EEOC v. State of NJ, Civ. A. No. 85-2905.

• Decision Date: 07 October 1985
• Docket Number: Civ. A. No. 85-2905.
• Citation: 620 F. Supp. 977
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. STATE OF NEW JERSEY, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

620 F. Supp. 977

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. STATE OF NEW JERSEY, et al., Defendants.

Civ. A. No. 85-2905.

United States District Court, D. New Jersey, Civil Division.

October 7, 1985.

John Edmonds, Reginald Sydnor, Izzie Jenkins, Philadelphia, Pa., for plaintiff.

Irwin I. Kimmelman, Atty. Gen. of N.J. by Jonathan L. Williams, Michael R. Clancy, Deputy Atty. Gen., Trenton, N.J., for defendants.

OPINION

BARRY, District Judge.

The Division of State Police of the State of New Jersey is charged with the basic statutory mission of enforcing the laws of the State of New Jersey and providing services to municipal, county, and federal agencies. Under the leadership of Colonel Clinton L. Pagano, Superintendent of the State Police and, in that capacity, its chief administrative official, 2200 "sworn members" fulfill that mission. Because of its record of accomplishment, this widely diversified state level policing organization has achieved a nationwide reputation.

For more than thirty years, sworn members of the Division of State Police were required to retire at age 55. In 1983, however, the Supreme Court held in E.E.O.C. v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), that the Age Discrimination in Employment Act of 1967 ("ADEA"), 81 Stat. 602, as amended, 29 U.S.C. §§ 621-634, with its ban on age discrimination against individuals between the ages of 40 and 70, could be constitutionally applied to the states. Consequently, the Attorney General of the State of New Jersey declared the mandatory retirement statute unenforceable as of the March 2, 1983 Wyoming decision because no facts had yet been developed to support the conclusion that the mandatory retirement of sworn members at age 55 was valid under the bona fide occupational qualification (BFOQ) exception to the ADEA. That exception provides that:

It shall not be unlawful for an employer ... to take any action otherwise prohibited ... where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business....

81 Stat. 603, 29 U.S.C. § 623(f)(1). The New Jersey State Legislature subsequently repealed the mandatory retirement statute.

Thereupon the Division of State Police, with the legal assistance of the Attorney General, initiated a study to determine whether a factual basis existed to establish an age-specific retirement provision for the State Police under the BFOQ exception. As Colonel Pagano candidly observed, "I didn't even know what a BFOQ was, and very few of my peers knew what a BFOQ was. We were trying to determine whether the age-old standards that had been administered by law enforcement agencies across the country were in fact valid, and were they defensible under the statute."

As part of that study, two cardiologists, two physiologists, and a cardiologist who is also a physiologist were consulted to evaluate the job duties, statutory responsibilities and operational policies of the State Police and determine whether the continued fitness to perform those functions could be determined without reference to age. On the basis of the professional opinions provided to the Division, on December 19, 1984 the Division of State Police issued a Report on the Establishment of a Mandatory Retirement Age as a Bona Fide Occupational Qualification (hereinafter referred to as "BFOQ Report"). That Report concluded that a compelling factual basis exists to believe that all or substantially all persons aged 55 and over are unable to safely and efficiently perform State Police duties, and that it is impossible or impractical to determine the continued fitness of individuals over that age on an individualized basis. As one of the highest ranking members of the Division testified before me, a man, I note, who at 54 years of age would be eligible to replace the 56-year old second highest ranking member of the Division were I to accept the Report's conclusion, this is a "young man's operation".

Following the issuance of the Report, the New Jersey State Legislature held hearings, considered, and subsequently passed a statute establishing the requirement that all members of the State Police, other than the Superintendent, retire as of age 55.¹ The legislation specifically found and declared that retirement at age 55 constituted a BFOQ reasonably necessary to the continued health and fitness of the members of the State Police, and that such ongoing health and fitness was required for the safe and efficient protection of the public.² The Governor signed this legislation into law on May 31, 1985, and it will become effective on September 1, 1985. On that date, 62 members of the Division who will have reached the age of 55 will be required to retire absent relief from this court.

The Equal Employment Opportunity Commission ("EEOC")³ has brought this action naming the State of New Jersey, the State Police, and Colonel Clinton L. Pagano as defendants and alleging that the mandatory retirement statute violates the ADEA. Currently before the court is plaintiff's application for a preliminary injunction which, if granted, would prevent defendants from retiring state police officers at age 55.

It is clear that injunctive relief at a preliminary stage is only appropriate if it has been demonstrated that there exists a reasonable likelihood of eventual success on the merits as well the probability of irreparable injury if equitable relief is not immediately granted. Freixenet, S.A. v. Admiral Wine & Liquor Co., 731 F.2d 148, 150-51 (3d Cir.1984); Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir.1982) (en banc); Kennecott Corporation v. Smith, 637 F.2d 181, 187 (3d Cir.1980). A preliminary injunction must be denied if the moving party fails to satisfy both of these prerequisites. In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir.1982); Eli Lilly & Company v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir.), cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 (1980). It is also necessary to consider the effect, if any, the requested relief will have on the public interest, as well as the harm, if any, that relief will cause third parties. Oburn v. Shapp, 521 F.2d 142, 151 (3d Cir.1975). Thus, even with the mandatory nature of the likelihood of success and irreparable harm proof requirements, the court must consider whether the "delicate balancing" of all of the factors justifies the entry of interim relief. Glasco v. Hills, 558 F.2d 179, 180 (3d Cir. 1977); Kershner v. Mazurkiewicz, supra, 670 F.2d at 443.

This court has heard 30 witnesses presented and cross examined by skilled advocates over the course of twelve full days of testimony. Numerous exhibits were admitted into evidence and have been carefully reviewed. This court has had the benefit, as well, of the recent clarification by the Supreme Court of the appropriate test for determining whether age-related employment criteria are valid under the ADEA. Western Airlines v. Criswell, ___ U.S. ___, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985); Johnson v. Mayor of Baltimore, ___ U.S. ___, 105 S.Ct. 2717, 86 L.Ed.2d 286 (1985). It has also had the benefit of an even more recent decision of the Court of Appeals for the Third Circuit. EEOC v. Commonwealth of Pennsylvania, 768 F.2d 514 (3d Cir.1985). Based on all that is before it, it is the determination of this court that the application for a preliminary injunction should be denied.

I THE BFOQ EXCEPTION

Throughout the legislative history of the ADEA, one empirical fact is repeatedly emphasized: the process of psychological and physiological degeneration caused by aging varies with each individual. `The basic research in the field of aging has established that there is a wide range of individual physical ability regardless of age.' As a result, many older American workers perform at levels equal or superior to their younger colleagues. (footnote omitted)

And, thus, the tone was set in Criswell, supra, 105 S.Ct. at 2749.

Noting that "chronological age alone is a poor indicator of ability to perform a job," Id., at 2750 quoting H.R.Rep. No. 95-527, pt. 1, p. 2 (1977), Legislative History 362, the Court observed that "in both 1967 and 1978, however, Congress recognized that classifications based on age, like classifications based on religion, sex, or national origin, may sometimes serve as a necessary proxy for neutral employment qualifications essential to the employer's business." Id. That recognition is reflected, of course, in the BFOQ exception to the ADEA.

Having acknowledged the need for such an exception, the Court was quick to point out the limited scope and application ascribed to it first by the Secretary of Labor, 33 Fed.Reg. 9172 (1968), 29 C.F.R. § 860.102(b) (1984), and later by the EEOC, 46 Fed.Reg. 47727 (1981), 29 C.F.R. § 1625.6 (1984). Id. at 2750-51. Such consistently narrow interpretations, together with the restrictive wording of the statute itself, "convince us that, like its Title VII counterpart, the BFOQ exception `was in fact meant to be an extremely narrow exception to the general prohibition' of age discrimination contained in the ADEA." Id. at 2751, quoting Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 2729, 53 L.Ed.2d 786 (1977). However, the Court noted that the relevant legislative history indicated that the BFOQ exception was specifically intended to apply

in certain types of particularly arduous law enforcement activity where there may be a factual basis for believing that substantially all employees above a specified age would be unable to continue to perform safely and efficiently the duties of their particular jobs, and where it may be impossible or impractical to determine through medical examinations, periodic reviews of current job performance and other objective tests the employees' capacity or ability to continue to perform the jobs safely and efficiently. Id. 105 S.Ct. at

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