EEOC v. Missouri State Highway Patrol, 82-4129-CV-C-5

• Decision Date: 22 December 1982
• Docket Number: 81-4135-CV-C-5.,No. 82-4129-CV-C-5,82-4129-CV-C-5
• Citation: 555 F. Supp. 97
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. MISSOURI STATE HIGHWAY PATROL, et al., Defendants. Calvin PRICE, Plaintiff, v. Alan S. WHITMER, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

555 F. Supp. 97

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. MISSOURI STATE HIGHWAY PATROL, et al., Defendants.

Calvin PRICE, Plaintiff, v. Alan S. WHITMER, et al., Defendants.

Nos. 82-4129-CV-C-5, 81-4135-CV-C-5.

United States District Court, W.D. Missouri, C.D.

December 22, 1982.

Cynthia L. Schulte, E.E.O.C., St. Louis, Mo., Alex Bartlett, Jefferson City, Mo., for Calvin Price.

Michael Boicourt, Asst. Atty. Gen., Jefferson City, Mo., for Mo. State Highway Patrol, Alan S. Whitmer, et al.

ORDER AND MEMORANDUM

SCOTT O. WRIGHT, District Judge.

This is a consolidated action brought by the Equal Employment Opportunity Commission ("EEOC") and Calvin Price, a lieutenant in the Missouri State Highway Patrol ("Patrol"), against all of the defendants under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. The EEOC challenges the defendants' maximum hiring age of 32 for troopers and radio operators and the defendants' mandatory retirement age of 60 for all uniformed members of the Patrol. Price challenges only the mandatory retirement age. A bench trial was conducted during the week of November 7, 1982. The parties have submitted exhaustive proposed findings of facts and conclusions of law, and excellent briefs. After a thorough review of the evidence introduced at trial and the parties' briefs, the Court finds, for the following reasons, that the mandatory retirement age of 60 for all uniformed members of the Patrol violates the ADEA, that the maximum hiring age of 32 for radio operators violates the ADEA, and that the maximum hiring age of 32 for troopers is valid.

I. FINDINGS OF FACT

1. Plaintiff EEOC is an agency of the United States charged with the administration, interpretation and enforcement of the ADEA, and is expressly authorized to bring an age discrimination action. 29 U.S.C. § 626(b), as amended by Section 2 of the Reorganization Plan No. 1 of 1978, 92 Stat. 3781. Plaintiff Price is a lieutenant in the Missouri State Highway Patrol. Defendant Whitmer, at the time these lawsuits commenced, was the Superintendent of the Patrol. Since August 17, 1982, Howard J. Hoffman has been the Superintendent. Defendant Daniel is the Director of the Department of Public Safety of the State of Missouri. Defendant Missouri Highway and Transportation Commission is a governmental entity with a legal status separate from the State of Missouri and is responsible for the payment of salaries to the members of the Patrol. Defendant Bradford was the Commissioner of Administration of the State of Missouri at the time these lawsuits were filed. Since February 10, 1982, John Pelser has been the Commissioner. The State of Missouri and the Patrol have been employers within the meaning of 29 U.S.C. § 630(b) since May 1, 1974.

2. Price joined the Patrol on October 14, 1949. He was promoted to sergeant on June 1, 1962 and to lieutenant on August 1, 1975. On June 9, 1981, he attained the age of 60.

3. Price was advised on January 15, 1981 that if he wished to serve the Patrol beyond the age of 60 he was required to request an extension. He requested an extension on May 6, 1981, but was told by defendant Whitmer on May 18, 1981 that he must retire on July 1, 1981.

4. On June 29, 1981, Price filed an age discrimination charge with the EEOC. During July, 1981, he filed an age discrimination complaint in this Court and simultaneously moved for a temporary restraining order. An injunctive order was issued permitting Price to remain on the Patrol until his case was resolved. In the course of processing Price's charge, the EEOC discovered that the Patrol had a maximum hiring age of 32 for patrolmen and radio operators. The EEOC filed suit on July 7, 1982, challenging the mandatory retirement age and the maximum hiring age restrictions enforced by the Patrol.

A. Mandatory Retirement

5. Section 104.080 of the Revised Statutes of Missouri requires all uniformed members of the Patrol to retire at age 60. Prior to June, 1982, Section 104.080 required all uniformed members of the Patrol to retire at age 65 and vested the Superintendent of the Patrol with discretion to extend the employment of members of the Patrol whose ages fell between 55 and 65. Since 1945, the Patrol has adhered to a policy of mandatorily retiring all uniformed members at age 60 without regard to a member's health, job responsibilities or job performance. The Superintendent has routinely granted requests for extension to members of the Patrol whose ages fall between 55 and 60 even where those members had serious health problems which restricted their ability to participate in physically strenuous activities. Requests for extensions were only denied in cases where a member could not perform any job.

6. Since 1955, the Patrol has not allowed any uniformed member to remain employed past the age of 60 unless the Missouri legislature was currently considering legislation that would affect a member's retirement benefits. If the legislation became law, the member was permitted to remain on the Patrol past the age of 60 until the legislation took effect. The member was then immediately retired. Where the legislation failed to become law, the member was required to retire at the end of the month in which the legislature adjourned. The purpose of these extensions was solely to allow a Patrol member to obtain any retirement benefits adopted by the legislature. The mandatory retirement age is enforced because of the Patrol's pension plan and not because of an older person's inability to perform.

7. The Patrol's mandatory retirement policy applies equally to all ranks and job classifications. Since 1978, all members of the Patrol who were mandatorily retired held the rank of corporal or above. All but one held the rank of sergeant or above. All of the uniformed members who have been mandatorily retired at age 60 were rated by their superior officers as fully capable of performing all of the duties of their jobs. Price is able to fully perform his duties as a lieutenant in the Patrol. He is in excellent health and is under no restrictions with respect to the performance of his present Patrol duties.

8. All Patrol members must enforce the laws of Missouri when travelling to and from work, and while on duty in their Patrol cars. While not on duty, they must report crimes and must take appropriate action to prevent a felony in progress, or to prevent serious injury to a person or property. Most members are required to patrol the highways on Memorial Day, the Fourth of July and Labor Day. Some members are exempted for health reasons or for office work needed by the Patrol on those holidays.

9. As the rank of a Patrol member increases the frequency with which members are exposed to physically strenuous or dangerous activities decreases. The Superintendent, and the majors, lieutenants and captains spend the overwhelming majority of their time performing administrative work. Desk sergeants, sergeants who supervise license examiners, and sergeants who supervise vehicle weight inspections spend most of their time performing administrative work. For example, in the first five months of 1982, lieutenants were responsible for only 10 out of 106,937 arrests, or .01%; they were responsible for 102 out of 273,098 arrests, or .04% in 1979; they were responsible for 32 out of 279,648 arrests, or .01% in 1980; and they were responsible for 64 of 287,524 arrests, or .02% in 1981. There may be as many as 46 lieutenants serving on the Patrol. The average captain makes only .04 arrests, .3 warnings and performs .5 service rendered calls per month. There may be as many as 20 captains serving on the Patrol. The Missouri Department of Corrections permits its prison guards to work beyond the age of 60. Guards past the age of 60 have successfully served on prison emergency squads which quell uprisings within the prison population.

10. Higher ranks are held by the older members of the Patrol. The average member of the Patrol who is between 55 and 59 years of age makes only 4 arrests per month. The average member of the Patrol who is between 20 and 29 years of age makes 40 arrests per month. From 1979 to the present, 67% of the total arrests were made by patrolmen or patrolmen first class, 19% were made by corporals, 13% were made by sergeants, and less than 1% were made by all lieutenants, captains, majors and the Superintendent.

11. The Patrol has no physical fitness program for members after they have graduated from the training academy. The Patrol does not regularly test its members to determine whether they are physically able to perform all of the tasks which might arise during the course of their employment. The Patrol has no weight restrictions. According to the desired weight tables published by the Metropolitan Life Insurance Company, at least 68% of the members of the Patrol are overweight. A greater percentage of members over the age of 40 are overweight than are members under the age of 40. There is no increase in the percentage of overweight members between age 40 and age 59. Sixty-two percent of the patrolmen, patrolmen first class, and corporals are overweight. At least one patrolman is 80 pounds overweight. There are one or more persons in the ranks of patrolman, patrolman first class, corporal, sergeant, lieutenant, and captain who are at least 36 pounds overweight. Physical fitness is not used as a criteria for promotion. A regular physical fitness program would save the Patrol money because sick leave and workmen's compensation claims would be reduced. Weight limitations were repealed by the Patrol because no one would enforce them. In the one year when physical exams were conducted, many of the patrolmen discovered health problems about which they were previously unaware.

12. A number of members of the Patrol have suffered heart attacks and have been permitted to return to their regular job duties. Every member of the Patrol who had a heart...