EEOC v. State of Tenn. Wildlife Resources Agency

• Decision Date: 07 March 1986
• Docket Number: No. 81-3461.,81-3461.
• Citation: 696 F. Supp. 1163
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. STATE OF TENNESSEE WILDLIFE RESOURCES AGENCY.
• Court: U.S. District Court — Middle District of Tennessee

696 F. Supp. 1163

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. STATE OF TENNESSEE WILDLIFE RESOURCES AGENCY.

No. 81-3461.

United States District Court, M.D. Tennessee, Nashville Division.

March 7, 1986.

Joseph Ray Terry, Regional Atty., R. Larry Brown, Supv. Trial Atty., Harriett Miller Halon, Trial Atty., E.E.O.C., Memphis, Tenn., Calvin C. Williams, Jr., R. Faye Austin, Sr. Trial Attys., Gail Black, Associate Gen. Counsel, E.E.O.C., Washington, D.C., for plaintiff.

Mary E. Walker, Christine A. Modist, Asst. Atty. Gen., Nashville, Tenn., for defendant.

MEMORANDUM

HIGGINS, District Judge.

The Equal Employment Opportunity Commission (EEOC) brought this action in July, 1981, challenging the statutory mandatory retirement age of 55 for Tennessee Wildlife Enforcement Officers. In December, 1982, the case was administratively closed pending the decision of the United States Supreme Court in EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983). Following the Court's decision in Wyoming, the EEOC moved to reinstate the case to the active trial docket. The motion was granted on March 30, 1983. This action came to be tried before this Court on July 22, 1985, and the trial as to the issues of liability and general injunctive relief was conducted on July 22 through July 27, 1985. Pursuant to the Court's order of June 17, 1985, the trial was bifurcated and the issues of individual relief remain to be tried. Prior to the trial, the EEOC withdrew its claim for liquidated damages under 29 U.S.C. § 623.

For the reasons stated below, the Court finds that mandatory retirement at age 55 is a bona fide occupational qualification (BFOQ) for wildlife officer I, wildlife officer II and area supervisor, but that 55 is not a BFOQ for the positions of chief of law enforcement or assistant chief of law enforcement.

Findings of Fact

The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 29 U.S.C. §§ 216(c), 217 and 626(b). The EEOC, an agency of the United States government expressly charged with the administration, interpretation, and enforcement of the Age Discrimination in Employment Act (ADEA), is authorized to bring this action under 29 U.S.C. § 626(b).

The defendant is the State of Tennessee, Tennessee Wildlife Resources Agency (TWRA), which was created by the Tennessee State Legislature under the authority of Tenn.Code Ann. § 70-1-301 and which is an employer under the ADEA, 29 U.S.C. § 630(b). TWRA, pursuant to Tenn.Code Ann. § 70-1-302, is responsible for enforcing all hunting, fishing and other laws relating to the management, protection, propagation and conservation of wildlife. TWRA also has responsibility for enforcing and administering the Tennessee Boating Safety Act, Tenn.Code Ann. § 69-10-201, et seq. Testimony showed that the presence of the wildlife officer in the field is critical to the preservation and propagation of wildlife and officers are crucial in protecting the safety of the public, both on the waters and in the field.

The Tennessee Wildlife Resources Commission, a body of ten citizens appointed by the Governor of the State of Tennessee, is charged with appointing the executive director of the TWRA and setting his or her salary, as well as approving the agency's budget. The Commission also promulgates rules and regulations governing hunting and fishing seasons.

Wildlife officers in all four of the classifications —wildlife officer I (entry class), wildlife officer II (assistant supervisor), wildlife officer supervisor, and wildlife enforcement coordinator (chief of law enforcement)¹ —are responsible for the enforcement of boating, hunting, fishing, littering and pollution laws. Examples of the duties of wildlife officers are checking hunting and fishing licenses; inspecting vehicles for possession of illegal game; checking bag and creel limits; monitoring waters for speeders and intoxicated boaters; investigating reports of deer spotlighting, illegal fishing sites, and night hunting sites; and apprehending and arresting violators of fish, game and boating laws. Wildlife officers are on call 24 hours a day and are often called out at night to perform their duties. During peak seasons, such as the deer and duck seasons, officers may work long hours in adverse weather conditions. Wildlife officers in all classifications generally work without close supervision and frequently set their own schedules and work assignments.

The wildlife officers I are the primary enforcement officers in the field. Wildlife officers II perform the duties of wildlife officers I and, in addition, have responsibility for leading law enforcement patrols, making job assignments, and reviewing the reports of wildlife officers I. The wildlife officer supervisor participates in field duties with the officers I and II under his supervision approximately three days a week. His other duties include supervisory and administrative work. The wildlife enforcement coordinator or chief of law enforcement performs administrative tasks and acts as an advisor to the executive director of TWRA. He participates in enforcement activities in the field approximately ten days a year. The duties of a wildlife officer become less strenuous and more administrative as he or she progresses up the chain of command.

The EEOC has challenged the mandatory retirement statute, Tenn.Code Ann. § 8-36-205(2), which applies to wildlife officers employed by the TWRA, as being in violation of the ADEA. The ADEA prohibits discrimination in the employment of persons between 40 and 70 years of age. 29 U.S.C. §§ 623 and 631(a). Tenn.Code Ann. § 8-36-205(2) provides that

any member in service as a wildlife officer shall be retired upon the last day of the fiscal year during which he has attained age fifty-five (55) and has completed twenty-five (25) years of creditable service; provided, however, any such member who has not attained age sixty (60) may continue doing service to age sixty (60) upon application to and approval by the Wildlife Resources Commission.

Tenn.Code Ann. § 8-34-149 defines a wildlife officer as "any commissioned employee of the wildlife resources agency engaged in law enforcement activities on a day-to-day basis". TWRA has asserted as an affirmative defense that the mandatory retirement age of 55 for wildlife officers I and II, wildlife officer supervisor, and wildlife enforcement coordinator is lawful as a "bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the particular business." 29 U.S.C. § 623(f)(1).

TWRA employs 461 persons of which only 156 are wildlife officers subject to mandatory retirement at age 55. According to the testimony of Steve Adams, Director of the Tennessee Consolidated Retirement System (TCRS), James Dillard, Personnel Director of TWRA, and Gary Myers, Executive Director of TWRA, the only positions which are subject to mandatory retirement at age 55 under Tenn.Code Ann. § 8-36-205(2) are wildlife officer I, wildlife officer II, wildlife officer supervisor and wildlife enforcement coordinator.² Those employees who are not required to retire at age 55 include employees such as clerical workers who do no law enforcement work, as well as biologists and area managers who do limited law enforcement work.

The statute, Tenn.Code Ann. § 8-36-205(2), allows a wildlife officer to seek an extension from the Wildlife Resources Commission at age 55, if he is required to retire. Prior to 1979 no extensions were granted. Since 1979, the Commission has granted one-year extensions to seven different officers and some officers have received more than one extension. The latest extensions were granted on July 1, 1985. Testimony showed that the Commission, in granting the extensions, did not make individual determinations as to job performance, physical ability, or physical fitness, but rather based its decision on political factors and on the economic plight of the officers.³

The retirement statute also does not absolutely mandate an officer's retirement at age 55. To be eligible for full benefits at age 55 the officer must have 25 years of service. Thus, an officer hired after age 30 can work beyond age 55 without seeking an extension.⁴

There is also some question as to the retirement status of officers hired after July 1, 1976. On that date, state employees were put under a group uniform retirement system. Wildlife officers, hired after July 1, 1976, would appear to fall within group I, which has a mandatory retirement age of 60. Nevertheless, Steve Adams, Director of TCRS, testified that since the specific statute mandating retirement of wildlife officers at age 55 was not changed when the group uniform retirement system was put into effect, the TCRS has always considered the specific statute as controlling. Thus, both TCRS and TWRA maintain that wildlife officers must retire at age 55 if they have 25 years of service.

Prior to the passage of the mandatory retirement statute, there was no mandatory retirement age and some officers who were in declining health were not able to retire because of inadequate benefits. In 1967 and 1968 officials with the Tennessee Game and Fish Commission, the predecessor of TWRA, were concerned with the ability of persons over age 55 to perform effectively the job of wildlife officer. George Tucker Brown, a former Chief of Law Enforcement and a retired Assistant Chief of Enforcement, testified concerning his observation at the time of the passage of the statute that officers over age 55 were more likely to become ill. Brown attributed this to the long hours and strenuous working conditions. Ray Henry, a retired wildlife officer, also testified that prior to the time of the passage of the mandatory retirement statute informal staff meetings to discuss the problem of the inability of older persons to perform satisfactorily as wildlife officers were held. The consensus, according to Henry, was that after age 50 wildlife...