E.E.O.C. v. University of Texas Health Science Center at San Antonio, 82-1216

• Decision Date: 01 August 1983
• Docket Number: No. 82-1216,82-1216
• Parties: 32 Fair Empl.Prac.Cas. 944, 32 Empl. Prac. Dec. P 33,751 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1091

710 F.2d 1091

32 Fair Empl.Prac.Cas. 944,

32 Empl. Prac. Dec. P 33,751

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO,

Defendant-Appellee.

No. 82-1216.

United States Court of Appeals, Fifth Circuit.

Aug. 1, 1983.

Raymond R. Baca, Gen. Counsel, Washington, D.C., for plaintiff-appellant.

Laura Martin, Asst. Atty. Gen., Austin, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GEE, REAVLEY and HIGGINBOTHAM, Circuit Judges.

REAVLEY, Circuit Judge:

The Equal Employment Opportunity Commission challenges the policy of the University of Texas of refusing to hire for initial employment commissioned campus police officers beyond the age of forty-five. The trial court concluded that the age restriction was a bona fide occupational qualification (BFOQ) and hence legal under the Age Discrimination in Employment Act (ADEA). We affirm.

I.

The University of Texas System consists of some fourteen institutions around the state. Under its current rules it will not consider applications of individuals seeking employment as beginning commissioned campus officers who have passed their forty-fifth birthdays. Commissioned officers are armed and authorized to conduct criminal investigations and make arrests. The age restriction does not apply to non-commissioned officers, who are assigned to direct traffic and guard buildings and parking lots, but are not armed or authorized to make arrests. Commissioned officers, once hired, may continue to work past their forty-fifth birthdays, though older officers typically assume administrative or supervisory roles through promotion.

Frank Price was hired as a campus police officer at Arkansas State University in August of 1973. In 1975, at the age of forty-six, he applied for an announced campus police officer vacancy at the University of Texas Health Science Center at San Antonio. He was told that he was ineligible for the job because of his age. He filed a complaint with the Department of Labor, then responsible for enforcing the ADEA, and this suit followed, seeking an end to the university policy and back wages owed to all victims of the alleged violations. The Equal Employment Opportunity Commission (EEOC or Commission) was later substituted as the current enforcement agency.

II.

Section 4(a) of the ADEA, 29 U.S.C. Sec. 623(a), prohibits employer discrimination on the basis of age. The Act covers employment practices of state agencies such as the one here. 29 U.S.C. Sec. 630(b); EEOC v. Wyoming, --- U.S. ----, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983). The university concedes that its hiring restriction distinguishes applicants on the basis of age, but defends the policy as a BFOQ.

Section 4(f) of the ADEA, 29 U.S.C. Sec. 623(f), establishes as a statutory exception that "[i]t shall not be unlawful for an employer ... to take any action otherwise prohibited under ... this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business ...." This circuit employs a two-prong legal test in determining whether an age classification qualifies as a BFOQ: (1) the classification must be reasonably necessary to the essence of the employer's business; (2) the employer must have reasonable cause, that is, a factual basis, for believing either that all or substantially all persons within the excluded class would be unable to perform safely and efficiently the duties of the job or that it is impossible or impractical to deal with persons over the age limit on an individualized basis. Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 235-36 (5th Cir.1976).

The burden of proof is on the employer to establish the BFOQ defense. Id. at 235. On appeal, a circuit court may of course fully and freely review whether the trial court applied the correct legal test, in this instance the Tamiami test. However, as long as the court below asked the right legal questions, its findings under each prong of the Tamiami test are findings of fact and are reversible only if clearly erroneous. Id. at 226, 233, 238; EEOC v. City of St. Paul, 671 F.2d 1162, 1166 (8th Cir.1982); Smallwood v. United Air Lines, Inc., 661 F.2d 303, 305, 307 (4th Cir.1981), cert. denied, 456 U.S. 1007, 102 S.Ct. 2299, 73 L.Ed.2d 1302 (1982); Fed.R.Civ.P. 52(a). Cf. Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). In this case, the trial court made express reference to Tamiami in concluding that the defendant had established its age qualification as a BFOQ. The court also made numerous findings of fact which fall neatly within each prong of the Tamiami test. Reviewing these findings under the clearly erroneous standard, we find ample and respectable evidence presented by both sides in the record, but cannot say that any finding "is so against the great preponderance of the credible testimony that it does not reflect the truth of the case," Merchants National Bank of Mobile v. Dredge General G.L. Gillespie, 663 F.2d 1338, 1341 (5th Cir.1981), cert. dismissed, 456 U.S. 966, 102 S.Ct. 2263, 72 L.Ed.2d 865 (1982), or that we are "left with the definite and firm conviction that a mistake has been committed," United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948).

At trial, both the EEOC and the state elicited testimony from experienced and intelligent witnesses concerning the duties of campus police officers and the effects of aging on the ability of individuals to perform those duties. The EEOC presented testimony that older officers can handle the job as well or better than their younger counterparts, and that the duties of campus police officers are not as strenuous as those of other police jobs where even stricter age requirements are imposed. The EEOC also offered evidence that individualized testing of older applicants to determine job fitness is both medically feasible and financially practical. The state presented evidence, less voluminous but in our view no less credible, that older officers are less adept at handling the duties of a campus patrolman, and that medical testing cannot accurately screen applicants on an individualized basis. A theme of the defendant throughout the trial was that the duties of campus police officers are the same or similar to those of other law enforcement officers who work for employers that impose considerably lower hiring ceilings. The testimony on both sides ranged from anecdotal accounts by campus officers to technical opinions by doctors specializing in geriatrics and gerontology. Rather than summarize here all of the evidence presented, we concentrate on the evidence as it relates to the arguments raised on appeal.

III.

The Commission argues that the age requirement is not reasonably necessary to the essence of the job, as required by the first prong of Tamiami. The district court found, and there appears to be no dispute, that "[t]he business of the University Police Department is the protection of students, staff, faculty and public safety of all persons on or near the campuses of the University of Texas System. This job involves preserving the peace, effecting arrests and suppressing crime." In concluding that the defendant had established a BFOQ, the court found "based upon the testimony of Carl Page, M.D., of Lubbock, Texas, that there is a deterioration both physiologically and psychologically which is contributable to the process of aging," and that "age statistically proved to be a prominent factor in one's individual physical condition." The court further found that "[t]he public safety of all persons on or near campus of the University of Texas System could be endangered to some degree by hiring persons as beginning peace officers if they were not commissioned prior to their forty-fifth birthday," and that "[t]he health of an average individual, 45 years or older, could be endangered in the performance of the duties of being a newly commissioned peace officer within the University of Texas police system."

We agree with the Commission that general evidence on the truism that all people deteriorate physically with age cannot by itself establish a BFOQ in this case. The statutory requirement is that the age qualification be "reasonably necessary to the normal operation of the particular business." 29 U.S.C. Sec. 623(f)(1) (emphasis added). See also EEOC v. City of St. Paul, 671 F.2d 1162, 1168 (8th Cir.1982) (evidence on general debilitating effects of age is insufficient to establish a BFOQ). Some showing is required that the specific age qualification chosen is reasonably necessary to the viability of the business because of particular job skills that older applicants lack. Likewise, we agree that offhanded, subjective opinions by hiring officials that older applicants cannot handle the job are not by themselves sufficient to justify age restrictions, since holding that such opinions are determinative would condone "precisely the stereotypical thinking that the ADEA was designed to prevent." Tamiami, 531 F.2d at 234. Instead, the defendant must demonstrate a specific, objective, or factual basis for its hiring qualifications based on age. With these standards in mind, we cannot say that the trial court's findings are clearly erroneous, even though the EEOC presented considerable evidence in opposition to the BFOQ defense.

On appeal as at trial, the university justifies its hiring limit on two grounds: (1) older individuals lack the acute physical and mental agility and stamina required to serve effectively as rookie campus officers; (2) younger officers are more qualified because they "relate" better to the youthful constituency encountered on college campuses.

There was consistent testimony at trial that physical strength, agility and stamina are important to the training and...