EEOC v. State of NJ, 84-2733

• Decision Date: 10 April 1986
• Docket Number: No. 84-2733,85-2905.,84-2733
• Citation: 631 F. Supp. 1506
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. STATE OF NEW JERSEY, New Jersey State Police, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

631 F. Supp. 1506

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. STATE OF NEW JERSEY, New Jersey State Police, et al., Defendants.

Nos. 84-2733, 85-2905.

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

April 10, 1986.

Carmen R. Matos, Reginald L. Sydnor, Philadelphia, Pa., for plaintiff, E.E.O.C.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BARRY, District Judge.

On August 8, 1985, after hearing twelve days of testimony from thirty witnesses in Civil No. 85-2905, this court denied the preliminary injunction sought by the Equal Employment Opportunity Commission ("EEOC"), and L.1985, c.175, which reestablished the long-standing mandatory retirement age of 55 for all sworn members of the New Jersey State Police, became effective on September 1, 1985. The court's 52 page opinion stated, in conclusion, that

Plaintiff has demonstrated little likelihood of success on the merits. Rather, defendants have made a substantial showing 1) that health and fitness are reasonably necessary to the essence of the business of the State Police which is to enforce the law and protect the public; 2) that all or substantially all State Police Officers aged 55 and over cannot safely and efficiently perform State Police duties because of diminished aerobic capacity; and 3) that a large percentage of officers aged 55 and older possess significant, but silent, coronary artery disease which would place themselves and others at risk during the performance of arduous State Police duties, and that the presence of coronary artery disease of this magnitude cannot be determined among officers over age 55 on an individualized basis except with reference to age.

This decision was not appealed to the Court of Appeals for the Third Circuit, and 62 sworn members aged 55 and older were mandatorily retired on September 1.¹

Following another four days of testimony from 16 witnesses, trial on the merits in Civil No's. 84-2733 and 85-2905 has now concluded.² Plaintiff established its prima facie case in both cases; indeed, it was undisputed that the mandatory retirement age of 55 at issue in both cases restricts the continued employment of sworn New Jersey State Police officers solely with reference to age. The burden thus shifted to defendants to demonstrate that those age restrictions constituted Bona Fide Occupational Qualifications ("BFOQ") within the meaning of the Age Discrimination in Employment Act ("ADEA") and, more specifically, 29 U.S.C. § 623(f)(1). Defendants rested on the substantial factual showing made by them at the preliminary injunction hearing³ and plaintiff proceeded to attempt to rebut that substantial showing. The evidence that plaintiff has presented has, if anything, strengthened the showing that defendants had heretofore made, and defendants surrebuttal case rendered inescapable the conclusion that I now reach as a matter of law — the mandatory retirement age of 55 established by L.1985, c.175 at issue in Civil No. 85-2905 and the mandatory retirement age of 55 at issue in Civil No. 84-2733 are valid and enforceable under the ADEA as BFOQ's which are reasonably necessary to the performance of the duties of the New Jersey State Police.

The court will not repeat the procedural and factual background of Civil No. 85-2905 so fully set forth in its earlier opinion. Neither will it repeat the extensive recitation of the evidence adduced at the earlier hearing except as necessary to provide context. Rather, the court will focus on that evidence which was presented at the trial in these consolidated actions and the effect of that evidence on the factual and legal conclusions heretofore made.

A. Continued Health and Fitness of all sworn members of the New Jersey State Police is Essential to Performance of that Agency's Public Safety Mission

There continues to be no serious dispute that the continued health and fitness of New Jersey State Police officers is essential to the safe and efficient performance of their law enforcement duties. Defendants have amply demonstrated the commitment of the New Jersey State Police to maintaining the continued health and fitness of its sworn members and plaintiff's experts have not challenged this demonstration in any meaningful way. As noted in my earlier opinion, the findings of which are incorporated by reference herein, prior to 1983 all officers participated in an annual fitness test, which measured the ability to perform rudimentary physical activities. See 620 F.Supp. at 985. As a result of the efforts of the State Police to reassess its physical fitness program following the decision of the Supreme Court in EEOC v. Wyoming, supra, it developed a comprehensive In-Service Fitness Screen to evaluate the physical condition of its members. Id. Following that assessment, the New Jersey State Police established what is known as the Well Trooper Program, which requires all sworn members to undergo complete annual medical examinations. In addition, as of the date of my earlier opinion, the Superintendent of State Police was awaiting the recommendation of a Physical Standards Committee as to ongoing physical training and performance standards for the State Police, as well as recommendations from the Duty Status Review Board as to appropriate action to be taken with respect to officers with health problems. Id. at 986.⁴

The testimony at trial has confirmed this court's prior findings as to the critical importance of the continued health and fitness of sworn New Jersey State Police officers, as well as the ongoing commitment of the New Jersey State Police to assure that all sworn members, of whatever age, possess the level of physical and medical fitness needed to safely and efficiently perform their duties. Specifically, the New Jersey State Police has continued not only the free medical care that has always been available but also its Well Trooper Program, with medical examinations of all sworn members presently being performed. In addition, a physical standards program has been adopted under which sworn members will pursue physical training and, commencing in the Spring of 1986, will be tested in a test to be given twice a year for adequate performance of a number of physical exercises, including a 1.5 mile timed run which will assure that all members possess a level of aerobic capacity of at least 41 mililiters of oxygen per kilogram per minute ("ml/kg/min."). With proper training, officers under age 55 of both sexes will be able to achieve and to maintain the aerobic capacity of 41 ml/kg/min. which I earlier found to be the minimum capacity necessary to perform basic law enforcement tasks. It should be noted that if an officer does not successfully complete the test or fails to take the test he or she shall be subject to reclassification in the former instance and disciplinary action in the latter.

Of equal significance are the efforts the New Jersey State Police has undertaken to review the duty status of its sworn members in light of their physical and medical conditions. The Superintendent has recently acted upon the recommendations of the Duty Status Review Board regarding the classification of officers in appropriate duty statuses on the basis of their physical and medical conditions. Those individuals classified as "permanently disabled" as a result of diagnosed heart conditions or other physical or medical problems precluding the safe and efficient performance of their duties are being required to retire. As one of plaintiff's experts observed, "It's pretty harsh in some cases, but I must admit they're attempting ... to do something about the health and fitness of the organization." T.306. During the processing of such retirement applications and the pendency of any administrative appeals regarding the classification of an individual as "permanently disabled",⁵ the officers affected have been placed in protective assignments which preclude their participation in any field law enforcement functions. However, all officers forced to leave the New Jersey State Police have been assured that, consistent with the Superintendent's past practice as to all officers (including those subject to mandatory retirement), all possible assistance will be provided to enable the affected individuals to secure suitable alternative employment.

The EEOC, in its attempt to show that health and fitness are not as important to the New Jersey State Police as it suggests, points to at least 59 sworn members with temporary or permanent disabilities and others whom the EEOC describes as having "serious" medical problems and who were still employed as of the date of trial. In this attempt, the EEOC ignores the fact that it is only recently that the Duty Status Review Board submitted its recommendations to the Superintendent and he immediately began to act on those recommendations. If over the many years of the existence of the State Police it was able to take care of its own including those injured in the line of duty, it has recognized for some time that, consistent with the paramilitary nature of the organization and the sincere emphasis it places on health and fitness, it cannot do so now. This tragic consequence prompts me to note that it comes with some ill grace for the EEOC in the course of raising the rights of one group to suggest that others should be precipitously discharged.

The EEOC also points to the testimony of Dr. Richard Mostardi, a physiologist who testified on behalf of the EEOC and offered his opinion that while some health and fitness is necessary to perform the job of a New Jersey State Police officer, the level of health and fitness defendants require is unnecessary. This opinion, which I reject, was based on four conclusions: (1) there has not been a meaningful evaluation of health and fitness during the careers of New Jersey State Police...