E.E.O.C. v. Kentucky State Police Dept., 87-5193

• Decision Date: 13 January 1989
• Docket Number: No. 87-5193,87-5193
• Citation: 860 F.2d 665
• Parties: 48 Fair Empl.Prac.Cas. 314, 48 Empl. Prac. Dec. P 38,403, 57 USLW 2332, 10 Employee Benefits Ca 1393 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. KENTUCKY STATE POLICE DEPARTMENT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 665

860 F.2d 665

48 Fair Empl.Prac.Cas. 314,

48 Empl. Prac. Dec. P 38,403, 57 USLW 2332,

10 Employee Benefits Ca 1393

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. KENTUCKY STATE POLICE DEPARTMENT, et al., Defendants-Appellees.

No. 87-5193.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 3, 1987.

Decided Nov. 1, 1988.

Rehearing and Rehearing En Banc Denied Jan. 13, 1989.

Harriett Miller Halmon, Carolyn Howard, E.E.O.C., Memphis, Tenn., Justine S. Lisser (argued), E.E.O.C., Washington, D.C., for plaintiff-appellant.

Frank E. Haddad, Jr. (argued), Gary R. Hillerich, Louisville, Ky., for defendants-appellees.

Before ENGEL, Chief Judge, ^* KENNEDY, Circuit Judge, and EDWARDS, Senior Circuit Judge.

GEORGE CLIFTON EDWARDS Jr., Senior Circuit Judge.

The EEOC is plaintiff and appellant in this action in which certain state police officers joined by the EEOC are appealing a decision entered by the United States District Court for the Eastern District of Kentucky. At issue is a Kentucky statute establishing a mandatory retirement age of 55 years. The plaintiffs in this action contend that the Kentucky statute, by establishing the mandatory 55 age limit for employment, violated the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621, et seq. Defendants contend that the 55-year limit is a Bona Fide Occupational Qualification.

The United States District Court took testimony from both parties in a three-day bench trial and then held for the defendants holding the 55-year limit to be a bona fide occupational qualification.

Some of the essential facts of the dispute are set forth in the following paragraph from the District Judge's opinion:

This is a close case. The court carefully considered the testimony and the arguments submitted by both sides before concluding that defendant met its burden of proving that cardiovascular fitness and aerobic capacity are traits reasonably necessary to the performance of a Kentucky State Police officer's job. After long periods of job-related sedentary activity, driving a police car, or investigating crimes, an officer may be called upon to engage in periods of highly stressful activity. That police officers sometimes must pursue a fleeing suspect on foot or subdue a captured suspect is not merely a product of the Hollywood imagination. Indeed the possibility of such occurrences is undisputed in this case.

We believe this reasoning is sound on the statements related therein. But it does not take into account the total and the crucial facts of this case.

This record shows that Kentucky State Police has no program for regular testing of all of its officers for physical fitness. ¹ At one time, Commissioner Elkins testified Kentucky State Police tried giving physical fitness tests to all members of the force but abandoned the practice. Elkins explained "it was putting people in the hospital rather than keeping them on the road working."

The record also discloses that Kentucky State Police permits officers to remain on the job in spite of known heart attacks or by-pass surgery. Equally important, in the facts with which we are confronted, is the fact that Kentucky State Police has no program for testing or maintaining the physical or the cardiovascular health of its officers. In fact, the record discloses that one veteran of the force died on patrol in his cruiser as a result of his fourth heart attack.

It is not, of course, the function of this court to tell the Kentucky State Police Commissioner how to operate its police force.

It is however, required of this court that we define whether or not Kentucky's "mandatory retirement age of 55 years" is a bona fide occupational qualification. The record in this case convinces us that it is not. First, this record demonstrates that the Kentucky State Police Force has no program for testing the fitness of its officers either as to aerobic or cardiovascular health. We recognize that there are such fitness tests for a "special response team." Each Post has one such team. Each member of that team is given regular physical fitness tests including timed mile run in full gear, push-ups and sit-ups.

Still further bearing on the bona fides of the Kentucky State Police program are the facts, that the agency repeatedly permitted officers under the age of 55 who had known health problems including heart conditions to remain on the job with no diminution of duties, and that officers who had had heart attacks or by-pass surgery had been retained on the force. A 25-year veteran of the force, Eugene Coffey, died of his fourth heart attack at the age of 49 while on routine patrol in his cruiser.

One of the state expert witnesses, Dr. Lind, a physiologist, testified that an aerobic capacity of three liters was the number required for successful performance of all Kentucky State Police personnel. But on cross-examination, Dr. Lind admitted that most of the women officers and some competent Kentucky State Police male officers are unable to meet the three liter aerobic capacity test.

EEOC's expert witness was Dr. Pollock, a physiologist, and while he admitted that aerobic capacity is related to age, he also cited other factors such as genetics, general health, and lifestyle habits, including smoking, alcohol consumption and amounts of exercise. EEOC's other expert, Dr. Leon, a cardiologist, stated there was an increasing risk of coronary artery disease as people get older. He estimated the risk factor as being that six people out of 100 over the age of 55 would have a coronary event within 10 years. Dr. Leon also testified that if persons who smoked were eliminated physical examinations could tell with almost 100% accuracy who would be at risk of a coronary event within the next 10 years of life.

On appellate review of the District Court's finding in an employment discrimination case, we are required not to set aside findings of fact unless on appeal we can say that they are clearly erroneous and, of course, we are required to give due regard to the findings of the trial judge on the credibility of witnesses. See F.R.C.P. 52(a) and Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

We turn now to the actual language of the statute which controls this case. The Age Discrimination in Employment Act, 29 U.S.C. Sec. 623 states as follows:

(a) 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;

* * *

* * *

(f) It shall not be unlawful for an employer, employment agency, or labor organization--

(1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business....

The Supreme Court of the United States set forth the purposes of the Act just quoted in its decision in Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 410-411, 105 S.Ct. 2743, 2749-50, 86 L.Ed.2d 321 (1985). In Criswell, the Supreme Court said:

Increasingly, it is being recognized that mandatory retirement based solely upon age is arbitrary and that chronological age alone is a poor indicator of ability to perform a job. Mandatory retirement does not take into consideration actual differing abilities and capacities. Such forced retirement can cause hardships for older persons through loss of roles and loss of income. Those older persons who wish to be re-employed have a much more difficult time finding a new job than younger persons. Society, as a whole, suffers from mandatory retirement as well. As a result of mandatory retirement, skills and experience are lost from the work force resulting in reduced GNP. Such practices also add a burden to government income maintenance programs such as social security. H.R.Rep. No. 95-527, pt. 1, p. 2 (...