E.E.O.C. v. Missouri State Highway Patrol, s. 83-1287

• Decision Date: 12 November 1984
• Docket Number: 83-1850 and 83-2636,Nos. 83-1287,s. 83-1287
• Citation: 748 F.2d 447
• Parties: 36 Fair Empl.Prac.Cas. 401, 35 Empl. Prac. Dec. P 34,778, 53 USLW 2272 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION and Calvin Price, Appellees-Cross Appellants, v. MISSOURI STATE HIGHWAY PATROL; State of Missouri; Alan S. Whitmer, Superintendent of Missouri State Highway Patrol; Edward D. Daniel; Missouri Highway & Transportation Commission; Stephen C. Bradford, Appellants-Cross Appellees. In re MISSOURI STATE HIGHWAY PATROL, Petitioner.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 447

748 F.2d 447

36 Fair Empl.Prac.Cas. 401,

35 Empl. Prac. Dec. P 34,778, 53 USLW 2272

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION and Calvin Price Appellees-Cross Appellants, v. MISSOURI STATE HIGHWAY PATROL; State of Missouri; Alan S Whitmer, Superintendent of Missouri State Highway Patrol Edward D. Daniel; Missouri Highway & Transportation Commission; Stephen C. Bradford, Appellants-Cross Appellees In re MISSOURI STATE HIGHWAY PATROL, Petitioner.

Nos. 83-1287, 83-1850 and 83-2636.

United States Court of Appeals, Eighth Circuit.

Submitted Dec. 13, 1983.

Decided Nov. 12, 1984.

Nancie Aulgur, Asst. Atty. Gen., Jefferson City, Mo., for appellants-cross appellees.

Dianna Johnston, Washington, D.C., and Roger Toppins, Jefferson City, Mo., for appellees-cross appellants.

Before McMILLIAN, JOHN R. GIBSON and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

The Equal Employment Opportunity Commission (EEOC) and Calvin Price, a former lieutenant in the Missouri State Highway Patrol (Patrol), sued the Patrol, the Missouri State Highway Commission, and various state agency officials, alleging violations of the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 [hereinafter ADEA]. ¹ The District Court ruled that the Patrol's mandatory retirement age of sixty for all uniformed members violates the ADEA, that the maximum hiring age of thirty-two for radio operators violates the ADEA, and that the maximum hiring age of thirty-two for patrolmen does not violate the ADEA. EEOC v. Missouri State Highway Patrol, 555 F.Supp. 97 (W.D.Mo.1982). The Patrol appeals from the holdings which invalidated the mandatory retirement age and the maximum hiring age for radio operators. In its cross-appeal, the EEOC challenges that portion of the decision which upholds the maximum hiring age for patrolmen. We reverse the District Court's invalidation of the mandatory retirement age and the maximum hiring age for radio operators. We affirm its holding that the maximum hiring age for Patrolmen is valid.

On December 7, 1983, the Patrol also filed in this Court a petition for a writ of prohibition, seeking to prevent the District Court from reopening the issue of a back pay award for Sergeant James R. Hightower, a patrol member who was mandatorily retired. The parties were instructed that no ruling would be made on the petition at that time, that the EEOC should file a written response, and that the parties should be prepared to discuss the writ application on December 13, 1983, when the merits of the case were to be argued. On December 22, 1983, we granted the petition pending further order of this Court. Because our resolution of the merits of this case rules out further consideration of relief for Hightower, we now direct the District Court to dismiss any claim that may still be pending regarding back pay for Hightower.

I.

Enacted in 1967, the ADEA originally applied only where the covered employer "engaged in an industry affecting commerce." Pub.L. No. 90-202, Sec. 11(b), 81 Stat. 602, 605 (codified at 29 U.S.C. Sec. 630(b)). An amendment passed in 1974, however, makes state and local governments subject to the statute. Pub.L. No. 93-259, Sec. 28(a)(2), 88 Stat. 55, 74 (codified at 29 U.S.C. Sec. 630(b)).

The Patrol has not challenged the constitutionality of the extension of the ADEA to the states. Instead, the Patrol argues that its policies survive scrutiny under the statute. Accordingly, we need not and do not inquire into the constitutional issues. ²

II.

The ADEA forbids employment restrictions based on age unless age is "a bona fide occupational qualification reasonably necessary to the normal operation of the particular business ..." (BFOQ). 29 U.S.C. Sec. 623(f)(1). Thus, the ADEA recognizes that in some instances age is inherently related to ability and may be a valid occupational qualification.

Our Court has set forth the standards in age discrimination cases in Hoefelman v. Conservation Commission of the Missouri Department of Conservation, 718 F.2d 281 (8th Cir.1983); EEOC v. City of St. Paul, 671 F.2d 1162 (8th Cir.1982); and Houghton v. McDonnell Douglas Corp., 553 F.2d 561 (8th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 506, 54 L.Ed.2d 451 (1977). Under these cases, the employer has the burden of proving that its actions are within the scope of the BFOQ exemption, and the BFOQ test is that set forth in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 234-36 (5th Cir.1976).

The teaching of these precedents is that, in order to satisfy the BFOQ standard, the Patrol has the burden of establishing (1) a correlation between the age limitations in question and the safe and efficient performance of the Patrol's functions, see Tamiami, 531 F.2d at 235 & n. 27; EEOC v. University of Texas Health Science Center, 710 F.2d 1091, 1094 (5th Cir.1983), and (2) that it has a factual basis for believing either that substantially all older uniformed Patrol members are unable to perform their duties safely and efficiently, or that some older Patrol members possess traits which preclude safe and efficient job performance and which cannot practically be ascertained other than through knowledge of a Patrol member's age, see Tamiami, 531 F.2d at 236-37.

We note that the age restrictions under which the Patrol operates are mandated by state law. ³ The Missouri General Assembly thus has made a legislative judgment that the age restrictions here in issue are in the best interest of the Patrol and the people the Patrol serves throughout the state. This fact does not relieve the Patrol from the burden of showing that each of these restrictions is a BFOQ. See Hoefelman v. Conservation Commission, 718 F.2d 281 (8th Cir.1983). At the same time, in applying the BFOQ exemption, we should be guided by sound principles of federalism and should accord some deference to the state legislative declaration. See EEOC v. City of St. Paul, 671 F.2d at 1167 (legislative determination not entitled to presumption of correctness, but "[t]his is not to say that a legislative declaration is not entitled to considerable deference.") Cf. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (holding that Massachusetts statute making it mandatory for a uniformed state police officer to retire at age fifty does not deny equal protection of the laws in violation of the Fourteenth Amendment).

Guided by the standards and considerations outlined above, we have carefully reviewed the record to determine whether the District Court's findings of fact are clearly erroneous and whether the District Court correctly applied the law. See EEOC v. City of St. Paul, 671 F.2d at 1166. We conclude that the District Court committed error in invalidating the mandatory retirement age for Patrol members and the maximum hiring age for radio operators, and that it correctly upheld the maximum hiring age for Patrol members.

III.

We turn initially to the question of the mandatory retirement age for Patrol members. Although the District Court made several findings concerning the duties and qualifications of Patrol members, it did not directly discuss the first part of the Tamiami test set forth above. ⁴ We discuss it here in order to clarify the demands that are placed on all Patrol members regardless of age or rank. The central concern of this part of the BFOQ test is illuminated by language from Tamiami, in which the court, in sustaining as a BFOQ a bus company's maximum hiring age of forty for intercity bus drivers, suggested that "[t]he greater the safety factor, measured by the likelihood of harm and the probable severity of that harm in case of an accident, the more stringent may be the job qualifications designed to insure safe driving." 531 F.2d at 236. Employers are entitled to substantial discretion in judging the reasonableness of safety-related job qualifications. Id. at 236 n. 30.

The Patrol's main functions are to enforce the traffic laws and to maintain safety on the highway. The Patrol also does criminal work including investigations of burglaries, murders, and other crimes. Patrolmen and corporals spend the most time working the roads and conducting investigations. Higher ranking Patrol members often travel on the road as part of their normal duties or coming to and from work. ⁵ The Patrol members' obligation to the public extends to their off-duty hours. At all times, they are expected to enforce the traffic laws and to act when a felony is committed in their presence, when someone's life is in danger, when property is threatened, and when they receive information requiring Patrol attention. All ranks, including those which are primarily administrative, participate in special assignments. For example, the Patrol steps up its policing of the highways on holiday weekends, and the participation of senior officers is required. Other special assignments include riot control, civil disturbances, natural disasters, manhunts for escaped convicts, football game detail, and covering important meetings.

A member of the Patrol engages in physically and emotionally strenuous activities. His duties may involve handling verbal and physical resistance from suspects such as violent drunks or fleeing suspects. Apprehending a speeder or a drunk driver may necessitate a chase, during which the Patrol member must drive at high speeds, weave through highway traffic, and call the radio dispatcher. For instance, when Lieutenant Mills, a desk officer, was returning home from work one day, he chased a speeding motorist. After the motorist fled from his car, Mills chased him on foot. When the motorist turned on Mills and pointed a revolver at him, Mills shot and killed the motorist.

If the Patrol member is called to an accident scene, he determines what assistance is needed, such as the immediate removal of victims from cars, applies first aid to victims, and secures the scene from further damage. Patrol members also have the...