EEOC v. State of Hawaii
| Decision Date | 13 May 1991 |
| Docket Number | Civ. No. 91-00262 DAE. |
| Citation | 764 F. Supp. 158 |
| Parties | EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. STATE OF HAWAII; Office of the Administrative Director of the Courts, State of Hawaii; and The Judiciary, State of Hawaii, Defendants. |
| Court | U.S. District Court — District of Hawaii |
John de J. Pemberton, Jr., Marian Halley and Douglas J. Farmer, E.E.O.C., San Francisco Dist. Office, San Francisco, Cal., for plaintiff.
Warren Price, III, Ann Burns, Celia L. Jacoby and Charleen M. Aina, Deputy Attys. Gen., State of Hawaii, Honolulu, Hawaii, for defendants.
ORDER GRANTING THE EEOC'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
The motion of plaintiff Equal Employment Opportunity Commission ("EEOC") for a temporary restraining order and preliminary injunction came on for hearing before this court on May 13, 1991. Douglas J. Farmer, Esq. appeared for the EEOC; Ann V. Burns and Celia Jacoby, Deputy Attorneys General, appeared for defendants State of Hawaii, Office of the Administrative Director of the Courts, and the Hawaii Judiciary (collectively, "the State"). The court having reviewed the motion and the memoranda filed in support thereof and in opposition thereto, having heard oral argument of counsel, and being fully advised as to the premises herein, GRANTS the EEOC's motion for a temporary restraining order and preliminary injunction.
Judge Harry T. Tanaka ("Judge Tanaka"), Associate Judge of the Hawaii Intermediate Court of Appeals, will turn seventy (70) years old on May 15, 1991. Pursuant to a provision of the Hawaii Constitution, he is subject to mandatory retirement on his seventieth birthday. See Haw.Const. Art. VI, Sec. 3. Seeking to prevent Judge Tanaka's forced retirement, Judge James S. Burns ("Judge Burns"), Chief Judge of the Hawaii Intermediate Court of Appeals, filed a complaint with the EEOC on December 18, 1990. See Declaration of Paula Montanez (hereinafter "Montanez Declaration"), Exhibit "1." His complaint expressed the belief that the 70-year mandatory retirement age may violate the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA").
On January 14, 1991, after investigating Judge Burns' complaint and concluding Judge Tanaka's job performance had at all relevant times been above reproach, the EEOC issued a Letter of Violation finding Hawaii's mandatory retirement provision contravenes section 4(a) of the ADEA. See Montanez Declaration, Exhibit "2." Pursuant to section 7(b) of the ADEA, the EEOC attempted, through informal conciliation, to secure an agreement from the State that it would not enforce the mandatory retirement provision against Judge Tanaka. Montanez Declaration at ¶ 12. When those efforts proved unsuccessful, the EEOC filed its complaint in this court on May 1, 1991.
The EEOC now seeks an order restraining temporarily and enjoining preliminarily the State's enforcement of its mandatory retirement provision against Judge Tanaka. The issue dispositive of this case, whether the ADEA applies to appointed state judges, is currently pending before the United States Supreme Court. See Gregory v. Ashcroft, 898 F.2d 598 (8th Cir.1990), cert. granted, ___ U.S. ___, 111 S.Ct. 507, 112 L.Ed.2d 519 (1990). The Court heard oral argument in Gregory on March 18, 1991. Should the Court find state judges exempt from the ADEA under section 11(f) of that act, the EEOC has promised to voluntarily dismiss its complaint. Memorandum in Support at 4. On the other hand, the Supremacy Clause would prevent the State from compelling Judge Tanaka's retirement should the Gregory Court find appointed state judges protected by the ADEA.
This court has jurisdiction to enjoin practices that threaten a violation of the ADEA. 29 U.S.C. § 626(b). To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. Half Moon Bay Fishermans' Mktg. v. Carlucci, 857 F.2d 505, 507 (9th Cir.1988); Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.1984); Zepeda v. United States I.N.S., 753 F.2d 719, 727 (9th Cir.1983).
These formulations are not different tests; rather, they represent two points on a sliding scale in which the degree of irreparable harm that must be shown increases as the probability of success on the merits decreases. Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211, 1212 (9th Cir.1984) (citation omitted). "If the balance of harm tips decidedly toward the plaintiff, then the plaintiff need not show as robust a likelihood of success on the merits as when the balance tips less decidedly." Half Moon, 857 F.2d at 507. EEOC argues it is entitled to injunctive relief under the second test: it maintains that serious questions going to the merits are raised and that the balance of hardships tips sharply in its favor.
The ADEA protects "employees" from age discrimination. The ADEA excludes from its definition of "employee" any individual who is "an appointee on the policymaking level." 29 U.S.C. § 630(f). The parties here dispute whether Judge Tanaka, who was appointed by the governor, is an "appointee on the policymaking level." If he is not such an appointee, he is entitled to the ADEA's protections and cannot be forced to retire on his seventieth birthday.1 Because of a split in authority among the state and federal courts,2 the Supreme Court will decide this precise issue in Gregory. The State acknowledges that the Court's decision in Gregory will be dispositive of the EEOC's claim. See Certificate of Compliance with Fed.R.Civ.P. 65, Exhibit "3;" State's Memorandum in Opposition at 15.
Clearly, serious questions are raised regarding the State's right to insist on Judge Tanaka's retirement at age 70. The Ninth Circuit has not spoken on the issue presented, and the courts that have decided the issue squarely disagree. While a bare majority concludes appointed state judges are excluded from the ADEA's protections, see footnote 2 supra, it is far from clear that the Supreme Court will not decide otherwise.
The Supreme Court's decision in Gregory is likely to issue in a matter of weeks.3 Regardless which way the Court rules, its decision will dispose of this case. EEOC asks only that this court preserve the status quo until it has the benefit of the Gregory decision; it does not presently seek a permanent injunction.
The State says the EEOC can show no probability of success on the merits because its claim is time-barred. It suggests that under Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989) and Hamilton v. 1st Source Bank, 928 F.2d 86 (4th Cir.1990), the EEOC should have brought its complaint before January 1, 1990. The ADEA requires that charges be filed with the EEOC within 180 days after the unlawful practice has occurred. 29 U.S.C. § 626(d)(1). The State insists the unlawful practice occurred here on January 1, 1987, when Congress extended the ADEA's protections to persons over age 70. State's Memorandum in Opposition at 10. It says the ADEA's conflict with the Hawaii Constitution should have become evident when Congress took that action.
It is certainly arguable that the unlawful practice did not occur on January 1, 1987, but at some point earlier this year, when it became obvious the State intended to require Judge Tanaka's retirement on May 15, 1991. It is even arguable that the unlawful practice has not yet occurred, but will in fact take place on May 15, 1991, when Judge Tanaka actually becomes subject to Haw.Const. Art. VI, section 3.4 In addition, even if a court did find that the 180-day limitations period began to run on January 1, 1987, the EEOC could raise equitable tolling arguments to extend the period. Finally, the Lorance case itself states expressly that a facially discriminatory system "can be challenged at any time." 109 S.Ct. at 2269. A court could well find that Haw.Const. Art. VI, section 3 sets up a facially discriminatory retirement system. Thus, serious questions exist as to whether the EEOC's claim would fail on statute of limitation grounds.
The court finds the EEOC has satisfied the first prong of the Half Moon test for entitlement to preliminary injunctive relief. It has shown the existence of serious questions going to the merits of whether the State can compel Judge Tanaka's retirement.
The EEOC must also show that the balance of hardships tips sharply in its favor. Half Moon, 857 F.2d at 507. It has made that showing. EEOC points out that once removed from his position, Judge Tanaka will be effectively committed to retirement. Because of his age, it is unlikely he will be able to find other employment of comparable status and responsibility. Declaration of Harry T. Tanaka at ¶ 7 and Declaration of James S. Burns at ¶¶ 6 & 7 (). Financial hardship will also result to Judge Tanaka because his retirement benefits will be substantially less than his current salary. Tanaka Declaration at ¶ 6. No less importantly, Judge Tanaka's emotional and psychological health will suffer as a result of being forced to retire while he is still fully competent to perform his duties. Id. at ¶¶ 5 & 8.
The State avers that should the Supreme Court decide Gregory in Judge Tanaka's favor, Judge Tanaka could simply come out of retirement and reenter his post. State's Memorandum in Opposition at 6. The State cites H.R.S. § 88-98 in support of that assertion. This court's reading of section 88-98 does not confirm the State's argument. Section 88-98 says only that a retirant who returns to employment...
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