discriminatory on its face and that defendants had not established a justification for using age as a factor in determining who would be required to take and pass a medical examination as a condition of continued employment. Massachusetts' answer in its motion for summary judgment was twofold: first, it argued that § 4(a) of the ADEA was not applicable to the dispute because § 90F was not preempted by the ADEA; second, and in the alternative, Massachusetts argued that § 90F did not violate the ADEA because concerns over the fitness of employees, rather than age, was the basis of the statute.

On April 17, 1992, the district court granted defendants' motions for summary judgment, denying the EEOC's motion. 788 F.Supp. 106. The court reasoned that the regulation of its employees has traditionally been one of the historic powers of the state. According to the court, the Supreme Court held in Gregory v. Ashcroft, --- U.S. ----, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), that Congress should make its intention clear and manifest when it intends to preempt the historic powers of the state. In the view of the court, Congress, in enacting the ADEA, did not make it clear and manifest that it intended to "limit employer-states' ability to assess the fitness of their employees." Moreover, the court continued, the practice of requiring employees seventy years of age or older to undergo an annual medical examination "is a practice very conducive to the health and well being of those employed by state government as well as by society at large." Thus, the court concluded, § 90F is not preempted by, and is not violative of, the ADEA, and for the court to hold otherwise would be "to indulge in judicial legislation to override the balance of federal and state powers."

The EEOC now appeals the district court's grant of summary judgment. The EEOC requests that we reverse the grant of summary judgment in favor of appellees and that we remand directing the district court to enter summary judgment in its favor. The EEOC makes three main arguments in support of its appeal. First, the EEOC reiterates that § 90F violates the ADEA on its face. Second, the EEOC maintains that age, and not concerns over employee fitness, is the basis for § 90F. Finally, the EEOC argues that § 90F does not qualify for the bona fide employee benefit exception of the ADEA.

II.

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We exercise plenary review of summary judgment dispositions. Olivera v. Nestle Puerto Rico, Inc., 922 F.2d 43, 44-45 (1st Cir.1990). The facts of this case, as recounted above, are not in dispute. So, we turn first to the issue of whether § 90F is preempted by the ADEA.

A.

Congress has the power to preempt state legislation under the Supremacy Clause of Article VI of the Constitution. Federal preemption law recognizes two types of preemption, express and implied. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300, 108 S.Ct. 1145, 1150, 99 L.Ed.2d 316 (1988); Wisconsin Publ. Intervenor, et al. v. Mortier, --- U.S. ----, 111 S.Ct. 2476, 2482, 115 L.Ed.2d 532 (1991); see also Wood v. General Motors Corp., 865 F.2d 395 (1st Cir.1988). Express preemption occurs when Congress states in the text of legislation that it intends to preempt state legislation in the area. In the absence of such a specific statement, a federal statute may also preempt by implication a state statute. The United States Supreme Court has identified the circumstances under which such implied preemption may occur:

In the absence of explicit statutory language, however, Congress implicitly may indicate an intent to occupy a given field to the exclusion of state law. Such a purpose may be inferred where the pervasiveness of the federal regulation precludes supplementation by the States, where the federal interest in the field is sufficiently dominant, or where the "object sought to be obtained by the federal law and the character of obligations imposed by it ... reveal the same purpose." Finally, even where Congress has not entirely displaced state regulation in a particular field, state law is preempted when it actually conflicts with federal law. Such a conflict will be found " 'when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.' "

Schneidewind, 485 U.S. at 299-300, 108 S.Ct. at 1150-1151 (citations omitted) (emphasis added).

Before the district court the EEOC argued, and on appeal it reiterates, that § 90F actually conflicts with § 4(a) due to the impossibility of complying with both statutes. Specifically, the EEOC maintains that, since only employees who are seventy years of age or older are required to take and are forced to retire if they fail an annual medical examination, § 90F conflicts with § 4(a) of the ADEA providing that it is unlawful for an employer "to discharge ... or otherwise discriminate against any individual with respect to his ... terms, conditions, or privileges of employment because of such individual's age." 29 U.S.C. § 623...