Feimer v. Ward
| Decision Date | 03 October 1984 |
| Citation | 487 N.Y.S.2d 458,127 Misc.2d 853 |
| Parties | Application of Ronald Eugene FEIMER, Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules v. Benjamin WARD, as Police Commissioner of the City of New York, and the City of New York Department of Personnel and the City of New York, Respondents. |
| Court | New York Supreme Court |
Sidney L. Meyer, New York City, for petitioner.
Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Thomas W. Bergdall, Susan R. Rosenberg and Christine M. Simone, New York City, of counsel), for respondents.
This is an application pursuant to CPLR Article 78 for an order directing the appointment of the petitioner as a New York City police officer, or, alternatively directing that petitioner's name be certified for the position of New York City Police Officer.
At the outset, the court notes that regardless of the merits of this application, the maximum relief to which petitioner would be entitled is a direction that petitioner's name be certified for appointment. The court is not empowered to direct the Police Commissioner to make an appointment (Matter of Berger v. Walsh, 291 N.Y. 220, 52 N.E.2d 105; Matter of Chikofsky v. Walsh, 296 N.Y. 642, 69 N.E.2d 683; Matter of Delicati v. Schechter, 3 A.D.2d 19, 157 N.Y.S.2d 715).
After filing for the 1981 Civil Service examination, number 1010, for the position of police officer in New York City, petitioner was notified that he was not qualified for such appointment. Section 434a-8.0(a) of the New York City Administrative Code states that "(o)nly persons shall be appointed patrolmen who shall be at the date of the filing of an application for civil service examination less than twenty-nine years of age." Petitioner was more than twenty-nine years of age on February 25, 1981 the date of filing for the examination.
Petitioner contends that Administrative Code § 434a-8.0 violates Executive Law § 296(1)(d) which makes it an unlawful discriminatory practice to discriminate as to age unless such discrimination is "based upon a bona fide occupational qualification" (BFOQ). Petitioner also contends that since the age limitation contained in Administrative Code § 434a-8.0 bears no rational relation to any legitimate state purpose, it is an unconstitutional denial of the equal protection of the law. Moreover, assuming arguendo the validity of the twenty-nine year age limitation, petitioner contends that the varying treatment of veterans and non-veterans (pursuant to Military Law § 243[10-a] and New York City Administrative Code § 1141-1.1 veterans are allowed to subtract, up to a total of six years, from maximum age requirements the time spent on military duty) is also an unconstitutional violation of the equal protection of the law.
Without question, the subject provision of the Administrative Code is discriminatory. However, almost every law can be classified as discriminatory since laws are, at least to some extent, inherently unequal and involve disparity in treatment of the individuals to which they are applicable. The constitutional guarantee of equal protection of the law does not require that every individual be treated equally under a particular law. Rather, the classifications which are made by the particular law must be reasonable. "If the classification has some 'reasonable basis,' it does not offend the Constitution simply because (it lacks) '... mathematical nicety or because in practice it results in some inequality' " (Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369; see also Matter of Levy, 38 N.Y.2d 653, 658-661, 382 N.Y.S.2d 13, 345 N.E.2d 556; Matter of Figueroa v. Bronstein, 38 N.Y.2d 533, 535-536, 381 N.Y.S.2d 470, 344 N.E.2d 402, appeal dismissed 429 U.S. 806, 97 S.Ct. 41, 50 L.Ed.2d 67).
The standard for determining the reasonableness of statutory classifications where, as here, no fundamental right is affected and the classification is not based on suspect classification (e.g. race, religion), is the traditional equal protection test: whether the classification is rational and furthers a proper governmental purpose. "Where there is neither a suspect classification nor an infringement on a fundamental right, a classification will be sustained as long as there is a rational relationship between the classes established and a legitimate governmental interest which is sought to be achieved" (Campagnola v. McGuire, 88 A.D.2d 577, 451 N.Y.S.2d 397). For the questioned classification to be rational it must be based on factors which justify the discriminatory treatment and there must be a reasonable relationship between the classification and the governmental interest sought to be achieved.
Age has been held to be a bona fide occupational qualification. The relationship between advancing age and decreasing physical ability was recognized in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520, where a compulsory retirement age was found to be constitutional. There the Supreme Court held that a rational relationship must exist between the state interest to be served and the means employed by the statute. The case involved a mandatory retirement age of 50 for Massachusetts State Police Officers. The Supreme Court held that Massachusetts could properly act to insure that state police officers could adequately perform their duties. The court found that age was a criterion related to the ability to perform the rigorous physical tasks of state police work and therefore was rationally related to the state interest to be served. The relationship between age and the ability to perform a job was also recognized in Air Line Pilots Ass'n, Int'l v. Quesada, 276 F.2d 892 [2nd Cir.1960], cert denied, 366 U.S. 962, 81 S.Ct. 1923, 6 L.Ed.2d 1254). There, a regulation of the Federal Aviation Administration imposing a compulsory age ceiling of 60 for airline pilots was upheld. The Second Circuit Court of Appeals noted that a comprehensive study conducted by the administrator of the FAA showed that at 60 a critical limit affecting performance had been passed. Age restrictions on applicants for appointments as police officers, specifically § 58(1) of the Civil Service Law (Civ.Serv.Law) which prescribes a maximum age limitation for police officers covered by state civil service, have consistently been upheld in this state (see Whitehair v. Civil Service Comm. of Monroe County, 56 A.D.2d 711, 392 N.Y.S.2d 583; Matter of Hawkins v. Kohn, 64 A.D.2d 628, 406 N.Y.S.2d 546; Matter of Spina v. County of Chautauqua, 50 A.D.2d 178, 376 N.Y.S.2d 53; State Division of Human Rights v. County of Monroe, 73 A.D.2d 1058, 425 N.Y.S.2d 412; Knapp v. Monroe County Civil Service Comm., 77 A.D.2d 817, 437 N.Y.S.2d 136). Holding that the action of the New York State Civil Service Commission in establishing 32 years of age as the maximum age for appointment as a correction officer was constitutional, the court in Matter of Figueroa v. Bronstein, supra, noted that a state statute, Civil Service Law § 54, permitted the Civil Service Commission to adopt reasonable minimum or maximum age requirements for positions such as policemen, firemen, prison guards, or other positions which required extraordinary physical effort (it is pursuant to Civil Service Law § 54 that the subject provision of the Administrative Code was promulgated). The court then determined that the duties and responsibilities of correction officers often called for the instantaneous availability, if not the use, of extraordinary physical effort in the circumstances of their performance of service. It also noted that "(N)ot only is it necessary to assure physical qualification on entry into the correction service, it is also desirable to anticipate continuing qualification for an extended period of service" (Matter of Figueroa v. Bronstein, supra, 38 N.Y.2d at 535, 381 N.Y.S.2d 470, 344 N.E.2d 402).
The Fourth Circuit Court of Appeals, in reviewing a West Virginia statute similar to the provision in question here found that "the primary function of the police is to protect persons and property and to maintain law and order" (Arritt v. Grisell, 567 F.2d 1267, 1272 [4th Cir.1977] ). It went on to find that the state had a legitimate interest in assuring the physical preparedness of the police and thus found the age limitation furthered a legitimate state purpose and did not violate the mandate of equal protection. The court did not, however, find that the age limitation was a bona fide occupational qualification since the plaintiff there had not been afforded the opportunity to rebut the state's affidavit in that regard. The court chose to allow the parties an opportunity to develop a full factual record and, thus, never reached the bona fide occupational qualification issue. Here the...
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